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EXHIBIT 10.15(b)
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") dated as of October 21,
1994 is among Hughes Plastics, Inc., a Michigan corporation ("Hughes
Plastics"), and such other persons or entities which from time to time become
parties hereto as debtors (collectively, including Hughes Plastics, the
"Debtors" and individually each a "Debtor") and BANK OF AMERICA ILLINOIS 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, Larizza Industries, Inc. (the "Company") 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, each of the Debtors has executed and delivered a guaranty
(the "Guaranty") of the obligations of the Company under the Credit Agreement;
and
WHEREAS, the obligations of each Debtor under the Guaranty are to be
secured pursuant to this Agreement;
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to the Company 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 any Debtor, any right of
such Debtor to payment for goods sold or leased or for services rendered.
Agent - see the Recitals.
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Agreement- see the Preamble.
Assignee Deposit Account- see Section 4.
Bank- see the Recitals.
Collateral means, with respect to any Debtor, all property and rights
of such Debtor in which a security interest is granted hereunder.
Commitments has the meaning assigned to such term in the Credit
Agreement.
Company- see the Preamble.
Computer Hardware and Software means, with respect to any Debtor, (i)
all of such 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 such 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 such Debtor's rights (including rights as
licensee and lessee) with respect to software programs, whether now owned or
hereafter acquired by such 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 such
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 such Debtor; and (iv) all of such 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 such Debtor, including, without
limitation, flow charts, logic diagrams, manuals, specifications, training
materials, charts and pseudo codes.
Contract Right means, with respect to any Debtor, any right of such
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.
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Default means the occurrence of any of the following events: (a) any
Unmatured Event of Default under Section 12.1.4 of the Credit Agreement; (b)
any Event of Default; or (c) any warranty of any 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 such 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 any Debtor, all of such
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 such 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.
Guaranty - see the Recitals.
Hughes Plastics - see the Preamble.
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 set forth in this definition; the right to sue for all
past, present and future infringements of any of the foregoing 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.
Liabilities means, as to each Debtor, all obligations (monetary or
otherwise) of such Debtor under the Credit Agreement, any Note, the Guaranty,
any other Loan Document or any other document or instrument (including any
Hedging Agreement (as defined
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in the Credit Agreement) entered into with any Bank 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.
Loan Document has the meaning assigned to such term in the Credit
Agreement.
Non-Tangible Collateral means, with respect to any Debtor, such
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, each Debtor hereby mortgages 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 such Debtor's right, title and interest in:
(i) Accounts Receivable;
(ii) Certificated Securities;
(iii) Chattel Paper;
(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;
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(v) Contract Rights;
(vi) Deposit Accounts;
(vii) Documents;
(viii) General Intangibles;
(ix) Goods (including, without limitation, all 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 other
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 expressly prohibit (which
prohibition is enforceable under applicable law) the grant of a
security interest therein, such Debtor's rights in such lease or
license shall be excluded from the foregoing grant for so long as
such prohibition continues, it being understood that upon request
of the Agent, such Debtor will in good faith use reasonable
efforts to obtain consent for the creation of a security interest
in favor of the Agent in such Debtor's rights under such lease or
license.
3. Warranties. Each Debtor warrants that: (i) no financing
statement (other than (a) the existing financing statement filed on behalf of
Toyota Motor Credit Corp. in connection with the lease of a lift truck and (b)
any financial statement which may have been filed on behalf of the Agent or in
connection with security interests or liens expressly permitted by the Credit
Agreement ("Permitted Liens")) covering any of the Collateral is on file in any
public office in connection with the lease of a lift truck; (ii) such 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 hereunder and
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Permitted Liens, with full power and authority to execute this Agreement and
perform such 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 such Debtor to the
Agent or any Bank, and all other written information heretofore or hereafter
furnished by such Debtor to the Agent or any Bank, is and will be true and
correct in all material respects as of the date furnished; (iv) such Debtor's
chief executive office and principal place of business are as set forth on
Schedule I hereto (and such Debtor has not maintained its chief executive
office and principal place of business at any other location at any time after
June 1, 1994); (v) each other location where such Debtor maintains a place of
business is set forth on Schedule II hereto); (vi) such 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 hereto); (vii) during the five years preceding the date hereof,
such 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 such 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 hereto; (viii) Schedule III hereto contains a complete
listing of all of such Debtor's Intellectual Property which is subject to
registration statutes; (ix) the execution and delivery of this Agreement and
the performance by such Debtor of its obligations hereunder are within such
Debtor's corporate or partnership powers, have been duly authorized by all
necessary corporate or partnership 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 such Debtor or of any agreement, indenture, instrument or other
document, or any judgment, order or decree, which is binding upon such Debtor;
(x) this Agreement is a legal, valid and binding obligation of such Debtor,
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 (xi) such 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 such Debtor.
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4. Collections, etc. Until such time during the existence of a
Default as the Agent shall notify such Debtor of the revocation of such power
and authority, each 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 such Debtor for such purpose, use and consume, in
the ordinary course of its business, any raw materials, work in process or
materials normally held by such Debtor for such purpose, and use, in the
ordinary course of its business (but subject to the terms of the Credit
Agreement), the cash proceeds of Collateral and other money which constitutes
Collateral, (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 such 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, each
Debtor will, at its own expense, 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.
Upon request by the Agent during the existence of a Default, each
Debtor will forthwith, upon receipt, transmit and deliver to the Agent, in the
form received, all cash, checks, drafts and other instruments or writings for
the payment of money (properly endorsed, where required, so that such items may
be collected by the Agent) which may be received by such Debtor at any time in
full or partial payment or otherwise as proceeds of any of the Collateral.
Except as the Agent may otherwise consent in writing, any such items which may
be so received by any Debtor will not be commingled with any other of its funds
or property, but will be held separate and apart from its own funds or property
and upon express trust for the Agent until delivery is made to the Agent. Each
Debtor will comply with the terms and conditions of any consent given by the
Agent pursuant to the foregoing sentence.
During the existence of a Default, all items or amounts which are
delivered by any Debtor to the Agent on account of partial or full payment or
otherwise as proceeds of any of the Collateral
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shall be deposited to the credit of a deposit account (each an "Assignee
Deposit Account") of such Debtor with 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.
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. Each Debtor will from
time to time, as the Agent may reasonably 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 such 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 such Debtor and shall be in
such form and detail as the Agent may specify. Each Debtor shall promptly
notify the Agent of the occurrence of any event causing any loss or
depreciation in the value of its Inventory or other Goods which is material to
the Company and its Subsidiaries taken as a whole, and such notice shall
specify the amount of such loss or depreciation.
6. Agreements of the Debtors. Each 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 such 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
such Debtor, the Collateral and the Account Debtors as the Agent may from time
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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 such 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 such 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)
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 shall, if the Agent so requests, be deposited
with or furnished to the Agent; (h) 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; (i) 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 such Debtor's business in all material respects, ordinary wear and tear
excepted; (j) 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; (k) 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; (l) 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; (m) will keep all of the tangible Collateral
in the United States; and (n) 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 such Debtor's
Collateral.
Any expenses incurred without gross negligence or wilful misconduct on
the part of the Agent 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
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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 such 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. Each 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 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.
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 any 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 any Debtor, if mailed, shall be deemed
given three Business Days after the date mailed, postage prepaid, addressed to
such Debtor either at such Debtor's address shown on Schedule I hereto or at
such other address as such Debtor shall have specified in writing to the Agent
as its address for notices hereunder. Any notice from a Debtor to the Agent
shall be given in accordance with Section 14.3 of the Credit Agreement.
Each of the Debtors agrees to pay all expenses (including reasonable
attorney's fees and legal expenses) paid or incurred by the Agent or any Bank
in endeavoring to collect the Liabilities of
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such Debtor, or any part thereof, and in enforcing this Agreement against such
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 Commitments have terminated. If
at any time all or any part of any payment theretofore applied by the Agent or
any Bank to any of the Liabilities is or must be rescinded or returned by the
Agent or such Bank for any reason whatsoever (including, without limitation,
the insolvency, bankruptcy or reorganization of any 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 Bank, 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 Bank 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 entirely performed in the State of
Illinois, subject, however, to the applicability of the Uniform Commercial Code
of any jurisdiction in which any Goods of any 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.
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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 JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF EACH DEBTOR AND THE AGENT
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS 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.
EACH OF EACH DEBTOR AND THE AGENT FURTHER IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH ON
SCHEDULE I HERETO IN THE CASE OF A DEBTOR AND TO 231 SOUTH LASALLE STREET,
CHICAGO, ILLINOIS 60697 IN THE CASE OF THE AGENT (OR, IN EACH CASE, SUCH OTHER
ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE OTHER PARTIES HERETO AS
ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF ILLINOIS. EACH OF EACH DEBTOR AND THE AGENT HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT 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 EACH 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.
HUGHES PLASTICS, INC.
By: /s/ TERENCE C. SEIKEL
Title: Treasurer
BANK OF AMERICA ILLINOIS,
Address: as Agent for the Banks
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Anthony G. Benedetto By: /s/ STEVEN K. AHRENHOLZ
Vice President
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The undersigned is executing
a counterpart hereof for
purposes of becoming a party
hereto:
______________________________
By:___________________________
Title:________________________
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SCHEDULE I
TO SECURITY AGREEMENT
A. Hughes Plastics, Inc.
211 Kerth Street
P.O. Box 86
St. Joseph, Michigan 49085
15
SCHEDULE II
TO SECURITY AGREEMENT
ADDRESSES; NAMES
Business Locations
- - - ------------------
211 Kerth Street
P.O. Box 86
St. Joseph, Michigan 48085
Other Names
- - - -----------
LVB Industries, Inc.
Mergers & Reorganizations
- - - -------------------------
LVB Industries, Inc.
16
SCHEDULE III
TO SECURITY AGREEMENT
PATENTS
-------
PATENT PATENT/SERIAL NO. COUNTRY CO. NAME HELD IN ISSUE DATE
[NONE]
TRADEMARKS
----------
TRADEMARK NAME REGISTRATION/SERIAL NO. COUNTRY CO. NAME HELD IN ISSUE DATE
[NONE]
COPYRIGHTS
----------
COPYRIGHT NAME COUNTRY CO. NAME HELD IN ISSUE DATE
- - - -------------- ------- ----------------
[NONE]