AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT (as it may be
amended or modified from time to time, the "Security Agreement") is entered into
as of May 3, 2005 by and among Dura Automotive Systems, Inc., a Delaware
corporation, Dura Operating Corp., a Delaware corporation, Dura Automotive
Systems (Canada), Ltd., an Ontario corporation, each of the U.S. Subsidiary
Guarantors party hereto and each of the Canadian Subsidiary Guarantors party
hereto (each of the foregoing, together with each other Person which may from
time to time become a party hereto as a Grantor, individually a "Grantor" and
collectively, "Grantors") and Bank of America, N.A., in its capacity as
collateral agent (the "Collateral Agent") for the Secured Parties (as defined
below).
PRELIMINARY STATEMENT
The Grantors, the other Loan Parties, JPMorgan Chase Bank, N.A., as
Administrative Agent, Issuing Bank and Swingline Lender, the Collateral Agent
and the Lenders are entering into a Fifth Amended and Restated Credit Agreement
dated as of May 3, 2005 (as it may be amended or modified from time to time, the
"Credit Agreement"), whereby, among other things, the parties desired to amend
and restate their rights and obligations under their existing credit agreement
("Existing Credit Agreement").
In connection with the Loan Parties' Existing Credit Agreement and
pursuant to a series of security agreements, reaffirmations and joinders thereto
(the "Existing Security Agreements"), the Loan Parties granted Liens on
substantially all of their personal property to secure their obligations under
the Existing Credit Agreement.
The Grantors are entering into this Security Agreement in order to grant a
continuing Lien on the Collateral, and to amend and restate and continue the
Liens granted under the Existing Security Agreements, in each case in order to
secure the Secured Obligations that they have agreed are owing by the Grantors
(whether as a Borrower or as a Guarantor) and to induce the Lenders to continue
to extend credit to the Borrowers under the Credit Agreement.
ACCORDINGLY, the Grantors and the Collateral Agent, on behalf of the
Secured Parties, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Terms Defined in Credit Agreement. All capitalized terms used herein
and not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement.
1.2 Terms Defined in UCC. Terms defined in the UCC which are not otherwise
defined in this Security Agreement are used herein as defined in the UCC.
1.3 Definitions of Certain Terms Used Herein. As used in this Security
Agreement, in addition to the terms defined in the Preliminary Statement, the
following terms shall have the following meanings:
"Accounts" shall have the meaning set forth in Article 9 of the UCC.
"Article" means a numbered article of this Security Agreement, unless
another document is specifically referenced.
"Bankruptcy Code" means title 11, United States Code, as amended from time
to time, and any successor statute thereto.
"Borrowing Base Certificate" means the Canadian Borrowing Base Certificate
and/or the U.S. Borrowing Base Certificate delivered pursuant to the Credit
Agreement.
"Chattel Paper" shall have the meaning set forth in Article 9 of the UCC.
"Closing Date" means the date of the Credit Agreement.
"Collateral" shall have the meaning set forth in Article II.
"Collateral Access Agreement" means any landlord waiver or other
agreement, in form and substance reasonably satisfactory to the Agents, between
the Collateral Agent and any third party (including any bailee, consignee,
customs broker, or other similar Person) in possession of any Collateral or any
landlord of any Loan Party for any real property where any Collateral is
located, as such landlord waiver or other agreement may be amended, restated, or
otherwise modified from time to time.
"Collateral Deposit Account" shall have the meaning set forth in Section
7.1(a).
"Collection Account" shall have the meaning set forth in Section 7.1(b).
"Commercial Tort Claims" means all "commercial tort claims" as defined in
Article 9 of the UCC, including without limitation all commercial tort claims
listed on EXHIBIT J hereto (as such schedule may be amended and supplemented
from time to time).
"Control" shall have the meaning set forth in Article 8 or, if applicable,
in Section 9-104, 9-105, 9-106 or 9-107 of Article 9 of the UCC.
"Copyrights" means, with respect to any Person, all of such Person's
right, title, and interest in and to the following: (a) all U.S. copyrights,
rights and interests in copyrights, works protectable by copyright, copyright
registrations, and copyright applications; (b) all renewals of any of the
foregoing; (c) all income, royalties, damages, and payments now or hereafter due
and/or payable under any of the foregoing, including, without limitation,
damages or payments for past or future infringements for any of the foregoing;
(d) the right to sue for past, present, and future infringements of any of the
foregoing; and (e) all rights corresponding to any of the foregoing throughout
the world.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Deposit Account Control Agreement" means an agreement, in form and
substance reasonably satisfactory to the Collateral Agent, among any Grantor, a
banking institution holding such Grantor's funds, and the Collateral Agent with
respect to collection and control of all deposits and balances held in a deposit
account maintained by any Grantor with such banking institution.
"Deposit Accounts" shall have the meaning set forth in Article 9 of the
UCC.
"Documents" shall have the meaning set forth in Article 9 of the UCC.
"Equipment" shall have the meaning set forth in Article 9 of the UCC.
"Event of Default" means an event described in Section 5.1.
"Excluded Property" shall mean Special Property other than the following:
(a) the right to receive any payment of money (including, without
limitation, Accounts, General Intangibles and Payment Intangibles) or any
other rights referred to in Sections 9-406(f), 9-407(a) or 9-408(a) of the
UCC; and
(b) any Proceeds, substitutions or replacements of any Special
Property (unless such Proceeds, substitutions or replacements would
constitute Special Property).
"Exhibit" refers to a specific exhibit to this Security Agreement, unless
another document is specifically referenced.
"Fixtures" shall have the meaning set forth in Article 9 of the UCC.
"General Intangibles" shall have the meaning set forth in Article 9 of the
UCC.
"Goods" shall have the meaning set forth in Article 9 of the UCC.
"Instruments" shall have the meaning set forth in Article 9 of the UCC.
"Inventory" shall have the meaning set forth in Article 9 of the UCC.
"Investment Property" shall have the meaning set forth in Article 9 of the
UCC.
"Lenders" means the lenders party to the Credit Agreement and their
successors and assigns.
"Letter-of-Credit Rights" shall have the meaning set forth in Article 9 of
the UCC.
"Licenses" means, with respect to any Person, all of such Person's right,
title, and interest in and to (a) any and all licensing agreements or similar
arrangements in and to its Patents, Copyrights, or Trademarks, (b) all income,
royalties, damages, claims, and payments now or hereafter due or payable under
and with respect thereto, including, without limitation, damages and payments
for past and future breaches thereof, and (c) all rights to sue for past,
present, and future breaches thereof.
"Lock Boxes" shall have the meaning set forth in Section 7.1(a).
"Lock Box Agreements" shall have the meaning set forth in Section 7.1(a).
"Non-Pledged Foreign Interest" shall have the meaning ascribed to such
term in Article II.
"Patents" means, with respect to any Person, all of such Person's right,
title, and interest in and to: (a) any and all U.S. patents and patent
applications; (b) all inventions and improvements described and claimed therein;
(c) all reissues, divisions, continuations, renewals, extensions, and
continuations-in-part thereof; (d) all income, royalties, damages, claims, and
payments now or hereafter due or payable under and with respect thereto,
including, without limitation, damages and payments for past and future
infringements thereof; and (e) all rights to sue for past, present, and future
infringements thereof.
"Pledged Collateral" means all Instruments, Securities and other
Investment Property of the Grantors (other than Excluded Property and
Non-Pledged Foreign Interest), whether or not physically delivered to the
Collateral Agent pursuant to this Security Agreement.
"Pledged ULC Share Issuer" means Dura Automotive Canada ULC.
"Pledged ULC Shares" means any shares of capital stock of the Pledged ULC
Share Issuer being pledged hereunder.
"Receivables" means the Accounts, Chattel Paper, Documents, Investment
Property, Instruments and any other rights or claims to receive money which are
General Intangibles or which are otherwise included as Collateral.
"Section" means a numbered section of this Security Agreement, unless
another document is specifically referenced.
"Secured Parties" means the Agents, the Lenders, their respective
Affiliates, and each of their permitted successors and assigns.
"Security" has the meaning set forth in Article 8 of the UCC.
"Special Property" shall mean:
(a) any permit, lease or license, or the assets (owned by a Person
other than a Loan Party) relating thereto or covered thereby, held by any
Grantor that validly prohibits the creation by such Grantor of a security
interest therein or thereon;
(b) any permit, lease or license, or the assets (owned by a Person
other than a Loan Party) relating thereto or covered thereby, held by any
Grantor to the extent that any Requirement of Law applicable thereto
prohibits the creation of a security interest therein or thereon;
(c) Equipment owned by any Grantor on the date hereof or hereafter
acquired that is subject to a Lien securing purchase money Indebtedness
incurred in connection with the purchase of any Equipment or Capital Lease
Obligation permitted to be incurred pursuant to the provisions of the
Credit Agreement if the contract or other agreement in which such Lien is
granted (or the documentation providing for such purchase money
Indebtedness incurred in connection with the purchase of any Equipment or
Capital Lease Obligation) validly prohibits the creation of any other Lien
on such Equipment;
(d) Any intellectual property Collateral, including without
limitation, intent-to-use trademark applications, for which the creation
by a Grantor of a security interest therein is prohibited without the
consent of third party, by Requirement of Law, or would otherwise result
in the loss by any Loan Party of any material rights therein;
(e) Equity Interests in Dura Automotive Systems Capital Trust which,
pursuant to either Requirements of Law, the organizational documents
governing such trust or any other agreement binding upon such trust, do
not permit the assignment of any interest in such trust; and
(f) Equity Interests held by any Grantor in Shanghai Atwood Electric
Co., Ltd. which, pursuant to either Requirements of Law or the
organizational documents governing such joint venture, do not permit the
assignment of such Grantor's interests.
provided, however, that in each case described in clauses (a), (b), (c),
(d), (e) and (f) of this definition, such property shall constitute "Special
Property" only to the extent and for so long as such permit, lease, license,
contract or other agreement or Requirement of Law applicable thereto, validly
prohibits the creation of a Lien on such property in favor of the Collateral
Agent and, upon the termination of such prohibition (howsoever occurring), such
property shall cease to constitute "Special Property."
"Stock Rights" means all dividends, cash, instruments or other
distributions and any other right or property including any proceeds thereof
which the Grantors shall receive or shall become entitled to receive for any
reason whatsoever with respect to, in substitution for or in exchange for any
Equity Interest constituting
Collateral, any right to receive an Equity Interest and any right to receive
earnings, in which the Grantors now have or hereafter acquire any right, issued
by an issuer of such Equity Interest.
"Supporting Obligations" shall have the meaning set forth in Article 9 of
the UCC.
"Trademarks" means, with respect to any Person, all of such Person's
right, title, and interest in and to the following: (a) all U.S. trademarks
(including service marks), trade names, trade dress, and trade styles and the
registrations and applications for registration thereof and the goodwill of the
business symbolized by the foregoing; (b) all licenses of the foregoing, whether
as licensee or licensor; (c) all renewals of the foregoing; (d) all income,
royalties, damages, and payments now or hereafter due or payable with respect
thereto, including, without limitation, damages, claims, and payments for past
and future infringements thereof; (e) all rights to sue for past, present, and
future infringements of the foregoing, including the right to settle suits
involving claims and demands for royalties owing; and (f) all rights
corresponding to any of the foregoing throughout the world.
"UCC" means the Uniform Commercial Code, as in effect from time to time,
of the State of New York or of any other state the laws of which are required as
a result thereof to be applied in connection with the attachment, perfection or
priority of, or remedies with respect to, Collateral Agent's or any Secured
Party's Lien on any Collateral.
"ULC" means an unlimited company (also known as an "unlimited liability
company") existing under the laws of the province of Nova Scotia.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
GRANT OF SECURITY INTEREST
Each Grantor hereby pledges, assigns (other than with respect to the
Pledged ULC Shares) and grants to the Collateral Agent, on behalf of and for the
benefit of the Secured Parties, a security interest in all of its right, title
and interest in, to and under all personal property and other assets, whether
now owned by or owing to, or hereafter acquired by or arising in favor of such
Grantor (including under any trade name or derivations thereof), and whether
owned or consigned by or to, or leased from or to, such Grantor, and regardless
of where located (all of which will be collectively referred to as the
"Collateral"), including:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all Equipment;
(v) all Fixtures;
(vi) all General Intangibles, Patents, Trademarks and Copyrights
and all Licenses;
(vii) all Goods;
(viii) all Instruments;
(ix) all Equity Interests and other Securities;
(x) all Inventory;
(xi) all Investment Property;
(xii) all cash or cash equivalents;
(xiii) all letters of credit, Letter-of-Credit Rights and Supporting
Obligations;
(xiv) all Deposit Accounts with any bank or other financial
institution;
(xv) all Commercial Tort Claims listed on EXHIBIT J hereto;
(xvi) and all accessions to, substitutions for and replacements,
proceeds (including Stock Rights), insurance proceeds and
products of the foregoing, together with all books and
records, customer lists, credit files, computer files,
programs, printouts and other computer materials and records
related thereto and any General Intangibles at any time
evidencing or relating to any of the foregoing;
to secure the prompt and complete payment and performance of the Secured
Obligations (specifically including, without limitation, each Grantor's
obligations arising under Article X of the Credit Agreement). Notwithstanding
the foregoing, (i) the Collateral of the Canadian Borrower and the Canadian
Subsidiary Guarantors (and the pledges and security interests granted hereunder
by the Canadian Borrower and the Canadian Subsidiary Guarantors) shall secure
the prompt and complete payment and performance of the Secured Obligations
solely to the extent constituting Canadian Obligations and (ii) with respect to
each Grantor's pledge of the outstanding securities held by it of any first-tier
Foreign Subsidiary, such pledge to the Collateral Agent will be limited to 65%
of the outstanding voting securities of such Foreign Subsidiary (the remaining
35% of such voting securities is referred to herein as the "Non-Pledged Foreign
Interest").
Notwithstanding anything to the contrary contained in clauses (i) through
(xvi) above, the security interest created by this Agreement shall not extend
to, and the terms "Pledged Collateral" and "Collateral" shall not include, any
Excluded Property and any Non-Pledged Foreign Interest and (i) the Grantors
shall from time to time at the reasonable request of the Collateral Agent give
written notice to the Collateral Agent identifying in reasonable detail the
Special Property (and stating in such notice that such Special Property
constitutes "Excluded Property") and shall provide to the Collateral Agent such
other information regarding the Special Property as the Collateral Agent may
reasonably request and (ii) from and after the date hereof, no Grantor shall
permit to become effective in any document creating, governing or providing for
any permit, lease or license, a provision that would prohibit the creation of a
Lien on such permit, lease or license in favor of the Collateral Agent unless
such Grantor believes, in its reasonable judgment, that such prohibition is
usual and customary in transactions of such type.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Grantor represents and warrants that:
3.1 Title, Perfection and Priority. Each Grantor has good and valid rights
in or the power to pledge, collaterally assign, deliver, deposit, and transfer
the Collateral and title to the Collateral with respect to which it has
purported to grant a security interest hereunder, free and clear of all Liens
except for Permitted Liens, and has full power and authority to grant to the
Collateral Agent the security interest in such Collateral pursuant hereto. When
financing statements have been filed in the appropriate offices against the
applicable Grantors in the locations listed on EXHIBIT H, the Collateral Agent
will have a fully perfected first priority security interest in that Collateral
in which a security interest may be perfected by filing, subject only to
Permitted Liens.
3.2 Type and Jurisdiction of Organization, Organizational and
Identification Numbers. As of the date hereof, each Grantor's type of entity,
its state of organization, the organizational number issued to it by its state
of organization and its federal employer identification number are set forth on
EXHIBIT A (such Exhibit shall be displayed on a Grantor by Grantor basis).
3.3 Principal Location. As of the date hereof, each Grantor's mailing
address and the location of its place of business (if it has only one) or its
chief executive office (if it has more than one place of business) is disclosed
in EXHIBIT A, as applicable; the Grantors have no other places of business
except those set forth in EXHIBIT A.
3.4 Collateral Locations. As of the date hereof, all of Grantors'
locations where Collateral is located are listed on EXHIBIT A. All of said
locations are owned by the Grantors except for locations (i) which are leased by
the Grantors as lessee and designated in Part VII(b) of EXHIBIT A and (ii) at
which Inventory is held in a public warehouse or is otherwise held by a bailee
or on consignment as designated in Part VII(c) of EXHIBIT A.
3.5 Deposit Accounts. As of the date hereof, all of the Deposit Accounts
of each Grantor are listed on EXHIBIT B.
3.6 Exact Names. Each Grantor's name in which it has executed this
Security Agreement is the exact name as it appears in such Grantor's
organizational documents, as amended, as filed with such Grantor's jurisdiction
of organization. The Grantors have not, during the past year, been known by or
used any other corporate or fictitious name, or been a party to any merger or
consolidation, or been a party to any acquisition, other than as listed on
EXHIBIT A.
3.7 Letter-of-Credit Rights and Chattel Paper. As of the date hereof,
EXHIBIT C lists all Letter-of-Credit Rights and Chattel Paper of each of the
Grantors having an individual fair market value in an amount in excess of
$250,000. All action by each Grantor reasonably necessary to protect and perfect
the Collateral Agent's Lien on each item listed on EXHIBIT C (including the
delivery of all originals and the placement of a legend on all Chattel Paper as
required hereunder) has been duly taken. The Collateral Agent will have a fully
perfected first priority security interest in the Collateral listed on EXHIBIT
C, subject only to Permitted Liens.
3.8 Accounts and Chattel Paper.
(a) The names of the obligors, amounts owing, due dates and other
information with respect to the Accounts and Chattel Paper are and will be
correctly stated in all material respects in all records of each Grantor
relating thereto and in all invoices and Borrowing Base Certificates as of the
date of such Borrowing Base Certificates with respect thereto furnished to the
Collateral Agent by each Grantor in accordance with the terms of the Loan
Documents. As of the time when each Account or each item of Chattel Paper, in
each case constituting Collateral, arises, each Grantor shall be deemed to have
represented and warranted that such Account or Chattel Paper, as the case may
be, and all records of such Grantor relating thereto, are genuine and in all
material respects what they purport to be.
(b) With respect to Accounts scheduled or listed on the most recent
Borrowing Base Certificates as of the date of such Borrowing Base Certificates,
(i) all Accounts are Canadian Eligible Accounts or Eligible U.S. Accounts, as
applicable; (ii) all Accounts represent bona fide sales of Inventory or
rendering of services to Account Debtors in the ordinary course of each
Grantor's business and are not evidenced by a judgment, Instrument or Chattel
Paper; (iii) there are no setoffs, claims or disputes existing or asserted with
respect thereto and the Grantors have not made any agreement with any Account
Debtor for any extension of time for the payment thereof, any compromise or
settlement for less than the full amount thereof, any release of any Account
Debtor from liability therefor, or any deduction therefrom except a discount or
allowance allowed by a Grantor in the ordinary course of its business; (iv) to
the knowledge of any Financial Officer or other senior
officer of any Grantor, there are no facts, events or occurrences which in any
way impair the validity or enforceability thereof or could reasonably be
expected to reduce the amount payable thereunder as shown on each Grantor's
books and records and any invoices, statements and Borrowing Base Certificates
with respect thereto; (v) the Grantors have not received any notice of
proceedings or actions which are threatened or pending against any Account
Debtor which could reasonably be expected to result in any material adverse
change in such Account Debtor's financial condition; and (vi) the Grantors have
no knowledge that any Account Debtor is unable generally to pay its debts as
they become due.
3.9 Inventory. With respect to any Inventory scheduled or listed on the
most recent Borrowing Base Certificates as of the date of such Borrowing Base
Certificates, (a) such Inventory (other than Inventory in transit or out for
repairs) is located at one of the Grantor's locations set forth on EXHIBIT A, as
applicable, (b) no Inventory (other than Inventory in transit) is now, or shall
at any time or times hereafter be stored at any other location except as
permitted by Section 4.1(g), (c) the Grantors have good title to such Inventory
and such Inventory is not subject to any Lien or security interest or document
whatsoever except for the Lien granted to the Collateral Agent, for the benefit
of the Collateral Agent and Secured Parties, and except for Permitted Liens, (d)
except as specifically disclosed in the most recent Borrowing Base Certificate,
such Inventory is Eligible Inventory of good and merchantable quality, free from
any defects, (e) such Inventory is not subject to any licensing, patent,
royalty, trademark, trade name or copyright agreements with any third parties
which would require any consent of any third party upon sale or disposition of
that Inventory or, except royalties incurred pursuant to the sale of such
Inventory under the current license agreement, the payment of any monies to any
third party upon such sale or other disposition, (f) such Inventory has been
produced in accordance with the Federal Fair Labor Standards Act of 1938, as
amended, and all rules, regulations and orders thereunder and (g) the completion
of manufacture in accordance with the applicable purchase order specifications,
sale or other disposition of such Inventory by the Collateral Agent following an
Event of Default shall not require the consent of any Person and shall not
constitute a breach or default under any contract or agreement to which any
Grantor is a party or to which such property is subject.
3.10 Intellectual Property. As of the date hereof, the Grantors do not
have any interest in, or title to, any Patent, Trademark or Copyright materially
necessary for operation of the business, except as set forth in EXHIBIT D. This
Security Agreement is effective to create a valid and continuing Lien and, upon
filing of appropriate financing statements in the offices listed on EXHIBIT H
and this Security Agreement with the United States Copyright Office and the
United States Patent and Trademark Office, fully perfected first priority
security interests in favor of the Collateral Agent on each Grantor's Patents,
Trademarks and Copyrights, except as set forth on EXHIBIT D, subject to Section
4.7(c). Such perfected security interests are enforceable as such as against any
and all creditors of and purchasers from the Grantors; and all action necessary
to protect and perfect the Collateral Agent's Lien on each Grantor's Patents,
Trademarks or Copyrights shall have been duly taken.
3.11 Filing Requirements. As of the date hereof, none of the Equipment is
covered by any certificate of title, except for vehicles having an aggregate
fair market value greater than $500,000, described in Part I of EXHIBIT E. As of
the date hereof, none of the Collateral is of a type for which security
interests or liens may be perfected by filing under any federal statute except
for (a) the vehicles or aircrafts described in Part II of EXHIBIT E and (b)
Patents, Trademarks and Copyrights held by the Grantors and described in EXHIBIT
D. The legal description, county and street address of each property on which
any Fixtures are located is set forth in EXHIBIT F together with the name and
address of the record owner of each such property.
3.12 No Financing Statements, Security Agreements. No financing statement
or security agreement describing all or any portion of the Collateral which has
not lapsed or been terminated naming any of the Grantors as debtor has been
filed or is of record in any jurisdiction except (a) for financing statements or
security agreements naming the Collateral Agent on behalf of the Secured Parties
as the secured party and (b) as permitted in connection with Permitted Liens.
3.13 Pledged Collateral.
(a) As of the date hereof, EXHIBIT G sets forth a complete and
accurate list of all of the Pledged Collateral. Each Grantor is the direct, sole
beneficial owner and sole holder of record of the Pledged Collateral listed on
EXHIBIT G as being owned by it, free and clear of any Liens, except for
Permitted Liens. Each Grantor further represents and warrants that (i) all
Pledged Collateral constituting an Equity Interest has been (to the extent such
concepts are relevant with respect to such Pledged Collateral) duly authorized,
validly issued, are fully paid and (except in the case of Pledged ULC Shares)
non-assessable, (ii) with respect to any certificates delivered to the
Collateral Agent representing an Equity Interest, either such certificates are
Securities as defined in Article 8 of the UCC as a result of actions by the
issuer or otherwise, or, if such certificates are not Securities, the Grantors
have so informed the Collateral Agent so that the Collateral Agent may take
steps to perfect its security interest therein as a General Intangible, (iii)
all Pledged Collateral held by a securities intermediary is covered by a control
agreement among the applicable Grantor, the securities intermediary and the
Collateral Agent pursuant to which the Collateral Agent has Control and (iv) all
Pledged Collateral which represents Indebtedness having an individual fair
market value in excess of $1,000,000 owed to any Grantor has been duly
authorized, authenticated or issued and delivered by the issuer of such
Indebtedness, is the legal, valid and binding obligation of such issuer and, to
such Grantor's knowledge as of the date hereof, such issuer is not in default
thereunder.
(b) In addition, (i) none of the Pledged Collateral (constituting
Equity Interests of Parent's Subsidiaries) has been issued or transferred in
violation of the securities registration, securities disclosure or similar laws
of any jurisdiction to which such issuance or transfer may be subject, (ii)
there are existing no options, warrants, calls or commitments of any character
whatsoever relating to the Pledged Collateral (constituting Equity Interests of
Parent's Subsidiaries) or which obligate the issuer (that is a Subsidiary of
Parent) of any Equity Interest included in the Pledged Collateral to issue
additional Equity Interests, and (iii) no consent, approval, authorization, or
other action by, and no giving of notice, filing with, any governmental
authority or any other Person is required for the pledge by any Grantor of the
Pledged Collateral pursuant to this Security Agreement or for the execution,
delivery and performance of this Security Agreement by any Grantor, or for the
exercise by the Collateral Agent of the voting or other rights provided for in
this Security Agreement or for the remedies in respect of the Pledged Collateral
pursuant to this Security Agreement, except (i) as may be required in connection
with such disposition by laws affecting the offering and sale of securities
generally, (ii) consents, approvals, authorizations or other actions already
taken, (iii) with respect to the Pledged ULC Shares and (iv) that the (x)
limited partnership agreements governing the equity interests in Canadian
limited partnerships forming part of Pledged Collateral and/or (y) the articles
of association governing the Pledged ULC Shares may be subject to restrictions
on transfer to non-residents of Canada.
(c) Except as set forth in EXHIBIT G, the Grantors own 100% of the
issued and outstanding Equity Interests which constitute Pledged Collateral as
of the date hereof.
ARTICLE IV
COVENANTS
From the date of this Security Agreement, and thereafter until this
Security Agreement is terminated pursuant to Section 8.14 hereof, each Grantor
agrees that:
4.1 General.
(a) Collateral Records. Each Grantor will maintain books and records
with respect to the Collateral which are complete and accurate in all material
respects, and furnish to the Agents, with sufficient copies for each of the
Lenders, such reports relating to the Collateral as either Agent shall from time
to time reasonably request.
(b) Authorization to File Financing Statements; Ratification. Each
Grantor hereby authorizes either Agent to file, and if requested will deliver to
the Collateral Agent, all financing statements and other documents and take such
other actions as may from time to time be requested by the Collateral Agent in
order to maintain a first perfected security interest in and, if applicable,
Control of, the Collateral, except as otherwise provided hereunder. Any
financing statement filed by the Collateral Agent may be filed in any filing
office in any applicable UCC jurisdiction and may (i) indicate the Collateral
(1) as all assets of the Grantor or words of similar effect, regardless of
whether any particular asset comprised in the Collateral falls within the scope
of Article 9 of the UCC or such jurisdiction, or (2) by any other description
which reasonably approximates the description contained in this Security
Agreement, and (ii) contain any other information required by part 5 of Article
9 of the UCC for the sufficiency or filing office acceptance of any financing
statement or amendment, including (A) whether any Grantor is an organization,
the type of organization and any organization identification number issued to
any Grantor, and (B) in the case of a financing statement filed as a fixture
filing or indicating Collateral as as-extracted collateral or timber to be cut,
a sufficient description of real property to which the Collateral relates. Each
Grantor also agrees to furnish any such information to Agents promptly upon
request. Each Grantor also ratifies its authorization for the Collateral Agent
to have filed in any UCC jurisdiction any initial financing statements or
amendments thereto if filed prior to the date hereof.
(c) Further Assurances. Each Grantor will, if so reasonably
requested by an Agent, furnish to the Agents, as often as an Agent reasonably
requests, statements and schedules further identifying and describing the
Collateral and such other reports and information in connection with the
Collateral as such Agent may reasonably request, all in such reasonable detail
as such Agent may specify. Each Grantor also agrees to take any and all
commercially reasonable actions necessary to defend title to the Collateral
against all persons and to defend the security interest of the Collateral Agent
in the Collateral and the priority thereof against any Lien not expressly
permitted hereunder.
(d) Other Financing Statements. No Grantor will authorize the filing
of any financing statement naming it as debtor covering all or any portion of
the Collateral, except as permitted pursuant to the Credit Agreement. Each
Grantor acknowledges that it is not authorized to file any financing statement
or amendment or termination statement with respect to any financing statement
without the prior written consent of the Collateral Agent, subject to each
Grantor's rights under Section 9-509(d)(2) of the UCC.
(e) Locations. Subject to the following sentence, no Grantor will
(i) maintain any Collateral (other than Collateral in transit or out for
repairs) that has an aggregate fair market value in excess of $5,000,000 at any
location other than those locations listed on EXHIBIT A, (ii) otherwise change,
or add to, such locations, or (iii) change its principal place of business or
chief executive office from the location identified on EXHIBIT A. Such Grantor
will give the Agents at least (A) thirty (30) days prior written notice of any
change in such Grantor's chief place of business and (B) ten (10) Business Days
prior written notice of any new location of business or any new location for any
of its Collateral except for locations where the Collateral stored or warehoused
at all such new locations has an aggregate fair market value not exceeding
$5,000,000. With respect to any new location (i) where the Collateral stored or
warehoused at such location has an aggregate fair market value in excess of
$5,000,000 and (ii) which is located within the continental United States or
Canada, such Grantor will execute such documents and take such actions as the
Agents deem necessary to perfect and protect the Liens granted under the
Collateral Documents and will use commercially reasonable efforts to obtain a
Collateral Access Agreements for each such location.
4.2 Receivables.
(a) Certain Agreements on Receivables. Except as otherwise permitted
in the Credit Agreement, no Grantor will make or agree to make any discount,
credit, rebate or other reduction in the original amount owing on a Receivable
or accept in satisfaction of a Receivable less than the original amount thereof,
except that, prior to the occurrence and during the continuation of an Event of
Default, the Grantors may reduce the amount of Accounts arising from the sale of
Inventory in the ordinary course of business.
(b) Collection of Receivables. Except as otherwise permitted in this
Security Agreement, each Grantor will use commercially reasonable efforts to
collect and enforce, at such Grantor's sole expense, all amounts due or
hereafter due to any Grantor under the Receivables.
(c) Delivery of Invoices. Each Grantor will deliver to the
Collateral Agent promptly upon its request after the occurrence and during the
continuation of an Event of Default duplicate invoices with respect to each
Account bearing such language of assignment as the Agents shall specify.
(d) Disclosure of Counterclaims on Receivables. If (i) any discount,
credit or agreement to make a rebate or to otherwise reduce the amount owing on
a Receivable exists or (ii) if, to the knowledge of any Financial Officer or any
other senior office of any Grantor, any dispute, setoff, claim, counterclaim or
defense exists or has been asserted or threatened with respect to a Receivable,
such Grantor will disclose such fact to the Agents in the next Borrowing Base
Certificate delivered to the Agents.
(e) Electronic Chattel Paper. Each Grantor shall take all steps
necessary to grant the Collateral Agent Control of all electronic chattel paper
having an individual fair market value in an amount in excess of $500,000, in
accordance with the UCC and all "transferable records" as defined in each of the
Uniform Electronic Transactions Act and the Electronic Signatures in Global and
National Commerce Act.
4.3 Inventory and Equipment.
(a) Maintenance of Goods. Except as otherwise set forth in the
Credit Agreement, each Grantor will do all things necessary to maintain,
preserve, protect and keep the Inventory and the Equipment in good repair and
working and saleable condition, except for damaged or defective goods arising in
the ordinary course of any Grantor's business and except for ordinary wear and
tear, casualty and condemnation in respect of the Equipment.
(b) Inventory Count; Perpetual Inventory System. Subject to the
terms of the Credit Agreement, each Grantor will conduct a physical count or a
periodic cycle count of the Inventory at least once per Fiscal Year, and after
and during the continuation of an Event of Default, at such other times as the
Collateral Agent requests. The Grantors, at their own expense, shall deliver to
the Agents the results of each physical verification, which the Grantors have
made, or has caused any other Person to make on their behalf, of all or any
portion of their Inventory. The Grantors will maintain a perpetual inventory
reporting system at all times.
(c) Equipment. The Grantors shall not permit any Equipment to become
a fixture with respect to real property or to become an accession with respect
to other personal property with respect to which real or personal property the
Collateral Agent does not have a Lien.
(d) Titled Vehicles. Except with respect to vehicles having an
aggregate fair market value less than $500,000, the Grantors will deliver to the
Collateral Agent, upon reasonable request, the original of any vehicle title
certificate and provide and/or file all other documents or instruments necessary
to have the Lien of the Collateral Agent noted on any such certificate or with
the appropriate state office.
4.4 Delivery of Instruments, Securities, Chattel Paper and Documents. Each
Grantor will (a) deliver to the Collateral Agent promptly upon execution of this
Security Agreement the originals of all Chattel Paper having an individual fair
market value in excess of $250,000, Securities and Instruments constituting
Collateral (if any then exist), (b) hold in trust for the Collateral Agent upon
receipt and promptly thereafter deliver to the Collateral Agent any Chattel
Paper having an individual fair market value in excess of $250,000, Securities
and Instruments constituting Collateral from time to time acquired by any
Grantor, (c) upon either Agent's reasonable request, deliver to the Collateral
Agent (and thereafter hold in trust for the Collateral
Agent upon receipt and immediately deliver to the Collateral Agent) any
negotiable Document evidencing or constituting Collateral and (d) upon either
Agent's reasonable request, deliver to the Collateral Agent a duly executed
amendment to this Security Agreement, in the form of Exhibit I hereto (the
"Amendment"), pursuant to which such Grantor will pledge such additional
Collateral. All Pledged Shares shall be accompanied by duly executed instruments
of transfer or assignment in blank, all in form and substance reasonably
satisfactory to Collateral Agent. The Grantors hereby authorize the Collateral
Agent to attach each Amendment to this Security Agreement and agree that all
additional Collateral set forth in such Amendments shall be considered to be
part of the Collateral.
4.5 Uncertificated Pledged Collateral.
(a) Each Grantor will permit the Collateral Agent from time to time
to cause the appropriate issuers (and, if held with a securities intermediary,
such securities intermediary) of uncertificated securities or other types of
Pledged Collateral not represented by certificates to mark their books and
records with the numbers and face amounts of all such uncertificated securities
or other types of Pledged Collateral not represented by certificates and all
rollovers and replacements therefor to reflect the Lien of the Collateral Agent
granted pursuant to this Security Agreement. Each Grantor will take any actions
reasonably necessary to cause (a) the issuers of uncertificated securities which
are Pledged Collateral and (b) any securities intermediary which is the holder
of any Pledged Collateral, to cause the Collateral Agent to have and retain
Control over such Pledged Collateral. Without limiting the foregoing, each
Grantor will, with respect to Pledged Collateral held with a securities
intermediary, cause such securities intermediary to enter into a control
agreement with the Collateral Agent, in form and substance reasonably
satisfactory to the Agents, giving the Collateral Agent Control.
(b) Each Grantor hereby represents and warrants that the Equity
Interests in a partnership and/or limited liability company (i) are not dealt in
or traded on securities exchanges or in securities markets, (ii) are not
"investment company securities" (as defined in Section 8-103(b) of the Uniform
Commercial Code) and (iii) do not provide, in the related membership or
partnership agreement, certificates, if any, representing such Equity Interests
in a partnership and/or limited liability company or otherwise, that they are
securities governed by the Uniform Commercial Code of any jurisdiction.
(c) Each Grantor hereby covenants and agrees that, without the prior
express written consent of the Collateral Agent, it will not agree to any
election by any partnership or limited liability company to treat the Equity
Interests in a partnership and/or limited liability company as securities
governed by the Uniform Commercial Code of any jurisdiction and in any event
will promptly notify the Collateral Agent in writing if the representation set
forth in Section 4.5(b) hereof becomes untrue for any reason and, in such event,
take such action as the Collateral Agent may request in order to establish the
Collateral Agent's "control" (within the meaning of Section 8-106 of the Uniform
Commercial Code) over such Equity Interests in a partnership and/or limited
liability company.
4.6 Pledged Collateral.
(a) Changes in Capital Structure of Issuers. Except as permitted
under the Credit Agreement, no Grantor will (i) permit or suffer any issuer
(that is a Subsidiary of Parent) of an Equity Interest constituting Pledged
Collateral to dissolve, merge, liquidate, retire any of its Equity Interests or
other Instruments or Securities evidencing ownership, reduce its capital, sell
or encumber all or substantially all of its assets (except for Permitted Liens
and sales of assets permitted pursuant to Section 6.03 of the Credit Agreement)
or merge or consolidate with any other entity, or (ii) vote any Pledged
Collateral in favor of any of the foregoing. Each Grantor shall cause the issuer
(that is a Subsidiary of Parent) of any Equity Interests to make all necessary
amendments and modifications to such issuer's organizational documentation in
order to permit the Collateral Agent to exercise its remedies hereunder and
under the Credit Agreement (including, without limitation, in order to allow
such Collateral Agent and its permitted successors and assigns to become members
or partners, as applicable, of such issuer with the same voting and other rights
and benefits as the Grantor had with respect to such Grantor's Equity Interests
in such issuer).
(b) Issuance of Additional Securities. Except as permitted under the
Credit Agreement, no Grantor will permit or suffer the issuer of an Equity
Interest constituting Pledged Collateral to issue additional Equity Interests,
any right to receive the same or any right to receive earnings, except to the
Grantor. Any such issuances permitted under the Credit Agreement shall promptly
be pledged in accordance with the terms of this Security Agreement.
(c) Registration of Pledged Collateral. Upon the occurrence and
during the continuation of an Event of Default, the Grantors will permit any
registerable Pledged Collateral to be registered in the name of the Collateral
Agent or its nominee, provided that, in no case shall the Pledged ULC Shares be
registered in the name of the Collateral Agent other than upon 10 days' written
notice from the Administrative Agent to the Grantor, as applicable (which notice
has not been rescinded during such 10-day period).
(d) Exercise of Rights in Pledged Collateral.
(i) Without in any way limiting the foregoing and subject to
clause (ii) below, the Grantors shall have the right to exercise all voting
rights or other rights relating to the Pledged Collateral for all purposes not
inconsistent with this Security Agreement, the Credit Agreement or any other
Loan Document; provided however, that no vote or other right shall be exercised
or action taken which would have the effect of impairing the rights of the
Collateral Agent in respect of the Pledged Collateral.
(ii) Each Grantor will permit the Collateral Agent or its
nominee at any time after the occurrence and during the continuation of an Event
of Default, without notice, to exercise all voting rights or other rights
relating to Pledged Collateral (other than Pledged ULC Shares), including,
without limitation, exchange, subscription or any other rights, privileges, or
options pertaining to any Equity Interest or Investment Property constituting
Pledged Collateral (other than Pledged ULC Shares) as if it were the absolute
owner thereof.
(iii) Each Grantor shall be entitled to collect and receive
for its own use all cash dividends and interest paid in respect of the Pledged
Collateral (other than Pledged ULC Shares) to the extent not in violation of the
Credit Agreement and except as otherwise provided under the Credit Agreement and
the other Loan Documents.
4.7 Intellectual Property.
(a) The Grantors will use their commercially reasonable efforts to
secure all consents and approvals necessary or appropriate for the assignment to
or benefit of the Collateral Agent of any License held by any Grantor and to
enforce the security interests granted hereunder.
(b) Each Grantor shall notify the Agents immediately if it knows or
has reason to know that any application or registration relating to any material
Patent, Trademark or Copyright (now or hereafter existing) may become abandoned
or dedicated (except to the extent not prohibited pursuant to the Credit
Agreement), or of any material adverse determination or development (including
the institution of, or any such determination or development in, any proceeding
in the United States Patent and Trademark Office, the United States Copyright
Office or any court) regarding the Grantor's ownership of any material Patent,
Trademark or Copyright, its right to register the same, or to keep and maintain
the same.
(c) Each Grantor shall notify the Agents within ten Business Days of
the beginning of each fiscal quarter commencing with the fiscal quarter
beginning on or about July 1, 2005, if such Grantor, either directly or through
any agent, employee, licensee or designee, has filed an application for the
registration of any Patent, Trademark or Copyright with the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency during the preceding fiscal quarter, and, upon request of either
Agent, each Grantor shall execute and deliver any and all security agreements as
either Agent may request to evidence the Collateral Agent's first priority
security interest on such Patent, Trademark or Copyright, and the General
Intangibles of each Grantor relating thereto or represented thereby.
(d) Each Grantor, in its commercially reasonable business judgment,
shall take all actions reasonably necessary to maintain and pursue each
application, to obtain the relevant registration and to maintain the
registration of each of the Patents, Trademarks and Copyrights (now or hereafter
existing), including the filing of applications for renewal, affidavits of use,
affidavits of noncontestability and opposition and interference and cancellation
proceedings unless the applicable Grantor shall determine, in its commercially
reasonable business judgment, that such Patent, Trademark or Copyright is not
material to the conduct of such Grantor's business.
(e) Each Grantor shall, unless it shall reasonably determine that
such Patent, Trademark or Copyright is not material to the conduct of its
business or operations, promptly sue for infringement, misappropriation or
dilution and to recover any and all damages for such infringement,
misappropriation or dilution, and that such Grantor shall take such other
actions as the Agents shall deem reasonably appropriate under the circumstances
to protect such Patent, Trademark or Copyright. In the event that any Grantor
institutes suit because any of the Patents, Trademarks or Copyrights
constituting Collateral is infringed upon, or misappropriated or diluted by a
third party, the Grantor shall comply with Section 4.8.
4.8 Commercial Tort Claims. Each Grantor shall promptly, and in any event
within five (5) Business Days after a Financial Officer or other senior officer
becomes aware that the same is acquired by it, notify the Agents of any
commercial tort claim (as defined in the UCC) having an individual fair market
value in an amount in excess of $1,000,000, acquired by it and, unless the
Collateral Agent otherwise consents, the applicable Grantor shall enter into an
amendment to this Security Agreement, in the form of Exhibit I hereto, granting
to Collateral Agent a first priority security interest in such commercial tort
claim subject to Permitted Liens.
4.9 Letter-of-Credit Rights. If any Grantor is or becomes the beneficiary
of a letter of credit having an individual fair market value in an amount in
excess of $250,000, the applicable Grantor shall promptly, and in any event
within five (5) Business Days after becoming a beneficiary, notify the Agents
thereof and use commercially reasonable efforts to cause the issuer and/or
confirmation bank to (i) consent to the assignment of any Letter-of-Credit
Rights to the Collateral Agent and (ii) agree to direct all payments thereunder
to a Deposit Account at the Collateral Agent or subject to a Deposit Account
Control Agreement for application to the
Secured Obligations, in accordance with Section 2.19 of the Credit Agreement,
all in form and substance reasonably satisfactory to the Agents.
4.10 Federal, State or Municipal Claims. Each Grantor will promptly notify
the Agents of any Collateral which constitutes a claim against the United States
government or any state or local government or any instrumentality or agency
thereof having an individual fair market value in excess of $2,000,000, the
assignment of which claim is restricted by federal, state or municipal law.
4.11 No Interference. Each Grantor agrees that it will not interfere with
any right, power and remedy of the Collateral Agent provided for in this
Security Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by the
Collateral Agent of any one or more of such rights, powers or remedies, in each
case to the extent such rights, powers or remedies are exercised in accordance
with the Loan Documents.
4.12 Insurance. All insurance policies required under Section 5.09 of the
Credit Agreement shall name the Collateral Agent (for the benefit of the
Collateral Agent and the Secured Parties) as an additional insured or as loss
payee, as applicable, and shall contain loss payable clauses or mortgagee
clauses, through endorsements in form and substance reasonably satisfactory to
the Agents, which provide that: (i) subject to the terms of the Credit
Agreement, all proceeds thereunder with respect to any Collateral shall be
payable to the Collateral Agent; (ii) no such insurance shall be affected by any
act or neglect of the insured or owner of the property described in such policy;
and (iii) such policy and loss payable or mortgagee clauses may be canceled,
amended, or terminated only upon at least thirty days prior written notice given
to the Collateral Agent.
4.13 Collateral Access Agreements. Each Grantor shall use commercially
reasonable efforts to obtain a Collateral Access Agreement, from the lessor of
each leased property, mortgagee of owned property or bailee or consignee with
respect to any warehouse, processor or converter facility or other location
where the aggregate value of the Collateral stored or located exceeds
$5,000,000, which agreement or letter shall provide access rights, contain a
waiver or subordination of all Liens or claims that the landlord, mortgagee,
bailee or consignee may assert against the Collateral at that location, and
shall otherwise be reasonably satisfactory in form and substance to the Agents.
With respect to any locations or warehouse space leased as of the Closing Date
and thereafter, if the Collateral Agent has not received a Collateral Access
Agreement as of the Effective Date (or, if later, as of the date such location
is acquired or leased), the applicable Grantor's Eligible U.S. Inventory and
Canadian Eligible Inventory at that location shall be subject to such Reserves
as may be established by the Administrative Agent in its Permitted Discretion.
After the Closing Date, no real property or warehouse space shall be leased by
any Grantor and no Inventory shall be shipped to a processor or converter under
arrangements established after the Closing Date, unless and until either a
reasonably satisfactory Collateral Access Agreement shall first have been
obtained with respect to such location or Borrower's Eligible U.S. Inventory or
Canadian Eligible Inventory, as applicable, at that location shall be subject to
the establishment of Reserves acceptable to the Collateral Agent in its
Permitted Discretion.
4.14 [Intentionally Omitted].
4.15 Change of Name or Location; Change of Fiscal Year. Each Grantor
agrees that it shall not (a) change its name as it appears in official filings
in the state of its incorporation or organization, (b) change its chief
executive office, principal place of business, mailing address, corporate
offices or warehouses or locations at which Collateral is held or stored (other
than Collateral in transit or out for repairs), except as permitted under
Section 4.1(e), or the location of its records concerning the Collateral as set
forth in the Security Agreement, (c) change the type of entity that it is, (d)
change its organization identification number, if any, issued by its state of
incorporation or other organization, or (e) change its state of incorporation or
organization, in each case, unless the Agents shall have received at least
thirty (30) days prior written notice of such change and either (1) the
Administrative Agent shall have acknowledged in writing that such change will
not adversely affect the validity, perfection or priority of the Collateral
Agent's security interest in the Collateral, or (2) any reasonable action
requested by the Agents in connection therewith has been completed or taken or
shall be completed contemporaneously with such action (including any action to
continue the perfection of any Liens in favor of the Collateral Agent, on behalf
of Secured Parties, in any Collateral).
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default. The occurrence of any "Event of Default" as defined
in the Credit Agreement shall constitute an Event of Default hereunder.
5.2 Remedies.
(a) Upon the occurrence and during the continuation of an Event of
Default, the Collateral Agent may exercise any or all of the following rights
and remedies (i) in respect of any Collateral other than Pledged ULC Shares or
(ii) in respect of any Collateral constituting Pledge ULC Shares insofar as (x)
neither the existence nor the exercise of such right or remedy would result in
the Agent being deemed to be a "member" of the issuer of the Pledged ULC Shares
or (y) upon the exercise of such right or remedy and following notice as
provided for in Section 4.4, the Agent or its nominee becomes the registered
holder of Pledged ULC Shares:
(i) those rights and remedies provided in this Security
Agreement, the Credit Agreement, or any other Loan Document; PROVIDED THAT, this
Section 5.2(a) shall not be understood to limit any rights available to the
Agents prior to an Event of Default;
(ii) those rights and remedies available to a secured party
under the UCC (whether or not the UCC applies to the affected Collateral) or
under any other applicable law (including, without limitation, any law governing
the exercise of a bank's right of setoff (except with respect to trust assets
held in a trust account) or bankers' lien) when a debtor is in default under a
security agreement;
(iii) give notice of sole control or any other instruction
under any Deposit Account Control Agreement or any other control agreement with
any securities intermediary and take any action therein with respect to such
Collateral, provided, however, that in the event and at such time that such
Events of Default are waived, the Collateral Agent agrees to promptly inform any
relevant third party and withdraw such notice of sole control;
(iv) without notice (except as specifically provided in
Section 8.1 or elsewhere herein), demand or advertisement of any kind to any
Grantor or any other Person, enter the premises of any Grantor where any
Collateral is located (through self-help and without judicial process) to
collect, receive, assemble, process, appropriate, sell, lease, assign, grant an
option or options to purchase or otherwise dispose of, deliver, or realize upon,
the Collateral or any part thereof in one or more parcels at public or private
sale or sales (which sales may be adjourned or continued from time to time with
or without notice and may take place at the applicable Grantor's premises or
elsewhere), for cash, on credit or for future delivery without assumption of any
credit risk, and upon such other terms as the Collateral Agent may deem
commercially reasonable; and
(v) concurrently with written notice to any Grantor, transfer
and register in its name or in the name of its nominee the whole or any part of
the Pledged Collateral, to exchange certificates or instruments representing or
evidencing Pledged Collateral for certificates or instruments of smaller or
larger denominations, to exercise the voting and all other rights as a holder
with respect thereto, to collect and receive all cash dividends, interest,
principal and other distributions made thereon and to otherwise act with respect
to the Pledged Collateral as though the Collateral Agent was the outright owner
thereof.
(b) The Collateral Agent, on behalf of the Secured Parties, may
comply with any applicable state or federal law requirements in connection with
a disposition of the Collateral and compliance will not be considered to
adversely affect the commercial reasonableness of any sale of the Collateral.
(c) The Collateral Agent shall have the right upon any such public
sale or sales and, to the extent permitted by law, upon any such private sale or
sales, to purchase for the benefit of the Collateral Agent and the Secured
Parties, the whole or any part of the Collateral so sold, free of any right of
equity redemption, which equity redemption the Grantors hereby expressly
release.
(d) Until the Collateral Agent is able to effect a sale, lease, or
other disposition of Collateral, the Collateral Agent shall have the right to
hold or use Collateral, or any part thereof, to the extent that it deems
appropriate for the purpose of preserving Collateral or its value, while using
commercially reasonable care, or for any other purpose deemed appropriate by the
Collateral Agent. The Collateral Agent may, if it so elects, seek the
appointment of a receiver or keeper to take possession of Collateral and to
enforce any of the Collateral Agent's remedies (for the benefit of the
Collateral Agent and Secured Parties), with respect to such appointment without
prior notice or hearing as to such appointment.
(e) If, after the Credit Agreement has terminated by its terms and
all of the Secured Obligations have been paid in full, there remain Swap
Obligations outstanding, the Required Secured Parties may exercise the remedies
provided in this Section 5.2 upon the occurrence of any event which would allow
or require the termination or acceleration of any Swap Obligations pursuant to
the terms of the Swap Agreement.
(f) Notwithstanding the foregoing, neither the Collateral Agent nor
the Secured Parties shall be required to (i) make any demand upon, or pursue or
exhaust any of their rights or remedies against, any Grantor, any other obligor,
guarantor, pledgor or any other Person with respect to the payment of the
Secured Obligations or to pursue or exhaust any of their rights or remedies with
respect to any Collateral therefor or any direct or indirect guarantee thereof,
(ii) marshal the Collateral or any guarantee of the Secured Obligations or to
resort to the Collateral or any such guarantee in any particular order, or (iii)
effect a public sale of any Collateral.
(g) The Grantors recognize that the Collateral Agent may be unable
to effect a public sale of any or all the Pledged Collateral and may be
compelled to resort to one or more private sales thereof in accordance with
clause (a) above. The Grantors also acknowledge that any private sale may result
in prices and other terms less favorable to the seller than if such sale were a
public sale and, notwithstanding such circumstances, agree that any such private
sale shall not be deemed to have been made in a commercially unreasonable manner
solely by virtue of such sale being private. The Collateral Agent shall be under
no obligation to delay a sale of any of the Pledged Collateral for the period of
time necessary to permit any Grantor or the issuer of the Pledged Collateral to
register such securities for public sale under the Securities Act of 1933 (the
"Act"), as amended, or under applicable state securities laws, even if the
Grantor and the issuer would agree to do so. Without limiting the generality of
the foregoing the Collateral Agent, in its discretion, (x) may, in accordance
with applicable securities laws, proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering
such Pledged Collateral or part thereof could be or shall have been filed under
the Act (or similar statute), (y) may approach and negotiate with a single
purchaser to effect such sale, and (z) may restrict such sale to a purchaser who
is an accredited investor under the Act and who will represent and agree that
such purchaser is purchasing for its own account, for investment and not with a
view to the distribution or sale of such Pledged Collateral or any part thereof.
In addition to a private sale as provided above in this Section 5.2(g), if any
of the Pledged Collateral shall not be freely distributable to the public
without registration under the Act (or similar statute) at the time of any
proposed sale pursuant to this Section 5.2(g), then the Collateral Agent shall
not be required to effect such registration or cause the same to be effected
but, in Collateral Agent's discretion (subject only to applicable requirements
of law), may require that any sale hereunder (including a sale at auction) be
conducted subject to restrictions:
(i) as to the financial sophistication and ability of any
Person permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon any
certificates representing the Pledged Collateral sold in such sale, including
restrictions on future transfer thereof;
(iii) as to the representations required to be made by each
Person bidding or purchasing at such sale relating to that Person's access to
financial information about the entities comprising such Pledged Collateral and
such Person's intentions as to the holding of the Pledged Collateral so sold for
investment for its own account and not with a view to the distribution thereof;
and
(iv) as to such other matters as the Collateral Agent may, in
its discretion, deem necessary or appropriate in order that such sale
(notwithstanding any failure so to register) may be effected in compliance with
the Bankruptcy Code and other laws affecting the enforcement of creditors'
rights and the Act and all applicable state securities laws.
5.3 Grantors' Obligations Upon Default. Upon the request of the Collateral
Agent after the occurrence and during the continuation of an Event of Default,
each Grantor will:
(a) assemble and make available to the Collateral Agent the
Collateral and all books and records relating thereto at any place or places
specified by the Collateral Agent, whether at each Grantor's premises or
elsewhere;
(b) pursuant to Section 5.06 of the Credit Agreement, permit the
Collateral Agent, by the Collateral Agent's representatives and agents, to
enter, occupy and use any premises (during normal business hours) where all or
any part of the Collateral, or the books and records relating thereto, or both,
are located, to take possession of all or any part of the Collateral or the
books and records relating thereto, or both, to remove all or any part of the
Collateral or the books and records relating thereto, or both, and to conduct
sales of the Collateral, without any obligation to pay any Grantor for such use
and occupancy;
(c) take, or cause an issuer (that is a Subsidiary of Parent) of
Pledged Collateral to take, any and all actions necessary to register or qualify
the Pledged Collateral to enable the Collateral Agent to consummate a public
sale or other disposition of the Pledged Collateral; and
(d) at its own expense, cause the independent certified public
accountants then engaged by any Grantor or any other party reasonably acceptable
to Administrative Agent to prepare and deliver to the Collateral Agent and each
Secured Party, at any time, and from time to time, promptly upon the Collateral
Agent's request, the following reports with respect to any Grantor: (i) a
reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial
balances; and (iv) a test verification of such Accounts.
5.4 Grant of Intellectual Property License. For the sole purpose of
enabling the Collateral Agent to exercise the rights and remedies under this
Article V and only at such time as the Collateral Agent shall be lawfully
entitled to exercise such rights and remedies, each Grantor hereby (a) grants to
the Collateral Agent, for the benefit of the Collateral Agent and the Secured
Parties, an irrevocable, nonexclusive license (exercisable without payment of
royalty or other compensation to any of the Grantors) to use, license or
sublicense any intellectual property rights now owned or hereafter acquired by
any of the Grantors, and wherever the same may be located, and including in such
license access to all media in which any of the licensed items may be recorded
or stored and to all computer software and programs used for the compilation or
printout thereof and (b) irrevocably agrees that the Collateral Agent may sell
any of the Inventory of any Grantor directly to any person, including without
limitation persons who have previously purchased the Grantors' Inventory from
the Grantors and in connection with any such sale or other enforcement of the
Collateral Agent's rights under this Security
Agreement, may sell Inventory which bears any Trademark owned by or licensed to
any of the Grantors and any Inventory that is covered by any Copyright owned by
or licensed to any of the Grantors and the Collateral Agent may finish any work
in process and affix any Trademark owned by or licensed to any of the Grantors
and sell such Inventory as provided herein.
ARTICLE VI
ACCOUNT VERIFICATION; ATTORNEY IN FACT; PROXY
6.1 Account Verification. Upon the occurrence and during the continuation
of an Event of Default, either Agent may at any time, in such Agent's own name,
in the name of a nominee of such Agent, or in the name of any Grantor
communicate (by mail, telephone, facsimile or otherwise) with the Account
Debtors of the Grantors, parties to contracts with the Grantors and obligors in
respect of Instruments of the Grantors to verify with such Persons, to such
Agent's reasonable satisfaction, the existence, amount, terms of, and any other
matter relating to, Accounts, Instruments, Chattel Paper, payment intangibles
and/or other Receivables.
6.2 Authorization for Secured Party to Take Certain Action.
(a) Each Grantor irrevocably authorizes the Collateral Agent at any
time and from time to time in the sole discretion of the Collateral Agent and
appoints the Collateral Agent as its attorney in fact (i) to execute on behalf
of the Grantor as debtor and to file financing statements necessary in the
Collateral Agent's sole discretion to perfect and to maintain the perfection and
priority of the Collateral Agent's security interest in the Collateral, (ii)
following the occurrence and during the continuation of an Event of Default, to
endorse and collect any cash proceeds of the Collateral, (iii) to file a carbon,
photographic or other reproduction of this Security Agreement or any financing
statement with respect to the Collateral as a financing statement and to file
any other financing statement or amendment of a financing statement (which does
not add new collateral or add a debtor) in such offices as the Collateral Agent
in its sole discretion deems necessary to perfect and to maintain the perfection
and priority of the Collateral Agent's security interest in the Collateral, (iv)
to contact and enter into one or more agreements with the issuers of
uncertificated securities which are Pledged Collateral or with securities
intermediaries holding Pledged Collateral as may be necessary to give the
Collateral Agent Control over such Pledged Collateral (other than Excluded
Property); provided that Collateral Agent agrees to consult with the applicable
Grantor prior to contacting such issuer if (a) no Event of Default has occurred
and is continuing and (b) such issuer is not a Subsidiary of Parent, (v) to
apply the proceeds of any Collateral received by the Collateral Agent to the
Secured Obligations as provided in Section 7.3, (vi) following the occurrence
and during the continuation of an Event of Default and as otherwise permitted
under the Credit Agreement, to discharge past due taxes, assessments, charges,
fees or Liens on the Collateral (except for such Liens as are specifically
permitted hereunder), (vii) following the occurrence and during the continuation
of an Event of Default, to contact Account Debtors for any reason, (viii)
following the occurrence and during the continuation of an Event of Default, to
demand payment or enforce payment of the Receivables in the name of the
Collateral Agent or the Grantor, (ix) to endorse any and all checks, drafts, and
other instruments for the payment of money relating to the Receivables, (x)
following the occurrence and during the continuation of an Event of Default, to
sign the Grantor's name on any invoice or bill of lading relating to the
Receivables, drafts against any Account Debtor of the Grantor, assignments and
verifications of Receivables, (xi) following the occurrence and during the
continuation of an Event of Default, to exercise all of the Grantor's rights and
remedies with respect to the collection of the Receivables and any other
Collateral, (xii) following the occurrence and during the continuation of an
Event of Default, to settle, adjust, compromise, extend or renew the
Receivables, (xiii) following the occurrence and during the continuation of an
Event of Default, to settle, adjust or compromise any legal proceedings brought
to collect Receivables, (xiv) following the occurrence and during the
continuation of an Event of Default, to prepare, file and sign the Grantor's
name on a proof of claim in bankruptcy or similar document against any Account
Debtor of the Grantor, (xv) following the occurrence and during the continuation
of an Event of Default, to prepare, file and sign the Grantor's name on any
notice of Lien, assignment or satisfaction of Lien or similar document in
connection with the Receivables, (xvi) following the occurrence and during the
continuation of an Event of Default, to change the address for delivery of mail
addressed to the
Grantor to such address as the Collateral Agent may designate and to receive,
open and dispose of all mail addressed to the Grantor, and (xvii) after the
occurrence and during the continuation of an Event of Default in the Collateral
Agent's discretion, to do all other acts and execute any instruments consistent
with or necessary to carry out this Security Agreement or any other Loan
Document; and the Grantor agrees to reimburse the Collateral Agent within ten
(10) Business Days on demand for any reasonable payment made or any expense
incurred by the Collateral Agent in connection with any of the foregoing;
provided that, this authorization shall not relieve any Grantor of any of its
obligations under this Security Agreement or under the Credit Agreement.
(b) All acts of said attorney or designee in accordance with the
terms hereof are hereby ratified and approved. The powers conferred on the
Collateral Agent, for the benefit of the Collateral Agent and Secured Parties,
under this Section 6.2 are solely to protect the Collateral Agent's interests in
the Collateral and shall not impose any duty upon the Collateral Agent or any
Secured Party to exercise any such powers.
6.3 PROXY. THE GRANTORS HEREBY IRREVOCABLY CONSTITUTE AND APPOINT THE
COLLATERAL AGENT AS THE PROXY AND ATTORNEY-IN-FACT (AS SET FORTH IN SECTION 6.2
ABOVE) OF THE GRANTORS WITH RESPECT TO THE PLEDGED COLLATERAL (IMMEDIATELY
EFFECTIVE FOLLOWING THE OCCURRENCE OF AN EVENT OF DEFAULT), INCLUDING THE RIGHT
TO VOTE SUCH PLEDGED COLLATERAL, WITH FULL POWER OF SUBSTITUTION TO DO SO. IN
ADDITION TO THE RIGHT TO VOTE ANY SUCH PLEDGED COLLATERAL, THE APPOINTMENT OF
THE COLLATERAL AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL INCLUDE THE RIGHT TO
EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF
SUCH PLEDGED COLLATERAL WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING
WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND
VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND
WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY SUCH PLEDGED
COLLATERAL ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING
THE ISSUER OF SUCH PLEDGED COLLATERAL OR ANY OFFICER OR THE COLLATERAL AGENT
THEREOF), UPON THE OCCURRENCE AND DURING THE CONTINUATION OF AN EVENT OF
DEFAULT.
6.4 NATURE OF APPOINTMENT; LIMITATION OF DUTY. THE APPOINTMENT OF THE
COLLATERAL AGENT AS PROXY AND ATTORNEY-IN-FACT IN THIS ARTICLE VI IS COUPLED
WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE DATE ON WHICH THIS SECURITY
AGREEMENT IS TERMINATED IN ACCORDANCE WITH SECTION 8.14. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN, NEITHER THE COLLATERAL AGENT, NOR ANY SECURED PARTY,
NOR ANY OF THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS
OR REPRESENTATIVES SHALL HAVE ANY DUTY TO EXERCISE ANY RIGHT OR POWER GRANTED
HEREUNDER OR OTHERWISE OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY
FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO, EXCEPT IN RESPECT OF DAMAGES
ATTRIBUTABLE TO THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED THAT,
IN NO EVENT SHALL THEY BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR
CONSEQUENTIAL DAMAGES.
ARTICLE VII
COLLECTION AND APPLICATION OF COLLATERAL PROCEEDS;
DEPOSIT ACCOUNTS
7.1 Collection of Receivables.
(a) On or before the Closing Date, each Grantor shall (a) execute
and deliver to the Collateral Agent Deposit Account Control Agreements for each
Deposit Account maintained by the Grantors into which all cash, checks or other
similar payments relating to or constituting payments made in respect of
Receivables will be deposited (a "Collateral Deposit Account"), which Collateral
Deposit Accounts are identified as such on Exhibit B, and (b) establish lock box
service (the "Lock Boxes") with the bank(s) set forth in Exhibit B, which lock
boxes shall be subject to irrevocable lockbox agreements in the form provided by
or otherwise reasonably acceptable to the Agents and shall be accompanied by an
acknowledgment by the bank where the Lock Box is located of the Lien of the
Collateral Agent granted hereunder and of irrevocable instructions to wire all
amounts collected therein to the Collection Account (a "Lock Box Agreement").
After the Closing Date, the Grantors will comply with the terms of Section 7.2.
(b) Each Grantor shall direct all of its Account Debtors to forward
payments directly to Lock Boxes subject to Lock Box Agreements. The Lock Box
Agreement shall require all deposits to be swept daily to a Collateral Deposit
Account and shall require Collateral Agent's consent to any modification to such
Lock Box Agreements. Following the occurrence and during the continuation of an
Event of Default or at any time after the Cash Availability Trigger is less than
$50,000,000 for any ten (10) consecutive Business Days (each such event, a
"Triggering Event"), Collateral Agent shall be permitted to deliver a notice to
the depository bank directing them to take all future instructions from
Collateral Agent and not the applicable Grantor; provided that, following the
waiver of such Event of Default or following the Cash Availability Trigger being
greater than $75,000,000 for a period of sixty (60) consecutive days, as
applicable, Collateral Agent shall promptly provide notice to such depository
bank that it can resume following instructions from the applicable Grantor. If
notwithstanding the foregoing instructions, any Grantor receives any proceeds of
any Receivables, the Grantor shall receive such payments as the Collateral
Agent's trustee, and shall immediately deposit all cash, checks or other similar
payments related to or constituting payments made in respect of Receivables
received by it to a Collateral Deposit Account. The Collateral Agent shall hold
and apply funds received following a Triggering Event from a Collateral Deposit
Account as provided by the terms of Section 7.3.
7.2 Covenant Regarding New Deposit Accounts; Lock Boxes. Before opening or
replacing any Collateral Deposit Account, other Deposit Account (other than
trust accounts containing trust assets, payroll accounts or petty cash accounts
to the extent the aggregate of deposits in all petty cash accounts do not exceed
$125,000), or establishing a new Lock Box, the Grantors shall (a) provide notice
to the Agents and (b) cause each bank or financial institution in which it seeks
to open (i) such Deposit Account, to enter into a Deposit Account Control
Agreement with the Collateral Agent in order to give the Collateral Agent
Control of such Deposit Account, or (ii) a Lock Box, to enter into a Lock Box
Agreement with the Collateral Agent in order to give the Collateral Agent
Control of the Lock Box. In the case of Deposit Accounts or Lock Boxes
maintained with Secured Parties, the terms of such letter shall be subject to
the provisions of the Credit Agreement regarding setoffs.
7.3 Application of Proceeds; Deficiency. All amounts deposited in the
Collection Account shall be deemed received by the Collateral Agent in
accordance with Section 2.19 of the Credit Agreement and shall, after having
been credited in immediately available funds to the Collection Account, be
applied (and allocated) by Collateral Agent in accordance with Section 2.11(b)
of the Credit Agreement; provided that, so long as no Triggering Event has
occurred and is continuing, collections which are received into the Collection
Account shall be deposited into the Borrowers' Funding Account (as defined in
the Credit Agreement) rather than being used to reduce amounts owing under the
Credit Agreement. Any such proceeds of the Collateral shall be applied in the
order set forth in Section 2.19 of the Credit Agreement unless a court of
competent jurisdiction shall otherwise direct. The balance, if any, after all of
the Secured Obligations have been satisfied, shall be deposited by the
Collateral Agent into the Borrowers' general operating account with the
Collateral Agent. The Grantors shall remain liable for any deficiency if the
proceeds of any sale or disposition of the Collateral are insufficient to pay
all Secured Obligations, including any reasonable attorneys' fees and other
out-of-pocket expenses incurred by Collateral Agent or any Secured Party to
collect such deficiency.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Waivers. To the extent permitted by applicable law. the Grantors
hereby waive notice of the time and place of any public sale or the time after
which any private sale or other disposition of all or any part of the Collateral
may be made. To the extent such notice may not be waived under applicable law,
any notice made shall be deemed reasonable if sent to the applicable Grantor,
addressed as set forth in Article IX, at least ten days prior to (i) the date of
any such public sale or (ii) the time after which any such private sale or other
disposition may be made. To the maximum extent permitted by applicable law, the
Grantors waive all claims, damages, and demands against the Collateral Agent or
any Secured Party arising out of the repossession, retention or sale of the
Collateral, except such as arise solely out of the gross negligence or willful
misconduct of the Collateral Agent or such Secured Party. To the extent it may
lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes
the benefit and advantage of, and covenants not to assert against the Collateral
Agent or any Secured Party, any valuation, stay, appraisal, extension,
moratorium, redemption or similar laws and any and all rights or defenses it may
have as a surety now or hereafter existing which, but for this provision, might
be applicable to the sale of any Collateral made under the judgment, order or
decree of any court, or privately under the power of sale conferred by this
Security Agreement, or otherwise. Except as otherwise specifically provided
herein, the Grantors hereby waive presentment, demand, protest or any notice (to
the maximum extent permitted by applicable law) of any kind in connection with
this Security Agreement or any Collateral.
8.2 Limitation on Collateral Agent's and Secured Parties' Duty with
Respect to the Collateral. Except as required by applicable law, the Collateral
Agent shall have no obligation to clean-up or otherwise prepare the Collateral
for sale. The Collateral Agent and each Secured Party shall use reasonable care
with respect to the Collateral in its possession or under its control. Neither
the Collateral Agent nor any Secured Party shall have any other duty as to any
Collateral in its possession or control or in the possession or control of any
agent or nominee of the Collateral Agent or such Secured Party or any income
thereon or as to the preservation of rights against prior parties or any other
rights pertaining thereto. To the extent that applicable law imposes duties on
the Collateral Agent to exercise remedies in a commercially reasonable manner,
the Grantors acknowledge and agree that it is commercially reasonable for the
Collateral Agent (i) to fail to incur expenses deemed significant by the
Collateral Agent to prepare Collateral for disposition or otherwise to transform
raw material or work in process into finished goods or other finished products
for disposition, (ii) to fail to obtain third party consents for access to
Collateral to be disposed of, or to obtain or, if not required by other law, to
fail to obtain governmental or third party consents for the collection or
disposition of Collateral to be collected or disposed of, (iii) to fail to
exercise collection remedies against Account Debtors or other Persons obligated
on Collateral or to remove Liens on or any adverse claims against Collateral,
(iv) to exercise collection remedies against Account Debtors and other Persons
obligated on Collateral directly or through the use of collection agencies and
other collection specialists, (v) to advertise dispositions of Collateral
through publications or media of general circulation, whether or not the
Collateral is of a specialized nature, (vi) to contact other Persons, whether or
not in the same business as any of the Grantors, for expressions of interest in
acquiring all or any portion of such Collateral, (vii) to hire one or more
professional auctioneers to assist in the disposition of Collateral, whether or
not the Collateral is of a specialized nature, (viii) to dispose of Collateral
by utilizing internet sites that provide for the auction of assets of the types
included in the Collateral or that have the reasonable capacity of doing so, or
that match buyers and sellers of assets, (ix) to dispose of assets in wholesale
rather than retail markets, (x) to disclaim disposition warranties, such as
title, possession or quiet enjoyment, (xi) to purchase insurance or credit
enhancements to insure the Collateral Agent against risks of loss, collection or
disposition of Collateral or to provide to the Collateral Agent a guaranteed
return from the collection or disposition of Collateral, or (xii) to the extent
deemed appropriate by the Collateral Agent, to obtain the services of other
brokers, investment bankers, consultants and other professionals to assist the
Collateral Agent in the collection or disposition of any of the Collateral. The
Grantors acknowledge that the purpose of this Section 8.2 is to provide
non-exhaustive indications of what actions or omissions by the Collateral Agent
would be commercially reasonable in the Collateral Agent's exercise of remedies
against the
Collateral and that other actions or omissions by the Collateral Agent shall not
be deemed commercially unreasonable solely on account of not being indicated in
this Section 8.2. Without limitation upon the foregoing, nothing contained in
this Section 8.2 shall be construed to grant any rights to the Grantors or to
impose any duties on the Collateral Agent that would not have been granted or
imposed by this Security Agreement or by applicable law in the absence of this
Section 8.2.
8.3 Compromises and Collection of Collateral. The Grantors and the
Collateral Agent recognize that setoffs, counterclaims, defenses and other
claims may be asserted by obligors with respect to certain of the Receivables,
that certain of the Receivables may be or become uncollectible in whole or in
part and that the expense and probability of success in litigating a disputed
Receivable may exceed the amount that reasonably may be expected to be recovered
with respect to a Receivable. In view of the foregoing, the Grantors agree that
the Collateral Agent may at any time and from time to time, if an Event of
Default has occurred and is continuing, compromise with the obligor on any
Receivable, accept in full payment of any Receivable such amount as the
Collateral Agent in its sole discretion shall determine or abandon any
Receivable, and any such action by the Collateral Agent shall be commercially
reasonable so long as the Collateral Agent acts in good faith based on
information known to it at the time it takes any such action.
8.4 Secured Party Performance of Debtor Obligations. Without having any
obligation to do so, either Agent may perform or pay any obligation which any
Grantor agreed to perform or pay in this Security Agreement to the extent
Grantors fail to do so and the Grantors shall reimburse such Agent for any
amounts paid by such Agent pursuant to this Section 8.4. The Grantors'
obligation to reimburse the Collateral Agent pursuant to the preceding sentence
shall be a Secured Obligation payable promptly and in any event within ten (10)
days after written demand therefor.
8.5 Specific Performance of Certain Covenants. Each Grantor acknowledges
and agrees that a breach of any of the covenants contained in Sections 4.4, 4.5,
4.6, 4.7, 4.8, 4.9, 4.10, 4.12, 4.13, 4.14, 4.15, 4.16, 5.3, or 8.7 or in
Article VII will cause irreparable injury to the Collateral Agent and the
Secured Parties, that the Collateral Agent and Secured Parties have no adequate
remedy at law in respect of such breaches and therefore agrees, without limiting
the right of the Collateral Agent or the Secured Parties to seek and obtain
specific performance of other obligations of the Grantors contained in this
Security Agreement, that the covenants of the Grantors contained in the Sections
referred to in this Section 8.5 shall be specifically enforceable against the
Grantors.
8.6 Dispositions Not Authorized. No Grantor is authorized to sell or
otherwise dispose of the Collateral except as set forth in Section 6.03 of the
Credit Agreement and notwithstanding any course of dealing between any Grantor
and the Collateral Agent or other conduct of the Collateral Agent, no
authorization to sell or otherwise dispose of the Collateral (except as set
forth in Section 6.03 of the Credit Agreement) shall be binding upon the
Collateral Agent or the Secured Parties unless such authorization is in writing
signed by the Collateral Agent with the consent or at the direction of the
Required Secured Parties.
8.7 No Waiver; Amendments; Cumulative Remedies. No delay or omission of
the Collateral Agent or any Secured Party to exercise any right or remedy
granted under this Security Agreement shall impair such right or remedy or be
construed to be a waiver of any Default or an acquiescence therein, and any
single or partial exercise of any such right or remedy shall not preclude any
other or further exercise thereof or the exercise of any other right or remedy.
No waiver, amendment or other variation of the terms, conditions or provisions
of this Security Agreement whatsoever shall be valid unless in writing signed by
the Collateral Agent with the concurrence or at the direction of the Secured
Parties required under Section 9.02 of the Credit Agreement and then only to the
extent in such writing specifically set forth. All rights and remedies contained
in this Security Agreement or by law afforded shall be cumulative and all shall
be available to the Collateral Agent and the Secured Parties until the Secured
Obligations have been paid in full, no Letters of Credit are outstanding and no
commitments of the Collateral Agent or the Lenders which would give rise to any
Secured Obligations are outstanding.
8.8 Limitation by Law; Severability of Provisions. All rights, remedies
and powers provided in this Security Agreement may be exercised only to the
extent that the exercise thereof does not violate any applicable provision of
law, and all the provisions of this Security Agreement are intended to be
subject to all applicable mandatory provisions of law that may be controlling
and to be limited to the extent necessary so that they shall not render this
Security Agreement invalid, unenforceable or not entitled to be recorded or
registered, in whole or in part. Any provision in any this Security Agreement
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of this Security Agreement are
declared to be severable.
8.9 Reinstatement. This Security Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
any Grantor for liquidation or reorganization, should any Grantor become
insolvent or make an assignment for the benefit of any creditor or creditors or
should a receiver or trustee be appointed for all or any significant part of any
Grantor's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Secured Obligations,
or any part thereof, is, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee of the Secured
Obligations, whether as a "voidable preference," "fraudulent conveyance," or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Secured Obligations shall be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
8.10 Benefit of Agreement. The terms and provisions of this Security
Agreement shall be binding upon and inure to the benefit of the Grantors, the
Collateral Agent and the Secured Parties and their respective successors and
permitted assigns (including all persons who become bound as a debtor to this
Security Agreement), except that the Grantors shall not have the right to assign
their rights or delegate their obligations under this Security Agreement or any
interest herein, without the prior written consent of the Collateral Agent. No
sales of participations, assignments, transfers, or other dispositions of any
agreement governing the Secured Obligations or any portion thereof or interest
therein shall in any manner impair the Lien granted to the Collateral Agent, for
the benefit of the Collateral Agent and the Secured Parties, hereunder.
8.11 Survival of Representations. All representations and warranties of
the Grantors contained in this Security Agreement shall survive the execution
and delivery of this Security Agreement.
8.12 Taxes and Expenses. Subject to the terms of the Credit Agreement, any
taxes (including income taxes) payable or ruled payable by Federal or State
authority in respect of this Security Agreement shall be paid by the Grantors,
together with interest and penalties, if any. Subject to Section 9.03 of the
Credit Agreement, the Grantors shall reimburse the Collateral Agent for any and
all reasonable out-of-pocket expenses and charges (including reasonable
attorneys', auditors' and accountants' fees) paid or incurred by the Collateral
Agent in connection with the preparation, execution, delivery, administration,
collection and enforcement of this Security Agreement and in the audit,
analysis, administration, collection, preservation or sale of the Collateral
(including the expenses and charges associated with any periodic or special
audit of the Collateral undertaken in accordance with the terms of the Loan
Documents). Subject to Section 9.03 of the Credit Agreement, any and all costs
and expenses incurred by the Grantors in the performance of actions required
pursuant to the terms hereof shall be borne solely by the Grantors.
8.13 Headings. The title of and section headings in this Security
Agreement are for convenience of reference only, and shall not govern the
interpretation of any of the terms and provisions of this Security Agreement.
8.14 Termination and Release.
(a) This Security Agreement shall continue in effect
(notwithstanding the fact that from time to time there may be no Secured
Obligations outstanding) until (i) the Credit Agreement has terminated pursuant
to its express terms and (ii) all of the Secured Obligations other than
Unliquidated Obligations for which a claim has not yet been asserted, have been
paid and performed in full (or with respect to any outstanding Letters of
Credit, a cash deposit or Supporting Letter of Credit has been delivered to the
Collateral Agent as required by the Credit Agreement) and no commitments of the
Collateral Agent or the Lenders which would give rise to any Secured Obligations
are outstanding.
(b) The Pledged Collateral shall be released from the Lien of this
Agreement if such Pledged Collateral is disposed of in a disposition permitted
pursuant to the Credit Agreement. Upon termination hereof or any release of
Pledged Collateral in accordance with the provisions of the Credit Agreement,
the Collateral Agent shall, upon the request and at the sole cost and expense of
the Grantors, assign, transfer and deliver to Grantor, against receipt and
without recourse to or warranty by the Collateral Agent except as to the fact
that the Collateral Agent has not encumbered the released assets, such of the
Pledged Collateral to be released (in the case of a release) as may be in
possession of the Collateral Agent and as shall not have been sold or otherwise
applied pursuant to the terms hereof, and, with respect to any other Pledged
Collateral, proper documents and instruments (including UCC-3 termination
statements or releases) acknowledging the termination hereof or the release of
such Pledged Collateral, as the case may be.
8.15 Entire Agreement. Except as covered by the Canadian Security
Agreement, this Security Agreement embodies the entire agreement and
understanding between the Grantors and the Collateral Agent relating to the
Collateral and supersedes all prior agreements and understandings between any
Grantor and the Collateral Agent relating to the Collateral. To the extent the
provisions of this Security Agreement are inconsistent with the provisions of
the Canadian Security Agreement, the provisions of this Security Agreement shall
govern solely in connection with the security interests granted by the Canadian
Borrower or a Canadian Subsidiary with respect to such Canadian Borrower's or
Canadian Subsidiaries' assets located in the United States, if any.
8.16 CHOICE OF LAW. THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS)
OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.
8.17 CONSENT TO JURISDICTION. THE GRANTORS HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR NEW YORK STATE COURT
SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT AND EACH PARTY
HERETO HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION THEY MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE COLLATERAL AGENT
OR ANY SECURED PARTY TO BRING PROCEEDINGS AGAINST ANY GRANTOR IN THE COURTS OF
ANY OTHER JURISDICTION.
8.18 WAIVER OF JURY TRIAL. THE GRANTORS, THE COLLATERAL AGENT AND EACH
SECURED PARTY HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
8.19 Indemnity. The Grantors hereby agree to indemnify the Collateral
Agent and the Secured Parties, and their respective successors, permitted
assigns, agents and employees, from and against any and all liabilities,
damages, penalties, suits, costs, and expenses of any kind and nature
(including, without limitation, all reasonable expenses of litigation or
preparation therefor whether or not the Collateral Agent or any Secured Party is
a party thereto) imposed on, incurred by or asserted against the Collateral
Agent or the Secured Parties, or their respective successors, assigns, agents
and employees, in any way relating to or arising out of this Security Agreement,
or the manufacture, purchase, acceptance, rejection, ownership, delivery, lease,
possession, use, operation, condition, sale, return or other disposition of any
Collateral (including, without limitation, latent and other defects, whether or
not discoverable by the Collateral Agent or the Secured Parties or any Grantor,
and any claim for Patent, Trademark or Copyright infringement); provided that
the Grantors shall not be obligated to indemnify the Collateral Agent or the
Secured Parties, or their respective successors, assigns, agents and employees
to the extent that such liabilities, damages, penalties, suits, costs, and
expenses of any kind and nature resulted from the gross negligence or willful
misconduct of the Collateral Agent or the Secured Parties, or their respective
successors, assigns, agents and employees.
8.20 Counterparts. This Security Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Security Agreement by signing any
such counterpart. Delivery of an executed counterpart of a signature page of
this Security Agreement by facsimile shall be effective as delivery of a
manually executed counterpart of this Security Agreement.
8.21 Amendment and Restatement. This Security Agreement is an amendment
and restatement of the Existing Security Agreements. All "Obligations" under the
Existing Security Agreements and all Liens securing payment of "Obligations"
under the Existing Security Agreements shall in all respects be continuing and
this Security Agreement shall not be deemed to evidence or result in a novation
or repayment and reborrowing of such "Obligations". This Security Agreement
shall supersede the Existing Security Agreements. From and after the Effective
Date, this Security Agreement shall govern the terms of the "Obligations" under
the Existing Security Agreements. To the extent not replaced by Loan Documents
dated as of the date of this Agreement, any "Loan Documents" (as defined in the
Existing Security Agreements) executed in connection with the Existing Credit
Agreement (other than any such Loan Document that is specifically terminated by
the parties thereto) shall continue to be effective, and all references in those
prior Loan Documents to the "Security Agreement", "Pledge Agreement" or words of
like import shall be deemed to refer to this Security Agreement without further
amendment thereof.
8.22 Pledged ULC Shares. Notwithstanding any provisions to the contrary
contained in this Security Agreement or any other document or agreement among
all or some of the parties hereto, the Grantor, as indicated, is the sole
registered and beneficial owner of all Pledged ULC Shares and will remain so
until such time as such Pledged ULC Shares are effectively transferred into the
name of the Agent or any other person on the books and records of the Pledged
ULC Share Issuer. Accordingly such Grantor shall be entitled to receive and
retain for its own account any dividend on or other distribution, if any, in
respect of such Pledged ULC Shares (except insofar as such Grantor has granted a
security interest in such dividend on or other distribution, and any shares
which are collateral shall be delivered to the Agent to hold as collateral
hereunder) and shall have the right to vote such collateral and to control the
direction, management and policies of Pledged ULC Share Issuer or other issuer
of the Pledged ULC Shares to the same extent as the Grantor would if such
collateral were not pledged to the Agent pursuant hereto. Nothing in this
Security Agreement or any other document or agreement among all or some of the
parties hereto is intended to, and nothing in this Security Agreement or any
other document or agreement among all or some of the parties hereto shall,
constitute the Agent or any person other than the Grantor, a member of any
unlimited company for the purposes of the Companies Act (Nova Scotia) until such
time as notice is given to the applicable Grantor and further steps are taken
thereunder so as to register the Agent or other person as holder of Pledged ULC
Shares. To the extent any provision hereof would have the effect of constituting
the Agent as a member of the Pledged ULC Share Issuer or other issuer of the
Pledged ULC Shares prior to such time, such provision shall be severed therefrom
and ineffective with respect
to Collateral which are Pledged ULC Shares without otherwise invalidating or
rendering unenforceable this Security Agreement or invalidating or rendering
unenforceable such provision insofar as it relates to Collateral which are not
Pledged ULC Shares. Except upon the exercise of rights to sell or otherwise
dispose of the Pledged ULC Shares following the occurrence of an Event of
Default hereto, the applicable Grantor shall not cause or permit, or enable any
issuer in which it holds Pledged ULC Shares to cause or permit, the Agent to:
(a) be registered as shareholders or members of such issuer; (b) have any
notation entered in their favour in the share register of such issuer; (c) be
held out as shareholders or members of such issuer; (d) to receive, directly or
indirectly, any dividends, property or other distributions from the Pledged ULC
Share Issuer or other issuer by reason of the Agent holding a security interest
in the Pledged ULC Shares; or (e) to act as a shareholder or member of the
Pledged ULC Share Issuer or other issuer of the Pledged ULC Shares, or exercise
any rights of a shareholder or member including the right to attend a meeting of
the Pledged ULC Share Issuer or other issuer of the Pledged ULC Shares or vote
the Pledged ULC Shares.
ARTICLE IX
NOTICES
9.1 Sending Notices. Any notice required or permitted to be given under
this Security Agreement shall be sent by United States mail, telecopier,
personal delivery or nationally established overnight courier service, and shall
be deemed received (a) when received, if sent by hand or overnight courier
service, or mailed by certified or registered mail notices or (b) when sent, if
sent by telecopier (except that, if not given during normal business hours for
the recipient, shall be deemed to have been given at the opening of business on
the next Business Day for the recipient), in each case addressed to the Grantors
at the applicable address set forth on Exhibit A as their principal place of
business, and to the Collateral Agent and the Secured Parties at the addresses
set forth in accordance with Section 9.01 of the Credit Agreement.
9.2 Change in Address for Notices. Each of the Grantors, the Collateral
Agent and the Secured Parties may change the address for service of notice upon
it by a notice in writing to the other parties.
ARTICLE X
THE COLLATERAL AGENT
Bank of America, N.A. has been appointed Collateral Agent for the Secured
Parties hereunder pursuant to Article VIII of the Credit Agreement. It is
expressly understood and agreed by the parties to this Security Agreement that
any authority conferred upon the Collateral Agent hereunder is subject to the
terms of the delegation of authority made by the Lenders to the Collateral Agent
pursuant to the Credit Agreement, and that the Collateral Agent has agreed to
act (and any successor Collateral Agent shall act) as such hereunder only on the
express conditions contained in such Article VIII. Any successor Collateral
Agent appointed in accordance with Article VIII of the Credit Agreement shall be
entitled to all the rights, interests and benefits of the Collateral Agent
hereunder.
[Signature Page Follows]
IN WITNESS WHEREOF, each Grantor and the Collateral Agent have executed
this Security Agreement as of the date first above written.
DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-1
DURA OPERATING CORP.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-2
DURA AUTOMOTIVE SYSTEMS (CANADA), LTD.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-3
DURA AUTOMOTIVE CANADA ULC
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-4
DURA ONTARIO INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-5
DURA CANADA LP
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-6
TRIDENT AUTOMOTIVE LIMITED
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-7
TRIDENT AUTOMOTIVE CANADA CO.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-8
DURA HOLDINGS ULC
By: /s/ Keith Marchiando
----------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-9
DURA HOLDINGS CANADA LP
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-10
DURA OPERATING CANADA LP
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-11
AUTOMOTIVE AVIATION PARTNERS, LLC
By: DuraAircraft Operating Company,
LLC, its managing member
By: Dura Operating Corp.
Its: Sole Member
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-12
ADWEST ELECTRONICS, INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-13
ATWOOD AUTOMOTIVE, INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-14
DURA CABLES NORTH LLC
By: Atwood Automotive, Inc.
Its: Sole Member
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-15
DURA CABLES SOUTH LLC
By: Atwood Automotive, Inc.
Its: Sole Member
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-16
DURA G.P.
By: Dura Operating Corp
Its: Managing General Partner
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-17
DURA SPICEBRIGHT, INC.
as a Loan Guarantor
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-18
MARK I MOLDED PLASTICS OF TENNESSEE,
INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-19
DURA GLOBAL TECHNOLOGIES, INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-20
DURA AUTOMOTIVE SYSTEMS OF INDIANA,
INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-21
DURA AIRCRAFT OPERATING COMPANY,
LLC.
By: Dura Operating Corp.
Its: Sole Member
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-22
DURA BRAKE SYSTEMS, L.L.C.
By: Dura Operating Corp.
Its: Sole Member
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-23
DURA SHIFTER L.L.C.
By: Dora Operating Corp.
Its: Sole Member
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-24
DURA SERVICES L.L.C.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title: Manager
[Signature Page to Pledge and Security Agreement]
S-25
DURA MANCELONA L.L.C.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title: Manager
[Signature Page to Pledge and Security Agreement]
S-26
DURA FREMONT L.L.C.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title: Manager
[Signature Page to Pledge and Security Agreement]
S-27
DURA GLADWIN L.L.C.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title: Manager
[Signature Page to Pledge and Security Agreement]
S-28
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS, INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-29
UNIVERSAL TOOL & STAMPING COMPANY,
INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-30
TRIDENT AUTOMOTIVE, L.P.
By: Trident Automotive Ltd.
Its: General Partner
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-31
TRIDENT AUTOMOTIVE, L.L.C.
By: Trident Automotive Canada Co.
Its: Managing Member
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-32
ATWOOD MOBILE PRODUCTS, INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-33
CREATION GROUP HOLDINGS, INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-34
KEMBERLY, INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-35
CREATION GROUP, INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-36
CREATION GROUP TRANSPORTATION, INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-37
KEMBERLY, LLC
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-38
SPEC-TEMP, INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-39
CREATION WINDOWS, INC.
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-40
CREATION WINDOWS, LLC
By: /s/ Keith Marchiando
---------------------------------
Name:
Title:
[Signature Page to Pledge and Security Agreement]
S-41
BANK OF AMERICA, N.A., as Collateral Agent
By: /s/ Brian Conok
---------------------------------
Name: Brian Conok
Title: Senior Vice President
[Signature Page to Pledge and Security Agreement]
S-42