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EXHIBIT 10.10(c)
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") dated as of May 6, 1994 is
among LARIZZA INDUSTRIES, INC., an Ohio corporation (the "Debtor") and
CONTINENTAL BANK N.A. in its capacity as agent for the Banks referred to below
(in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, the Debtor has entered into a Credit Agreement dated as of
May 6, 1994 (as amended or otherwise modified from time to time, the "Credit
Agreement") with various financial institutions (collectively the "Banks" and
individually each a "Bank"), and the Agent, pursuant to which the Banks have
agreed to make loans to, and issue or participate in letters of credit for the
account of, the Company;
WHEREAS, the obligations of the Debtor under the Credit Agreement are
to be secured pursuant to this Agreement;
NOW, THEREFORE, for and in consideration of any loan, advance,
issuance of letters of credit or other financial accommodation heretofore or
hereafter made to the Debtor by the Banks or any of them, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. When used herein, (a) the terms Certificated
Security, Chattel Paper, Deposit Account, Document, Equipment, Fixture, Goods,
Inventory, Instrument, Security and Uncertificated Security shall have the
respective meanings assigned to such terms in the Uniform Commercial Code (as
defined below) and (b) the following terms have the following meanings (such
definitions to be applicable to both the singular and plural forms of such
terms):
Account Debtor means the party who is obligated on or under any
Account Receivable, Contract Right or General Intangible.
Account Receivable means, with respect to the Debtor, any right of the
Debtor to payment for goods sold or leased or for services rendered.
Agent - see the Preamble.
Agreement - see the Preamble.
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Assignee Deposit Account - see Section 4
Banks - see the Recitals.
Collateral means, with respect to the Debtor, all property and rights
of the Debtor in which a security interest is granted hereunder.
Commitments has the meaning assigned to such term in the Credit
Agreement.
Computer Hardware and Software means, with respect to the Debtor, (i)
all of the Debtor's rights (including rights as licensee and lessee) with
respect to computer and other electronic data processing hardware, whether now
owned or hereafter acquired by the Debtor, including, without limitation, all
integrated computer systems, central processing units, memory units, display
terminals, printers, features, computer elements, card readers, tape drives,
hard and soft disk drives, cables, electrical supply hardware, generators,
power equalizers, accessories and all peripheral devices and other related
computer hardware; (ii) all of the Debtor's rights (including rights as
licensee and lessee) with respect to software programs, whether now owned or
hereafter acquired by the Debtor, designed for use on the computers and
electronic data processing hardware described in clause (i) above, including,
without limitation, all operating system software, utilities and application
programs in whatsoever form (source code and object code in magnetic tape, disk
or hard copy format or any other listings whatsoever); (iii) all of the
Debtor's rights (including rights as licensee and lessee) with respect to any
firmware associated with any of the foregoing, whether now owned or hereafter
acquired by the Debtor; and (iv) all of the Debtor's rights (including rights
as licensee and lessee) with respect to documentation for hardware, software
and firmware described in the preceding clauses (i), (ii) and (iii) above,
whether now owned or hereafter acquired by the Debtor, including, without
limitation, flow charts, logic diagrams, manuals, specifications, training
materials, charts and pseudo codes.
Contract Right means, with respect to the Debtor, any right of the
Debtor to payment under a contract for the sale or lease of goods or the
rendering of services, which right is at the time not yet earned by
performance.
Credit Agreement - see the Recitals.
Debtor - see the Preamble.
Default means the occurrence of any of the following events:
(a) any Unmatured Event of Default under Section 12.1.4 of the
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Credit Agreement; (b) any Event of Default; or (c) any warranty of the Debtor
herein is untrue or misleading in any material respect and, as a result
thereof, the Agent's security interest in, or rights and remedies with respect
to, any material portion of the Collateral of the Debtor is impaired or
otherwise adversely affected.
Event of Default has the meaning assigned to such term in the Credit
Agreement.
General Intangibles means, with respect to the Debtor, all of the
Debtor's "general intangibles" as defined in Uniform Commercial Code as in
effect in Illinois on the date hereof and, in any event, includes (without
limitation) all of the Debtor's trademarks, trade names, patents, copyrights,
trade secrets, customer lists, inventions, designs, software programs, mask
works, goodwill, registrations, licenses, franchises, tax refund claims,
guarantee claims, security interests and rights to indemnification.
Intellectual Property means all past, present and future: trade
secrets and other proprietary information; trademarks, service marks, business
names, designs, logos, indicia, and/or other source and/or business identifiers
and the goodwill of the business relating thereto and all registrations or
applications for registrations which have heretofore been or may hereafter be
issued thereon throughout the world; copyrights (including, without limitation,
copyrights for computer programs) and copyright registrations or applications
for registrations which have heretofore been or may hereafter be issued
throughout the world and all tangible property embodying the copyrights;
unpatented inventions (whether or not patentable); patent applications and
patents; industrial designs, industrial design applications and registered
industrial designs; license agreements related to any of the foregoing set
forth in this definition and income therefrom; books, records, writings,
computer tapes or disks, flow diagrams, specification sheets, source codes,
object codes and other physical manifestations, embodiments or incorporations
of any of the foregoing owned by the Company set forth in this definition; the
right to sue for all past, present and future infringements of any of the
foregoing owned by the Company set forth in this definition; and all common law
and other rights throughout the world in and to all of the foregoing set forth
in this definition.
Letter of Credit means any letter of credit issued pursuant to the
Credit Agreement.
Liabilities means all obligations (monetary or otherwise) of the
Debtor under or in connection with the Credit Agreement, any Note, any Letter
of Credit, any other Loan Document or any other
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document or instrument (including any Hedging Agreement (as defined in the
Credit Agreement) entered into with any Banks or any affiliate thereof)
executed in connection therewith, howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, now or hereafter existing,
or due or to become due including, without limitation, any post-petition
interest accruing during any bankruptcy reorganization of the Debtor or other
similar proceeding.
Loan Document has the meaning assigned to such term in the Credit
Agreement.
Non-Tangible Collateral means, with respect to the Debtor, the
Debtor's Accounts Receivable, Contract Rights and General Intangibles.
Notes has the meaning assigned to such term in the Credit Agreement.
Permitted Liens - see clause (i) of Section 3.
Subsidiary has the meaning assigned to such term in the Credit
Agreement.
Uniform Commercial Code means the Uniform Commercial Code as in effect
in the State of Illinois on the date of this Agreement; provided, however, as
used in Section 8 hereof, "Uniform Commercial Code" means the Uniform
Commercial Code as in effect from time to time in the applicable jurisdiction.
Unmatured Event of Default has the meaning assigned to such term in
the Credit Agreement.
Terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
2. Grant of Security Interest. As security for the payment of
all Liabilities, the Debtor hereby assigns to the Agent for the benefit of the
Banks, and grants to the Agent for the benefit of the Banks a continuing
security interest in, the following, whether now or hereafter existing or
acquired:
All of the Debtor's:
(i) Accounts Receivable;
(ii) Certificated Securities;
(iii) Chattel Paper;
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(iv) Computer Hardware and Software and all rights with respect
thereto, including, without limitation, any and all licenses,
options, warranties, service contracts, program services, test
rights, maintenance rights, support rights, improvement
rights, renewal rights and indemnifications, and any
substitutions, replacements, additions or model conversions of
any of the foregoing;
(v) Contract Rights;
(vi) Deposit Accounts;
(vii) Documents;
(viii) General Intangibles;
(ix) Goods (including, without limitation, all of its Equipment,
Fixtures and Inventory), and all accessions, additions,
attachments, improvements, substitutions and replacements
thereto and therefor;
(x) Instruments;
(xi) Intellectual Property;
(xii) money (of every jurisdiction whatsoever);
(xiii) Uncertificated Securities; and
(xiv) to the extent not included in the foregoing, all personal
property of any kind or description;
together with all books, records, writings, data bases,
information and other property relating to, used or useful in
connection with, evidencing, embodying, incorporating or
referring to any of the foregoing, and all proceeds, products,
offspring, rents, issues, profits and returns of and from any of
the foregoing; provided, however, that to the extent that the
provisions of any lease or license of Computer Hardware and
Software or Intellectual Property prohibit (which prohibition is
enforceable under applicable law) the assignment thereof or the
grant of a security interest therein, the Debtor's rights in such
lease or license shall be excluded from the foregoing assignment
and grant for so long as such prohibition continues, it being
understood that upon request of the Agent, the Debtor will in
good faith use all reasonable efforts to obtain consent for the
creation of a security interest in favor of the Agent in the
Debtor's rights under such lease or license.
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3. Warranties. The Debtor warrants that: (i) no financing
statement (other than any which may have been filed on behalf of the Agent or
in connection with security interests or liens permitted by the Credit
Agreement ("Permitted Liens") or other than in connection with indebtedness
that will be repaid on the date hereof) covering any of the Collateral is on
file in any public office; (ii) the Debtor is and will be the lawful owner,
lessee or licensee of all Collateral, free of all liens and claims whatsoever,
other than the security interest created hereunder and Permitted Liens, with
full power and authority to execute this Agreement and perform the Debtor's
obligations hereunder, and to subject the Collateral to the security interest
hereunder; (iii) all information with respect to Collateral and Account Debtors
set forth in any schedule, certificate or other writing at any time heretofore
or hereafter furnished by the Debtor to the Agent or any Banks, and all other
written information heretofore or hereafter furnished by the Debtor to the
Agent or any Banks, is and will be true and correct in all material respects as
of the date furnished; (iv) the Debtor's chief executive office and principal
place of business are as set forth on Schedule I hereto (and the Debtor has not
maintained its chief executive office and principal place of business at any
other location at any time after January 1, 1993); (v) each other location
where the Debtor maintains a place of business or where any Collateral is
located is set forth on Schedule II hereto and no Collateral is in the
possession of any bailee, warehouseman, agent or processor except as
specifically described on Schedule II hereto; (vi) the Debtor is not now known
and during the five years preceding the date hereof has not previously been
known by any trade name except as previously disclosed to the Agent and the
Banks in writing prior to the date hereof (including those set forth on
Schedule II); (vii) during the five years preceding the date hereof, the Debtor
has not been known by any legal name different from the one set forth on the
signature page of this Agreement except as previously disclosed to the Banks in
writing prior to the date hereof, nor has the Debtor been the subject of any
merger or other corporate reorganization except as previously disclosed to the
Banks in writing prior to the date hereof (including those set forth on
Schedule II); (viii) Schedule III hereto contains a complete listing of all of
the Debtor's Intellectual Property which is subject to registration statutes;
(ix) the execution and delivery of this Agreement and the performance by the
Debtor of its obligations hereunder are within the Debtor's corporate powers,
have been duly authorized by all necessary corporate action, have received all
necessary governmental approval (if any shall be required), and do not and will
not contravene or conflict with any provision of law or of the organizational
documents of the Debtor or of any agreement, indenture, instrument or other
document, or any judgment, order or decree, which is binding upon the Debtor;
(x) this Agreement is a legal, valid and binding obligation of the Debtor,
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enforceable in accordance with its terms, except that the enforceability of
this Agreement may be limited by bankruptcy, insolvency, fraudulent conveyance,
fraudulent transfer, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and creates a valid and, except for Permitted
Liens, first priority security interest in the Collateral and such security
interest is entitled to all rights, priorities and benefits afforded by the
Uniform Commercial Code; and (xi) the Debtor is in compliance with the
requirements of all applicable laws (including, without limitation, the
provisions of the Fair Labor Standards Act), rules, regulations and orders of
every governmental authority, the non-compliance with which would materially
adversely affect any material portion of the Collateral of the Debtor.
4. Collections, etc. Until such time as the Agent shall notify
the Debtor of the revocation of such power and authority, the Debtor (a) may,
in the ordinary course of its business, at its own expense, sell, lease or
furnish under contracts of service any of the Inventory normally held by the
Debtor for such purpose, and use and consume, in the ordinary course of its
business, any raw materials, work in process or materials normally held by the
Debtor for such purpose, (b) will, at its own expense, endeavor to collect, as
and when due, all amounts due under any of the Non-Tangible Collateral,
including the taking of such action with respect to such collection as the
Agent may reasonably request or, in the absence of such request, as the Debtor
may deem advisable, and (c) may grant, in the ordinary course of business, to
any party obligated on any of the Non-Tangible Collateral, any rebate, refund
or allowance to which such party may be lawfully entitled, and may accept, in
connection therewith, the return of Goods, the sale or lease of which shall
have given rise to such Non-Tangible Collateral. The Agent, however, may, at
any time that a Default exists, whether before or after any revocation of such
power and authority or the maturity of any of the Liabilities, notify any
parties obligated on any of the Non-Tangible Collateral to make payment to the
Agent of any amounts due or to become due thereunder and enforce collection of
any of the Non-Tangible Collateral by suit or otherwise and surrender, release
or exchange all or any part thereof, or compromise or extend or renew for any
period (whether or not longer than the original period) any indebtedness
thereunder or evidenced thereby. Upon request of the Agent during the
existence of a Default, the Debtor will, at its own expense, notify any parties
obligated on any of the Non-Tangible Collateral to make payment directly to the
Agent of any amounts due or to become due thereunder.
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During the existence of a Default, all items or amounts which are
delivered by the Debtor to the Agent on account of partial or full payment or
otherwise as proceeds of any of the Collateral shall be deposited to the credit
of a deposit account (each an "Assignee Deposit Account") of the Debtor with
the Agent, or a bank designated by the Agent, as security for payment of the
Liabilities. No Debtor shall have any right to withdraw any funds deposited in
the applicable Assignee Deposit Account. The Agent may, from time to time, in
its discretion, and shall upon request of the applicable Debtor made not more
than once in any week, apply all or any of the then balance, representing
collected funds, in the Assignee Deposit Account, toward payment of the
Liabilities, whether or not then due, in such order of application as the Agent
may determine, and the Agent may, from time to time, in its discretion, release
all or any of such balance to the applicable Debtor.
If and to the extent that a perfected security interest hereunder in
any Collateral shall cease to be perfected for any reason whatsoever
(including, without limitation, use or disposition by the Debtor of any
proceeds of Collateral), then such Collateral (referred to in this paragraph as
"released Collateral") shall be deemed thereby released from the security
interest hereunder in exchange, as of the time of such release, for any other
Collateral of equivalent value in which a perfected security interest hereunder
is being obtained contemporaneously or has been most recently obtained, but
only to the extent such other Collateral does not represent either (a)
Collateral in exchange for which any previously released Collateral shall have
been deemed released, or (b) Collateral of equivalent value to any loan or
advance (otherwise than by renewal or extension) from the Agent to the Company
in which Collateral a perfected security interest hereunder shall have been
obtained contemporaneously with or most recently prior to such loan or advance.
After a Default, the Agent is authorized to endorse, in the name of
the applicable Debtor, any item, howsoever received by the Agent, representing
any payment on or other proceeds of any of the Collateral.
5. Certificates, Schedules and Reports. The Debtor will from
time to time, as the Agent may request, deliver to the Agent such schedules,
certificates and reports respecting all or any of the Collateral at the time
subject to the security interest hereunder, and the items or amounts received
by the Debtor in full or partial payment of any of the Collateral, as the Agent
may reasonably request. Any such schedule, certificate or report shall be
executed by a duly authorized officer of the Debtor and shall be in such form
and detail as the Agent may specify. The Debtor shall promptly notify the
Agent of the occurrence of any event causing any loss or depreciation in the
value of its
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Inventory or other Goods which is material to the Debtor, and such notice shall
specify the amount of such loss or depreciation.
6. Agreements of the Debtors. The Debtor (a) will, upon request
of the Agent, execute such financing statements and other documents (and pay
the cost of filing or recording the same in all public offices reasonably
deemed appropriate by the Agent) and do such other acts and things (including,
without limitation, delivery to the Agent of any Instruments or Certificated
Securities which constitute Collateral), all as the Agent may from time to time
reasonably request, to establish and maintain a valid security interest in the
Collateral (free of all other liens, claims and rights of third parties
whatsoever, other than Permitted Liens) to secure the payment of the
Liabilities; (b) will keep all its Inventory at, and will not maintain any
place of business at any location other than, its address(es) shown on
Schedules I and II hereto or at such other addresses of which the Debtor shall
have given the Agent not less than 10 days' prior written notice; (c) will keep
its records concerning the Non-Tangible Collateral in such a manner as will
enable the Agent or its designees to determine at any time the status of the
Non-Tangible Collateral; (d) will furnish the Agent such information concerning
the Debtor, the Collateral and the Account Debtors as the Agent may from time
to time reasonably request; (e) will permit the Agent and its designees, from
time to time, on reasonable notice and at reasonable times and intervals during
normal business hours (or at any time without notice during the existence of a
Default) to inspect the Debtor's Inventory and other Goods, and to inspect,
audit and make copies of and extracts from all records and all other papers in
the possession of the Debtor pertaining to the Collateral and the Account
Debtors, and will, upon request of the Agent during the existence of a Default,
deliver to the Agent all of such records and papers; (f) will, upon request of
the Agent, stamp on its records concerning the Collateral, and add on all
Chattel Paper constituting a portion of the Collateral, a notation, in form
satisfactory to the Agent, of the security interest of the Agent hereunder; (g)
except as permitted by the Credit Agreement or as excluded from the definition
of Asset Sale under the Credit Agreement, will not sell, lease, assign or
create or permit to exist any lien on or security interest in any Collateral
other than Permitted Liens and liens and security interests in favor of the
Agent; (h) without limiting the provisions of Section 10.3 of the Credit
Agreement, will at all times keep all its Inventory and other Goods insured
under policies maintained with reputable, financially sound insurance companies
against loss, damage, theft and other risks to such extent as is customarily
maintained by companies similarly situated, and cause all such policies to
provide that loss thereunder shall be payable to the Agent as its interest may
appear and such policies or certificates thereof
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shall, if the Agent so requests, be deposited with or furnished to the Agent;
(i) will take such actions as are reasonably necessary to keep its Inventory in
good repair and condition, ordinary wear and tear and up to $500,000 of
obsolescent Inventory excepted; (j) will take such actions as are reasonably
necessary to keep its Equipment in good repair and condition and in good
working or running order to the extent necessary to conduct Debtor's business
in all material respects, ordinary wear and tear excepted; (k) will promptly
pay before delinquent all license fees, registration fees, taxes, assessments
and other charges which may be levied upon or assessed against the ownership,
operation, possession, maintenance or use of its Equipment and other Goods
except as permitted by Section 10.4(c) of the Credit Agreement; (l) will, upon
request of the Agent, (i) cause to be noted on the applicable certificate, in
the event any of its Equipment is covered by a certificate of title, the
security interest of the Agent in the Equipment covered thereby, and (ii)
deliver all such certificates to the Agent or its designees; (m) will take all
steps reasonably necessary to protect, preserve and maintain all of its rights
in the Collateral except as otherwise permitted by the Loan Documents; (n) will
keep all of the tangible Collateral in the United States; and (o) will
reimburse the Agent for all expenses, including reasonable attorneys' fees and
legal expenses, incurred by the Agent in seeking to collect or enforce any
rights in respect of the Debtor's Collateral.
Any expenses incurred in protecting, preserving and maintaining any
Collateral shall be borne by the applicable Debtor. Whenever a Default shall
be existing, the Agent shall have the right to bring suit to enforce any or all
of the Intellectual Property or licenses thereunder, in which event the
applicable Debtor shall at the request of the Agent do any and all lawful acts
and execute any and all proper documents required by the Agent in aid of such
enforcement and the Debtor shall promptly, upon demand, reimburse and indemnify
the Agent for all reasonable costs and expenses incurred by the Agent in the
exercise of its rights under this Section 6. Notwithstanding the foregoing,
the Agent shall have no obligations or liabilities regarding any of the
Collateral by reason of, or arising out of, this Agreement in the absence of
its gross negligence or willful misconduct.
7. Default. Whenever a Default shall be existing, the Agent may
exercise from time to time any rights and remedies available to it under
applicable law. The Debtor agrees, in case of Default, (i) to assemble, at its
expense, all its Inventory and other Goods (other than Fixtures) at a
convenient place or places acceptable to the Agent, and (ii) at the Agent's
request, to execute all such documents and do all such other things which may
be necessary or desirable in order to enable the Agent or its
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nominee to be registered as owner of the Intellectual Property with any
competent registration authority. Any notification of intended disposition of
any of the Collateral required by law shall be deemed reasonably and properly
given if given at least ten days before such disposition. Any proceeds of any
disposition by the Agent of any of the Collateral may be applied by the Agent
to payment of expenses in connection with the Collateral, including reasonable
attorneys' fees and legal expenses, and any balance of such proceeds may be
applied by the Agent toward the payment of such of the Liabilities, and in such
order of application, as the Agent may from time to time elect.
The Debtor hereby appoints the Agent as the Debtor's attorney-in-fact,
with full power authority in the place of the Debtor and in the name of the
Debtor, upon the occurrence and during the continuance of a Default, in Agent's
discretion, to take any action and to execute any instrument that it may deem
necessary to accomplish the purposes of this Agreement.
8. General. The Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral in its
possession if it takes such action for that purpose as any applicable Debtor
requests in writing, but failure of the Agent to comply with any such request
shall not of itself be deemed a failure to exercise reasonable care, and no
failure of the Agent to preserve or protect any rights with respect to such
Collateral against prior parties, or to do any act with respect to the
preservation of such Collateral not so requested by the Debtor, shall be deemed
of itself a failure to exercise reasonable care in the custody or preservation
of such Collateral.
Any notice from the Agent to the Debtor, or from the Debtor to the
Agent shall be given in accordance with Section 14.3 of the Credit Agreement.
The Debtor agrees to pay all expenses (including reasonable attorney's
fees and legal expenses) paid or incurred by the Agent or any Banks in
endeavoring to collect the Liabilities of the Debtor, or any part thereof, and
in enforcing this Agreement against the Debtor, and such obligations will
themselves be Liabilities.
No delay on the part of the Agent in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
the Agent of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy.
This Security Agreement shall remain in full force and effect until
all Liabilities have been paid in full and all
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Commitments, Letters of Credit and Hedging Agreements entered into with the
Banks or any affiliate thereof have terminated. If at any time all or any part
of any payment theretofore applied by the Agent or any Banks to any of the
Liabilities is or must be rescinded or returned by the Agent or such Banks for
any reason whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of the Debtor), such Liabilities shall, for the
purposes of this Agreement, to the extent that such payment is or must be
rescinded or returned, be deemed to have continued in existence,
notwithstanding such application by the Agent or such Banks, and this Agreement
shall continue to be effective or be reinstated, as the case may be, as to such
Liabilities, all as though such application by the Agent or such Banks had not
been made.
This Agreement has been delivered at Chicago, Illinois, and shall be
construed in accordance with and governed by the laws of the State of Illinois
applicable to contracts made and to be performed entirely within the State of
Illinois, subject, however, to the applicability of the Uniform Commercial Code
of any jurisdiction in which any Goods of the Debtor may be located at any
given time. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
The rights and privileges of the Agent hereunder shall inure to the
benefit of its successors and assigns.
This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement. At any time after the date of
this Agreement, one or more additional persons or entities may become parties
hereto by executing and delivering to the Agent a counterpart of this
Agreement. Immediately upon such execution and delivery (and without any
further action), each such additional person or entity will become a party to,
and will be bound by all the terms of, this Agreement.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY
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JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE DEBTOR
AND THE AGENT HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF
THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE. THE DEBTOR AND THE AGENT FURTHER IRREVOCABLY CONSENT TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS SET
FORTH ON SCHEDULE I HERETO IN THE CASE OF THE DEBTOR AND IN THE CASE OF THE
AGENT TO 231 SOUTH LASALLE STREET, CHICAGO, ILLINOIS 60697 (OR SUCH OTHER
ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE OTHER PARTY AS ITS ADDRESS
FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
ILLINOIS. THE DEBTOR AND THE AGENT HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH THEY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE DEBTOR, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF)
EACH BANK HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY
OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
day and year first above written.
LARIZZA INDUSTRIES, INC.
By: /s/ Terence C. Seikel
Name: Terence C. Seikel
Title: Chief Financial Officer
CONTINENTAL BANK N.A., as Agent
By: /s/ Steven Ahrenholz
Name: Steven Ahrenholz
Title: Vice President
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