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EXHIBIT 4.8
AMENDED AND RESTATED
SECURITY AGREEMENT
between
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
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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.......................................4
2.4.Chief Executive Office; Records..................................5
2.5.Location of Inventory and Equipment..............................5
2.6.Recourse.........................................................6
2.7.Trade Names; Change of Name......................................6
ARTICLE III
SPECIAL PROVISIONS CONCERNINGRECEIVABLES;
CONTRACT RIGHTS; INSTRUMENTS .......................................6
3.1.Additional Representations and Warranties........................6
3.2.Maintenance of Records...........................................7
3.3.Direction to Account Debtors; Contracting Parties; etc...........7
3.4.Modification of Terms; etc.......................................8
3.5.Collection.......................................................8
3.6.Instruments......................................................8
3.7. Government Contracts...........................................8
3.8. Assignment of Claims Act Notices...............................9
3.9. Further Actions................................................9
ARTICLE IV
SPECIAL PROVISIONS CONCERNING MARKS .........................................10
4.1.Additional Representations and Warranties.......................10
(i)
3
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4.2.Licenses and Assignments........................................10
4.3.Infringements...................................................10
4.4.Preservation of Marks...........................................10
4.5.Maintenance of Registration.....................................11
4.6.Future Registered Marks.........................................11
4.7.Remedies........................................................11
ARTICLE V
SPECIAL PROVISIONS CONCERNING 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
(ii)
4
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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
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.............................32
10.10.Fees and Expenses of Collateral Agent..........................32
ARTICLE XI
MISCELLANEOUS
11.1.Notices.........................................................32
11.2.Waiver; Amendment...............................................33
11.3.Obligations Absolute............................................34
11.4.Successors and Assigns..........................................34
11.5.Headings Descriptive............................................35
11.6.Severability....................................................35
11.7.GOVERNING LAW...................................................35
11.8.Assignor's Duties...............................................35
11.9.Termination; Release............................................35
ANNEX A Schedule of Permitted Filings
ANNEX B Schedule of Record Locations
ANNEX C Schedule of Inventory and Equipment Locations
ANNEX D Schedule of Trade, Fictitious and Other Names
ANNEX E Schedule of Marks
(iii)
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ANNEX F Schedule of Patents and Applications
ANNEX G Schedule of Copyrights and Applications
(iv)
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AMENDED AND RESTATED COMPANY 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, between COLTEC INDUSTRIES INC, a Pennsylvania
corporation (the "Assignor"), 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, the Assignor, 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, or refinancing or restructuring (including, but not
limited to, the inclusion of additional guarantors or additional borrowers
thereunder that are Subsidiaries of the Assignor and whose obligations are
guaranteed by the Assignor 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 have consented in
writing to the refinancing or replacement
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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 Assignor to the Collateral Agent);
WHEREAS, the Assignor may at any time and from time to time
enter into (or guaranty obligations of one or more of its Subsidiaries under)
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 Assignor 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) 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 subsidiary guarantees to be entered into in
connection with the New Senior Notes, being herein called "Senior Note
Documents");
WHEREAS, the Assignor has heretofore entered into a Security
Agreement, dated as of March 24, 1992 (as amended, modified or supplemented
prior to the date hereof, the "Original Company 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 Assignor of the New Senior Notes that the Assignor shall
have executed and delivered to the Collateral Agent this Agreement; and
WHEREAS, the Assignor desires to execute this Agreement to (i)
satisfy the condition described in the preceding paragraph and (ii) amend and
restate the Original Company Security Agreement;
NOW, THEREFORE, in consideration of the extensions of credit
to be made to the Assignor 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 Assignor of the New
Senior Notes and other benefits accruing to the Assignor, the receipt and
sufficiency of which are hereby acknowledged, the 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:
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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, the
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 the 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 other Liens permitted under Section
9.01 of the Credit Agreement) in, all of the right, title and interest of the
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 the 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 the Assignor symbolized by the Marks, (vii) all Patents and
Copyrights, and all reissues, renewals or extensions thereof, (viii) all
computer programs of the Assignor and all intellectual property rights therein
and all other proprietary information of the 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 Company 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.
(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 the 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 the Assignor 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 the
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
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Collateral is permitted pursuant to this Agreement and the Credit Agreement)
shall be paid to the Assignor.
1.2. Power of Attorney. The 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 the 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
The 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 the 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. The Assignor is, and as to Collateral acquired by it
from time to time after the date hereof the Assignor will be, the owner of all
Collateral free from any Lien, security interest, encumbrance or other right,
title or interest of any Person (other than Liens created hereby, Liens
permitted under Section 9.01 of the Credit Agreement or evidenced by the
Permitted Filings), and the 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
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Hedging Agreement remains in effect or any obligations are owed with respect
thereto, the 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 the 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 the
Assignor is located at 3 Coliseum Center, 2550 West Tyvola Road, Charlotte,
North Carolina 28217. The Assignor will not move its chief executive office
except to such new location as the 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 the Assignor and the only original books of
account and records of the Assignor relating thereto are, and will continue to
be, kept at such chief executive office, at such other locations shown on Annex
B hereto or at such new locations as the 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 such chief executive
office or at such other locations shown on Annex B 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, the 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 the
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. The 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 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 the Assignor is located at one of the locations shown
on Annex C hereto. The Assignor agrees that all Inventory and all 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 C hereto, or such new location as
the Assignor may establish in accordance with the last sentence of this Section
2.5. The 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
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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 the
Assignor and pursuant to and upon all the warranties, representations,
covenants, and agreements on the part of the 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. The 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 (including, without limitation, any names of divisions or operations)
except its legal name and such other trade, fictitious or other names as are
listed on Annex D hereto. The 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 D hereto and new names (including, without
limitation, any names of divisions or operations) established in accordance with
the last sentence of this Section 2.7. The 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 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, the Assignor shall be deemed to have represented
and warranted that (x) such
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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 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. The 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 the Assignor will make the same available on the
Assignor's premises to the Collateral Agent for inspection, at the 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, the 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 the Assignor). If the
Collateral Agent so directs, the 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 the 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.
3.3. Direction to Account Debtors; Contracting Parties; etc. 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 the Assignor, the 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 the 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 the Assignor might have done. Without notice to or assent by the
Assignor, the Collateral Agent may apply any or all amounts then in, or
thereafter deposited in, the Cash Collateral
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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 the Assignor or the Collateral Agent, shall be borne by the Assignor.
3.4. Modification of Terms; etc. The Assignor shall not 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 the Assignor in the
ordinary course of business consistent with past practice. The 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. The 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 the Assignor in accordance with the
second sentence of Section 1.1(c) of this Agreement, the 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 the
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 the
Assignor or the Collateral Agent, shall be borne by the Assignor.
3.6.Instruments. If the Assignor owns or acquires any Instrument
constituting Collateral, the 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 Collateral Agent
appropriately endorsed to the order of the Collateral Agent as further security
hereunder.
3.7. Government Contracts. a)" \* MERGEFORMAT (a) The Assignor hereby
covenants and agrees that promptly after any request by the Collateral Agent,
the Assignor will provide to the Collateral Agent (i) notice setting forth in
reasonable detail all Government Contracts with respect to which the Assignor
reasonably expects to receive payments or other consideration with a value in
excess of $500,000 to which the 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.
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(b) The 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 of any Government Contract (other than a Restricted
Government Contract) with respect to which the Assignor reasonably expects to
receive payments or other consideration with a value in excess of $500,000 after
the date of such request, the 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) The 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) has changed, it shall give written notice of such change to the
Collateral Agent.
(d) The Assignor hereby covenants and agrees that it will not enter
into any Restricted Government Contract unless the 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 the
Assignor, the Assignor shall prepare and deliver to the Collateral Agent, with
respect to each Government Contract to which the 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), the 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 the
Assignor as shall be designated from time to time by the Collateral Agent. The
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 Section 1.1(c) directly file the notices and instruments
of assignment described in this Section 3.8.
(b) The 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. The 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
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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. The Assignor represents
and warrants that it is the true and lawful exclusive owner of the Marks listed
in Annex E hereto and that said listed Marks include all the United States
federal registrations or applications registered in the United States Patent and
Trademark Office that the Assignor now owns in connection with its business. The
Assignor represents and warrants that it owns or is licensed to use all Marks
that it uses. The Assignor further warrants that it is aware of no third party
claim that any aspect of the Assignor's present or contemplated business
operations infringes or will infringe any mark. The Assignor represents and
warrants that it is the owner of record of all U.S. Trademark registrations and
applications listed in Annex E hereto and that said registrations are valid,
subsisting, have not been cancelled and that the Assignor is not aware of any
third-party claim that any of said registrations is invalid or unenforceable.
The 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, the 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, the 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
Assignor's rights in and to any significant Mark, or with respect to any party
claiming that the Assignor's use of any significant Mark violates in any
material respect any property right of that party. The 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, the 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.
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4.5. Maintenance of Registration. Except as otherwise explicitly
permitted in the Credit Agreement, the 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. The 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 the 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 the 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 Assignor, take any or all of the following actions: (i)
declare the entire right, title and interest of the 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 Assignor's business symbolized by
the Marks and the right to carry on the business and use the assets of the
Assignor in connection with which the Marks have been used; and (iii) direct the
Assignor to refrain, in which event the Assignor shall refrain, from using the
Marks in any manner whatsoever, directly or indirectly, and, if requested by the
Collateral Agent, change the 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 registrations and any pending trademark application in the
United States Patent and Trademark Office to the Collateral Agent.
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ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS AND COPYRIGHTS
5.1. Additional Representations and Warranties. The Assignor represents
and warrants that it is the true and lawful exclusive owner of all rights in the
Patents listed in Annex F hereto and in the Copyrights listed 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 the Assignor
now owns. The Assignor represents and warrants that it owns or is licensed to
practice under all Patents and Copyrights that it now uses or practices under.
The Assignor further warrants that it is aware of no third party claim that any
aspect of the Assignor's present or contemplated business operations infringes
or will infringe any patent or any copyright. The 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, the 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. The Assignor agrees, promptly upon learning
thereof, to furnish the Collateral Agent in writing with all pertinent
information available to the Assignor with respect to any material infringement
or other material violation of the Assignor's rights in any significant Patent
or Copyright, or with respect to any claim that practice of any significant
Patent or Copyright materially violates any property right of that party. The
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, the 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, the Assignor shall
diligently prosecute all applications for United States patents listed in Annex
F hereto and shall not abandon any such application prior to exhaustion of all
administrative and judicial remedies, absent written consent of the Collateral
Agent.
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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 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 Assignor, take any or all of the following actions: (i) declare
the entire right, title, and interest of the 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 Assignor to refrain, in which event the Assignor shall
refrain, from practicing the Patents and Copyrights directly or indirectly, and
the 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. The Assignor will do
nothing to impair the rights of the Collateral Agent in the Collateral. The
Assignor will at all times keep its Inventory and Equipment insured in favor of
the Collateral Agent, at the 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 the 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) shall be deposited with the Collateral Agent. If the Assignor shall fail to
insure its Inventory and Equipment in accordance with the preceding sentence, or
if the 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 the 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. The Assignor assumes all liability and
responsibility in connection with the Collateral acquired by it and the
liability of the Assignor to pay the Obligations shall in no way be
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affected or diminished by reason of the fact that such Collateral may be lost,
destroyed, stolen, damaged or for any reason whatsoever unavailable to the
Assignor.
6.2. Warehouse Receipts Non-negotiable. The 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. The 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. The 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. The
Assignor will pay any applicable filing fees, recordation taxes and related
expenses. The Assignor authorizes the Collateral Agent to file any such
financing statements without the signature of the Assignor where permitted by
law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. Remedies; Obtaining the Collateral Upon Default. The 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 the 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
the 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 the 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 the 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 the
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 the Assignor in writing to deliver the same to the Collateral
Agent at any place or places designated by the Collateral Agent, in
which event the 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 the 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
the 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 may be sold, leased or otherwise
disposed of, in the condition in which the same existed when
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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 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 the Assignor or any
nominee of the 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 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 the 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 the Assignor as hereinabove specified,
the Collateral Agent need give the Assignor only such notice of disposition as
shall be reasonably practicable in view of such mandatory requirements of
applicable law. The 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 the
Assignor's expense.
7.3. Waiver of Claims. Except as otherwise provided in this Agreement,
THE 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 ASSIGNOR WOULD OTHERWISE HAVE UNDER
THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE, and the
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 delay the enforcement of this Agreement or
the absolute sale of the Collateral or any
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portion thereof, and the 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 the Assignor therein and thereto, and
shall be a perpetual bar both at law and in equity against the 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
the Assignor.
7.4. Application of Proceeds. a)" \* MERGEFORMAT (a) All moneys
collected by the Collateral Agent (or, to the extent a Mortgage to which the
Company 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 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 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 (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
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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.
(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
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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 the 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 the 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 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
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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 the 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) The Assignor 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 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
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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. The 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 Assignor shall assume full responsibility
for the defense thereof. Each Indemnitee agrees to use its best efforts to
promptly notify the Assignor of any such assertion of which such Indemnitee has
knowledge.
(b) Without limiting the application of Section 8.1(a), the Assignor
agrees to pay, or reimburse, the Collateral Agent for (if the Collateral Agent
shall have incurred fees, costs or expenses because the 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), the
Assignor 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 the
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 the Assignor under
this Section 8.1 are unenforceable for any reason, the 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 the 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 Assignor 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 a non-interest bearing
cash collateral account maintained with the Collateral Agent for the benefit of
the Secured Creditors.
"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.
"Contract Rights" shall mean all rights of the Assignor
(including, without limitation, all rights to payment) under each Contract.
"Contracts" shall mean all contracts between the Assignor and
one or more additional parties (including, without limitation, (i) each
partnership agreement to which the 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 the
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 the 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 the 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 the
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.
"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)
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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 the Assignor's claims, rights, powers,
privileges, authority, options, security interests, liens and remedies under any
partnership agreement to which the Assignor is a party or with respect to any
partnership of which the 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 the
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 Company Pledge
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 the
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 the Assignor.
"Marks" shall mean any trademarks and service marks now held
or hereafter acquired by the 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
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subdivision thereof and any application for such trademarks and service marks,
as well as any unregistered marks used by the 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 (i) the full and prompt payment when
due (whether at the stated maturity, by acceleration or otherwise) of (x) the
principal of and interest on the Notes issued, and Loans made, under the Credit
Agreement, and all reimbursement obligations and Unpaid Drawings with respect to
the Letters of Credit under the Credit Agreement and (y) all other obligations
(including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due), liabilities and indebtedness (including,
without limitation, indemnities, Fees and interest thereon) of the Assignor to
the Bank Creditors, now existing or hereafter incurred under, arising out of, or
in connection with the Credit Agreement and the other Credit Documents, and the
due performance of, and compliance with, all of the terms, conditions and
agreements contained in the Credit Agreement and the other Credit Documents by
the Assignor (all such principal, interest, obligations, liabilities and
indebtedness described in this clause (i) being herein collectively called the
"Credit Agreement Obligations"); (ii) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness of the Assignor to the Interest Rate Protection Creditors, now
existing or hereafter incurred under, arising out of or in connection with any
Interest Rate Protection or Other Hedging Agreement (including, without
limitation, all such obligations and liabilities of the Assignor under any
guarantee by it of obligations pursuant to any Interest Rate Protection or Other
Hedging Agreement), and the due performance of, and compliance with, all of the
terms, conditions and agreements contained therein by the Assignor (all such
obligations, liabilities and indebtedness described in this clause (ii) being
herein collectively called the "Interest Rate Protection Obligations"); (iii)
the full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all (x) principal of and interest on the New
Senior Notes and the New Senior Exchange Notes and (y) other obligations
(including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due), liabilities and indebtedness of the
Assignor to the Senior Noteholders, whether now existing or hereafter incurred
under, arising out of or in connection with the New Senior Notes, the New Senior
Exchange Notes and the other Senior Note Documents, and the due performance of,
and compliance with, all of the terms, conditions and agreements contained
therein by the Assignor (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,
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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 the 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 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 Company Security Agreement" shall have the meaning
provided in the fourth WHEREAS clause of this Agreement.
"Other Undisclosed Inventory" shall mean all Undisclosed
Inventory under and as defined in the Subsidiaries Security Agreement.
"Patents" shall mean any United States patent to which the
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 the Assignor.
"Permitted Filings" shall have the meaning provided in Section
2.1 of this Agreement.
"Pledged Securities" shall have the meaning provided in the
Company 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 the 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 the 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.
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"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 the Assignor and, in any event, shall
include, but shall not be limited to, all of the Assignor's rights to payment
for goods sold or leased or services performed by the 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 the Assignor
to secure the foregoing, (b) all of the 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 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 Company 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.
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"Senior Note Obligations" shall have the meaning provided in
the definition of "Obligations" in this Article IX.
"Syndication Agent" shall have the meaning provided in the
first WHEREAS clause of this Agreement.
"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.
(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.
(c) The Collateral Agent shall not be required to ascertain or inquire
as to the performance by the Assignor of any of the covenants or agreements
contained in this Agreement, any other Credit Document or any other Secured Debt
Document.
(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
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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.
(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 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 the Assignor
and its 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 the Assignor and its
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 the Assignor or any Subsidiary of the Assignor 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 the
Assignor or any Subsidiary of the Assignor, 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 Assignor thereto or as to the security
afforded by this Agreement.
10.4. Certain Rights of the Collateral Agent. a)" \* MERGEFORMAT (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
-29-
35
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 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.
(b) 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.
(c) 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 Assignor 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
-30-
36
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 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 the Assignor or any Affiliate or
Subsidiary of the 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 the 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, as the case may be, of such Note or Note issued in exchange therefor.
-31-
37
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
Assignor and the Secured Creditors. Such resignation shall take effect upon the
appointment of a successor Collateral Agent pursuant to clause (b) or (c) below.
(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 Assignor, 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
Assignor 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) The Assignor (by its
execution and delivery hereof) hereby agrees that it shall 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, the
Assignor hereby agrees 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 the Assignor.
(b) In addition, the Assignor agrees 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 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:
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38
(a) if to the Assignor, at:
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 Assignor 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 Assignor 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 the Assignor 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 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
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39
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. The obligations of the 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 the 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; or (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 invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; whether or not
the Assignor shall have notice or knowledge of any of the foregoing.
11.4. Successors and Assigns. This Agreement shall be binding upon the
Assignor and its 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 the Assignor may not transfer or assign any or all of its
rights or obligations hereunder without the written consent of the Collateral
Agent (with the consent of the Required Secured Creditors). All agreements,
statements, representations and warranties made by the Assignor herein or in any
certificate or other instrument delivered by the Assignor or on its behalf under
this Agreement shall be considered to have been relied upon 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.
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40
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. Assignor's Duties. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that the 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 the Assignor under or with
respect to any Collateral.
11.9. Termination; Release. a)" \* MERGEFORMAT (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 Assignor, will execute and
deliver to the Assignor a proper instrument or instruments acknowledging the
satisfaction and termination of this Agreement, and will duly assign, transfer
and deliver to the 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
the 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 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) 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
-35-
41
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 Assignor, and without the further consent of, or
liability to, any Secured Creditor, release such Collateral and execute and
deliver to the Assignor a proper instrument or instruments acknowledging the
release of such Collateral from this Agreement, and will duly assign, transfer
and deliver to the 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(b), 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(b) 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).
(c) At any time that the 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) or (b), 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) or (b), 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), the
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 Collateral pursuant to Section 11.9(a) or (b),
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 Assignor and the
Collateral Agent.
11.11. Amendment and Restatement. Upon the execution and delivery of
this Agreement by the parties hereto, the Original Company 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 Company Security
Agreement continuing from the date thereof.
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42
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.
ADDRESSES
3 Coliseum Center COLTEC INDUSTRIES INC,
2550 West Tyvola Road as Assignor
Charlotte, NC 28217
Attention: Thomas B. Jones, Jr.
By /s/ THOMAS B. JONES, JR.
--------------------------------
Title: Vice President and
Treasurer
One Bankers Trust Plaza BANKERS TRUST COMPANY,
130 Liberty Street as Collateral Agent
New York, New York 10006
Attention: Mary Kay Coyle
By /s/ ANTHONY LOGRIPPO
--------------------------------
Title: Vice President
43
ANNEX A
To
Company Security Agreement
--------------------------
SCHEDULE OF PERMITTED FILINGS
-----------------------------
Secured Original Description
Location Party/ies Number File Date of Collateral Permitted
44
ANNEX B
to
COMPANY SECURITY AGREEMENT
SCHEDULE OF RECORD LOCATIONS
Assignor Location County
- -------- -------- ------
Coltec Industries Inc Three Coliseum Centre Mecklenburg
2550 West Tyvola Road
Charlotte, NC 28217
DIVISIONS
1. Chandler Evans Control Charter Oak Boulevard Hartford
Systems Division P. O. Box 330651
W. Hartford, CT 06133-0651
2. Coltec Specialty Products 9426 Old Katy Rd. Harris
Division Houston, TX 77055
a. Specialty Products - Burnet 101 John Kelly Drive Burnet
Burnet, TX 78611
b. Repro-Lon-Burnet 203 Repro Drive Burnet
Burnet, TX 78611
c. Freeport Facility 1404 N. Ave. J Brazoria
Freeport, TX 77541
3. Delavan Spray Technologies 4115 Corporate Center Dr. Union
Monroe, NC 28110
a. Delavan Fuel Metering P. O. Box 969 Bamberg
U.S. Highway 301 South
Bamberg, SC 29003
4. Fairbanks Morse Engine Division 701 White Avenue Rock
Beloit, WI 53511
a. Fairbanks Morse Engine Northwoods Industrial Park West Harris
Division Houston Facility 12253 F.M. 529
Houston, TX 77041
45
Assignor Location County
- -------- -------- ------
b. Fairbanks Morse Engine 630 Tidewater Dr. Independ.
Division Norfolk, VA 23504 City of
Norfolk
c. Fairbanks Morse Engine 18926 13th Place South King
Division Seattle, WA 98148
5. Garlock Helicoflex 2770 The Boulevard Richland
P. O. Box 9889
Columbia, SC 29209
6. Lewis Engineering 238 Water Street New Haven
Naugatuck, CT 06770-0231
a. Delavan Process Instrumentation 11 Rado Drive New Haven
P. O. Box 559
Naugatuck, CT 06770-0559
7. Menasco Aerospace Texas 4000 South Highway 157 Tarrant
Euless, TX 76040-7012
8. Quincy Compressor Division 3501 Wismann Lane Adams
Quincy, IL 62301-3116
a. Bay Minette 701 North Dobson Ave. Baldwin
Bay Minette, AL 36507-3174
9. Sterling Die Operation 13811 Enterprise Avenue Cuyahoga
Cleveland, OH 44135-5196
-2-
46
ANNEX B
to
Company Security Agreement
SCHEDULE OF RECORD LOCATIONS
Location County
- -------- ------
47
ANNEX C
to
Company Security Agreement
SCHEDULE OF INVENTORY AND EQUIPMENT LOCATIONS
ADDRESS STATE COUNTY
- ------- ----- ------
48
ANNEX D
to
Company Security Agreement
SCHEDULE OF TRADE, FICTITIOUS AND OTHER NAMES
49
ANNEX E
to
Company Security Agreement
SCHEDULE OF MARKS
50
ANNEX F
to
Company Security Agreement
SCHEDULE OF PATENTS AND APPLICATIONS
Patent Number Date Issued
(Application) (Applied)
- ------------- ---------
51
Annex F
to
Company Security Agreement
52
Annex G
to
Company Security Agreement
SCHEDULE OF COPYRIGHTS AND APPLICATIONS
53
ANNEX C
to
COMPANY SECURITY AGREEMENT
SCHEDULE OF INVENTORY AND EQUIPMENT LOCATION
Assignor Location County
- -------- -------- ------
Coltec Industries Inc Three Coliseum Centre Mecklenburg
2550 West Tyvola Road
Charlotte, NC 28217
DIVISIONS
Chandler Evans Control Charter Oak Boulevard Hartford
Systems Division P. O. Box 330651
W. Hartford, CT 06133-0651
Coltec Specialty Products 9426 Old Katy Rd. Harris
Division Houston, TX 77055
a. Specialty Products - Burnet 101 John Kelly Drive Burnet
Burnet, TX 78611
b. Repro-Lon-Burnet 203 Repro Drive Burnet
Burnet, TX 78611
c. Freeport Facility 1404 N. Ave. J Brazoria
Freeport, TX 77541
Delavan Spray Technologies 4115 Corporate Center Dr. Union
Monroe, NC 28110
a. Delavan Fuel Metering P. O. Box 969 Bamberg
U.S. Highway 301 South
Bamberg, SC 29003
Fairbanks Morse Engine Division 701 White Avenue Rock
Beloit, WI 53511
a. Fairbanks Morse Engine Northwoods Industrial Park West Harris
Division Houston Facility 12253 F.M. 529
Houston, TX 77041
54
b. Fairbanks Morse Engine 630 Tidewater Dr. Independ.
Division Norfolk, VA 23504 City of
Norfolk
c. Fairbanks Morse Engine 18926 13th Place South King
Division Seattle, WA 98148
Garlock Helicoflex 2770 The Boulevard Richland
P. O. Box 9889
Columbia, SC 29209
Lewis Engineering 238 Water Street New Haven
Naugatuck, CT 06770-0231
a. Delavan Process Instrumentation 11 Rado Drive New Haven
P. O. Box 559
Naugatuck, CT 06770-0559
Menasco Aerospace Texas 4000 South Highway 157 Tarrant
Euless, TX 76040-7012
Quincy Compressor Division 3501 Wismann Lane Adams
Quincy, IL 62301-3116
a. Bay Minette 701 North Dobson Ave. Baldwin
Bay Minette, AL 36507-3174
Sterling Die Operation 13811 Enterprise Avenue Cuyahoga
Cleveland, OH 44135-5196
-2-
55
ANNEX D
to
COMPANY SECURITY AGREEMENT
SCHEDULE OF TRADE, FICTITIOUS AND OTHER NAMES
Divisions of the Company
Chandler Evans Control Systems
Delavan Spray Technologies
Fairbanks Morse Engine
Lewis Engineering
Menasco Aerospace Texas
Quincy Compressor
Sterling Die
Coltec Specialty Products
Tex-O-Lon
Repro-Lon
Garlock Helicoflex
Operations of the Company
None
56
Annex E
TO
COMPANY SECURITY AGREEMENT
UNITED STATES TRADEMARK REGISTRATIONS AND APPLICATIONS
OWNED BY COLTEC INDUSTRIES INC
Registration No. Registration Date Mark
- ---------------- ----------------- ----
1,595,097 May 8, 1989 AUTOCOACH
845,374 March 5, 1968 CENTRI-VAC
1,504,797 September 20, 1988 CONTENDER
1,656,150 September 10, 1991 DEMAND-A-MATIC
1,050,018 October 12, 1976 DOMINATOR
1,133,503 April 22, 1980 DOMINATOR
1,118,641 May 22, 1979 ECONOMASTER
1,896,777 May 30, 1995 ENVIRO DESIGN
1,297,367 September 25, 1984 FAIRBANKS MORSE
1,874,506 January 17,1995 FMD
1,595,098 May 8, 1990 FUELCOACH
1,020,361 September 16, 1975 HOLLEY
1,021,903 October 17, 1975 HOLLEY
1,062,188 March 29, 1977 HOLLEY
1,120,891 June 26, 1979 HOLLEY
188,941 September 9, 1924 HOLLEY
1,844,076 July 12, 1994 HOLLEY
1,712,058 September 8, 1992 IQ-500
1,754,899 March 2, 1993 IQ-750
57
ANNEX E
Page 2
858,916 October 22, 1968 LE
1,353,694 August 13, 1985 MASTER-FIT
1,270,570 March 20, 1984 MEP & DESIGN
1,016,317 July 22, 1975 M/T
658,999 March 4, 1978 MOLONEY
700,479 July 5, 1960 PEP
1,553,662 August 29, 1989 PRO DOMINATOR
1,778,849 June 29, 1993 PRO-JECTION
1,655,245 September 3, 1991 QA
1,654,761 August 27, 1991 QE
1,676,566 February 25, 1992 QQ
1,821,009 February 15, 1994 QR-25
1,654,763 August 27, 1991 QRD
1,654,762 August 27, 1991 QSI
1,821,010 February 15, 1994 QTS
1,821,011 February 15, 1994 QT
1,578,649 January 23, 1990 QUANTUM
1,824,058 March 1, 1994 QUINC-CIP
1,874,995 January 24, 1995 QUINSYN-F
1,955,520 February 13, 1996 QUINSYN
1,657,165 September 17, 1991 QUINCY
1,656,010 September 10, 1991 QUINCY AIR MASTER
578,458 August 11, 1953 QUINCY COMPRESSORS
58
ANNEX E
Page 3
1,159,708 July 7, 1981 RENEW KIT
1,066,680 May 31, 1977 STREET DOMINATOR
1,050,017 October 12, 1976 STRIP DOMINATOR
1,658,217 September 24, 1991 THE ENGINE BUILDER
1,750,137 February 2, 1993 THE PRIDE AND THE POWER
1,557,635 September 26, 1989 TRICK KIT
1,730,640 November10, 1992 VOLUMAX
2,132,398 January 27, 1998 Ortman Logo
Pending Applications:
Serial No. Filing Date Mark
- ---------- ----------- ----
75/009,602 October 16, 1995 HOLLEY
75/070,904 March 11, 1996 POWER$YNC
75/319,517 July 3, 1997 Q-SERV
75/249,484 February 28, 1997 Q911
75/249,485 February 28, 1997 QUIN-C-BLUE
75/349,741 September 2, 1997 DOMINATOR
75/349,914 August 28, 1997 STRIP DOMINATOR
75/400,240 December 4, 1997 QQ & Design
75/400,584 December 5, 1997 MENASCO
59
Annex F
to
Company Security Agreement
None
60
Annex G
to
Company Security Agreement
UNITED STATES PATENTS AND PATENT APPLICATIONS
OWNED BY COLTEC INDUSTRIES INC
Patent No. Issue Date Title
- ---------- ---------- -----
4,193,947 03/18/80 Carbureting Discharge Means
4,197,822 04/15/80 Circuit Means and Apparatus for
Controlling the Air-Fuel Ratio Supplied
to a Combustion Engine
4,213,735 07/22/80 Constant Flow Centrifugal Pump
4,223,749 09/16/80 Pulse Generating Means
4,223,651 09/23/80 Solenoid Vacuum Control Valve
Means and Apparatus for Controlling the
Air-Fuel Ratio Supplied to a Combustion
Engine
4,224,908 09/30/80 Apparatus and System for
Controlling the Air-Fuel Ration Supplied
to a Combustion Engine
4,225,536 09/30/80 Power Valve
4,230,645 10/28/80 Induction Passage Structure
4,232,372 12/04/80 Positive and Negative Acceleration
Responsive Means and System
4,246,875 01/27/81 Apparatus and System for Controlling the
Air-Fuel Ratio Supplied to a Combustion
Engine
4,246,929 01/27/81 Temper Proof Idle Adjusting Screws.
4,247,263 01/27/81 Pump Assembly Including Vane and Impeller
4,258,317 03/24/81 Combination Analog-Digital Indicator
61
ANNEX G
Page 2
4,269,062 05/26/81 Method for Gauging Fluid Flow
4,283,353 08/11/81 Tamper Proof Sealing Plug
4,289,460 09/15/81 Bearing Lubricating System for Gear Pump
4,294,282 10/13/81 Apparatus and System for Controlling the
Air-Fuel Ratio Supplied to a Combustion
Engine
4,302,931 12/01/81 Fuel Flow Limiting Device
4,306,441 12/22/81 Method and Apparatus for Manufacturing
and Forming Engine Induction Passage
Venturi
4,307,451 12/22/81 Backup Control
4,318,214 03/09/82 Method and Apparatus for Manufacturing
and Forming Engine Induction Passage
Venturi
4,325,339 04/20/82 Apparatus and System for Controlling the
Air-Fuel Ratio Supplied to a Combustion
Engine
4,354,809 10/19/82 Fixed Displacement Vane Pump with Pumping
4,357,283 11/02/82 Carburetor
4,361,073 11/30/82 Sub Critical Control Mechanism
4,393,651 07/19/83 Fuel Control Method and Apparatus
4,395,441 07/26/83 Method of Coating Liquid Penetrable
Articles with Polymeric Dispersions
4,408,418 10/11/83 Through Feed Cylindrical Dies
4,408,953 10/11/83 High Performance Centrifugal Pump
4,408,961 10/11/83 Jet Pump with Integral Pressure Regulator
62
ANNEX G
Page 3
4,415,855 11/15/83 Combination Analog-Digital Indicator
4,417,734 11/29/83 Shaft Seal Assembly
4,423,593 01/03/84 Fuel Control for Controlling Helicopter
Rotor/Turbine Acceleration
4,434,762 03/06/84 Apparatus and System for Controlling the
Air-Fuel Ratio Supplied to a Combustion
Engine
4,434,763 03/06/84 Apparatus and System for Controlling the
Air-Fuel Ratio Supplied to a Combustion
Engine
4,453,378 06/12/84 Torsional Mode Suppressor
4,454,754 06/19/84 Engine Failure Detection
4,462,268 07/31/84 Anti-Twist Throttle Lever
4,464,895 08/14/84 Gas Turbine Engine Starting Technique
and Control
4,465,640 08/14/84 Adjustable Choke Linkage Means
4,466,526 08/21/84 Helicopter Engine Control with Dela
Anticipator
4,467,640 08/28/84 Gas Turbine Engine Power Availability
Measurement
4,470,118 09/04/84 Gas Turbine Engine Fuel Control
4,478,038 10/23/84 Manual Training Mode for Fuel Control
4,483,508 11/20/84 Gradient Power Valve Assembly
4,487,548 12/11/84 Centrifugal Main Fuel Pump Having
Starting Element
4,488,236 12/11/84 Helicopter Cruise Fuel Conserving Engine
Control
63
ANNEX G
Page 4
4,490,791 12/25/84 Adaptive Gas Turbine Acceleration Control
4,493,465 01/15/85 Helicopter Engine Torque Compensator
4,493,623 01/15/85 Oil Lube Drive Shaft for Fuel Pump
4,500,268 02/19/85 Rotary Pump Having Brake Means with
Thermal Fuse
4,500,966 02/19/85 Super Contingency Aircraft Engine Control
4,502,842 03/05/85 Multiple Compressor Controller
4,529,361 07/16/85 Vane Pump with Spokes with U-Shaped Vanes
4,537,025 08/27/85 Electronic Fuel Control with Manual Train
4,546,539 10/15/85 Dies for Producing Swedge Form Thread
4,556,032 12/03/85 Adapter Means for Creating an Open Loop
Manually Adjustable Apparatus and System
for Selectively Controlling the Air-Fuel
Ratio Supplied to a Combustion Engine
4,558,673 12/17/85 Electronic Ignition System For Internal
Combustion Engines
4,573,376 03/04/86 Method of Producing Thread Die
4,576,033 03/18/86 Thread Rolling Die Construction
4,578,945 04/01/86 Limiter for Gas Turbine Fuel Control
4,605,235 08/12/86 Shaft Seal Assembly for Fuel Pumps
4,608,820 09/02/86 Dual Stepper Motor Actuator
64
ANNEX G
Page 5
4,608,880 09/02/86 Push Pull Multiplier Linkage
4,611,093 09/09/86 Electric Bushing Having Replaceable Stud
4,628,797 12/16/86 Rotary Actuator
4,629,394 12/16/86 Centrifugal Pump with Low Flow Diffuser
4,631,947 12/30/86 Thread Rolling Dies
4,643,635 02/17/87 Vapor Core Pump with Impeller
4,666,348 05/19/87 Cutter for Thread Rolling Dies
4,669,735 06/02/87 Fail Safe High Pressure Seal
4,681,178 06/21/87 Vehicular Intake Scoop
4,711,619 12/08/87 Fuel Pump with Reduced Displacement
4,713,954 12/22/87 Self Pointing Thread Rolling Dies
4,716,751 01/05/88 Non-Slip Thread Rolling Dies
4,736,155 04/05/88 Transducer Temperature Control
4,736,331 04/05/88 Helicopter Hover Indicator
4,754,927 07/05/88 Control Vanes
4,793,133 12/27/88 Manual Backup/Fuel Control
4,793,219 12/27/88 Method of Manufacturing Thread Rolling
Dies
4,804,313 02/14/89 Side Channel Fuel Pump
4,873,955 10/17/89 Idle Air Flow Shutoff Valve
4,929,260 05/29/90 Adjustable Air Cleaner Fastening Assembly
4,969,444 11/13/90 Transfer System for Comb Engine Fuel
65
ANNEX G
Page 6
5,010,487 04/23/91 Engine Diagnostic Program
5,012,780 05/07/91 Stand Alone Fuel Injection System
5,020,316 06/04/91 Helicopter Control with Decay
Anticipation
5,230,952 06/27/93 Improved Friction Material
5,208,540 05/04/93 Ignition Performance Monitor and
Monitoring Method for Capacitive
Discharge Ignition Systems
5,297,520 03/29/94 Fuel Supply System With High Turn Down
Ratio
5,367,875 11/29/94 Automated Catalytic Reduction System
Des.348,429 07/05/94 Insulating Cover for Pole Bracket
Supports
5,413,466 5/9/95 Unified Fuel Pump Assembly
5,490,387 2/13/96 Flame-Out Resistant Fuel Pumping System
5,545,014 8/13/96 Variable Displacement Vane Pump,
Component Parts and Method
5,545,018 8/13/96 Variable Displacement Vane Pump Having
Floating Ring Seal
5,551,404 9/3/96 Fuel Injection System For Marine Engines
5,556,271 9/17/96 Valve System for Capacity Control of a
Screw Compressor and Method of
Manufacturing Such Valves
5,694,682 12/9/97 Valve System for Capacity Control of a
Screw Compressor and Method of
Manufacturing Such Valves
66
ANNEX G
Page 7
5,713,724 2/3/98 System and Methods for Controlling
Rotary Screw Compressors
5,716,201 2/10/98 Variable Displacement Vane PumpWith Vane
Tip Relief
5,726,891 3/10/98 Surge Detection System Using Engine
Signature
5,733,109 3/31/98 Variable Displacement Vane PumpWith
Regulated Vane Loading
67
ANNEX G
Page 8
Pending Applications:
Serial No. Filing Date Description
- ---------- ----------- -----------
08/500,297 July 10, 1995 Variable Displacement Vane Pump
Adjustable By Low Actuation Loads
08/509,400 July 31, 1995 Variable Displacement Vane Pump Having
Cam Seal With Seal Land
08/544,374 October 17, 1995 Low Actuation Friction Cam Seal
08/890,144 July 9, 1997 Floating Wrist Pin for Piston Assembly
08/946,635 October 8, 1997 System and Methods for Controlling
Rotary Screw Compressors
08/960,388 October 29, 1997 Method and Apparatus for Adjusting the
Rotors of a Rotary Screw Compressor
68
Annex H
to
Company Security Agreement
UNITED STATES COPYRIGHT REGISTRATIONS
OWNED BY COLTEC INDUSTRIES INC
Registration No. Effective Date Description
- ---------------- -------------- -----------
VAu 338-209 May 9, 1996 TA-7 Fuel Control System Technical
Drawings Volume #1
VAu 338-210 May 9, 1996 TA-7 Fuel Control System Technical
Drawings Volume #2
VAu 338-212 May 9, 1996 TA-7 Fuel Control System Technical
Drawings Volume #3
VAu 338-211 May 9, 1996 TA-7 Fuel Control System Technical
Drawings Volume #4