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Exhibit 10.9
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[EXECUTION COUNTERPART]
AMENDED AND RESTATED
PLEDGE AND SECURITY AGREEMENT
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT dated as of November 29,
1996 between:
(1) COMMONWEALTH ALUMINUM CORPORATION, a corporation duly organized
and validly existing under the laws of the State of Delaware (the
"PARENT");
(2) COMMONWEALTH INDUSTRIES, INC., a corporation duly organized and
validly existing under the laws of the State of Delaware ("HOLDINGS");
(3) COMMONWEALTH ALUMINUM LEWISPORT, INC., a corporation duly
organized and validly existing under the laws of the State of Delaware
("CALI");
(4) ALFLEX CORPORATION (formerly named CasTech Aluminum Group Inc.), a
corporation duly organized and validly existing under the laws of the State
of Delaware ("ALFLEX");
(5) BARMET ALUMINUM CORPORATION, a corporation duly organized and
validly existing under the laws of the State of Ohio ("BARMET");
(6) each of the subsidiaries of the Parent identified under the
caption "SUBSIDIARY GUARANTORS" on the signature page hereof (individually
a "SUBSIDIARY GUARANTOR" and, collectively, the "SUBSIDIARY GUARANTORS"
and, together with the Parent, Holdings, CALI, Alflex and Barmet, the
"SECURING PARTIES"); and
(7) NATIONAL WESTMINSTER BANK, PLC, as agent for the lenders or other
financial institutions or entities party,
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as lenders, to the Credit Agreement referred to below (in such capacity,
together with its successors in such capacity, the "ADMINISTRATIVE AGENT").
The Parent, CALI, Alflex, Barmet, the Subsidiary Guarantors, certain
lenders and the Administrative Agent entered into a Credit Agreement dated as of
September 20, 1996 (as in effect on the date hereof, the "EXISTING CREDIT
AGREEMENT"), providing for extensions of credit to be made to the Borrowers in
an aggregate principal amount not exceeding $425,000,000. In connection with the
execution and delivery of the Existing Credit Agreement:
(a) the Parent, CALI, certain other of the Securing Parties and the
Administrative Agent entered into a Pledge and Security Agreement dated as
of September 20, 1996 (as in effect on the date hereof, the "EXISTING
COMMONWEALTH PLEDGE AND SECURITY AGREEMENT") pursuant to which said
Securing Parties granted to the Administrative Agent a security interest in
all of the Collateral (as defined therein) as collateral security for the
Secured Obligations (as so defined); and
(b) Alflex, Barmet and the Administrative Agent entered into a Pledge
and Security Agreement dated as of September 20, 1996 (as in effect on the
date hereof, the "EXISTING CASTECH PLEDGE AND SECURITY AGREEMENT" and,
collectively with the Existing Commonwealth Pledge and Security Agreement,
the "EXISTING PLEDGE AND SECURITY AGREEMENTS") pursuant to which said
Securing Parties granted to the Administrative Agent a security interest in
all of the Collateral (as defined therein) as collateral security for the
Secured Obligations (as so defined).
Concurrently with the execution and delivery of this Amended and Restated
Pledge and Security Agreement, the Securing Parties, certain lenders
(collectively, the "LENDERS") and the Administrative Agent are amending and
restating the Existing Credit Agreement pursuant to an Amended and Restated
Credit Agreement dated as of November 29, 1996 (the Existing Credit
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Agreement as amended and restated and as further modified and supplemented and
in effect from time to time being hereinafter called the "CREDIT AGREEMENT"),
providing, subject to the terms and conditions thereof, for the renewal of the
Borrowers' indebtedness under the Existing Credit Agreement and for additional
extensions of credit to the Borrowers in an aggregate principal amount
(including the indebtedness under the Existing Credit Agreement) not exceeding
$325,000,000. In addition, one or more of the Obligors (as defined in the Credit
Agreement) may from time to time be obligated to one or more of the Lenders
under one or more Interest Rate Protection Agreements (as so defined) (such
obligations being herein referred to as the "INTEREST RATE OBLIGATIONS").
To induce the Lenders to amend and restate the Existing Credit Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Securing Parties and the Administrative Agent
have agreed that the Existing Pledge and Security Agreements shall be hereby
combined, amended and restated as follows:
Section 1. DEFINITIONS. Terms defined in the Credit Agreement are used
herein as defined therein. In addition, as used herein:
"ACCOUNTS" shall have the meaning ascribed thereto in Section 3(d) hereof.
"COLLATERAL" shall have the meaning ascribed thereto in Section 3 hereof.
"COLLATERAL ACCOUNT" shall have the meaning ascribed thereto in Section
4.01 hereof.
"COPYRIGHT COLLATERAL" shall mean all Copyrights, whether now owned or
hereafter acquired by any Securing Party, including each Copyright identified in
Annex 2 hereto.
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"COPYRIGHTS" shall mean all copyrights, copyright registrations and
applications for copyright registrations, including, without limitation, all
renewals and extensions thereof, the right to recover for all past, present and
future infringements thereof, and all other rights of any kind whatsoever
accruing thereunder or pertaining thereto.
"DOCUMENTS" shall have the meaning ascribed thereto in Section 3(j) hereof.
"EQUIPMENT" shall have the meaning ascribed thereto in Section 3(h) hereof.
"INSTRUMENTS" shall have the meaning ascribed thereto in Section 3(e)
hereof.
"INTELLECTUAL PROPERTY" shall mean, collectively, all Copyright Collateral,
all Patent Collateral and all Trademark Collateral, together with (a) all
inventions, processes, production methods, proprietary information, know-how and
trade secrets; (b) all licenses or user or other agreements granted to any
Securing Party with respect to any of the foregoing, in each case whether now or
hereafter owned or used including, without limitation, the licenses or other
agreements with respect to the Copyright Collateral, the Patent Collateral or
the Trademark Collateral, listed in Annex 5 hereto; (c) all information,
customer lists, identification of suppliers, data, plans, blueprints,
specifications, designs, drawings, recorded knowledge, surveys, engineering
reports, test reports, manuals, materials standards, processing standards,
performance standards, catalogs, computer and automatic machinery software and
programs; (d) all field repair data, sales data and other information relating
to sales or service of products now or hereafter manufactured; (e) all
accounting information and all media in which or on which any information or
knowledge or data or records may be recorded or stored and all computer programs
used for the compilation or printout of such information, knowledge, records or
data; and (f) all licenses, consents, permits,
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variances, certifications and approvals of governmental agencies now or
hereafter held by any Securing Party.
"INVENTORY" shall have the meaning ascribed thereto in Section 3(f) hereof.
"ISSUERS" shall mean, collectively, the respective corporations identified
beneath the names of the Securing Parties on Annex 1 hereto under the caption
"Issuer" and each other Subsidiary of the Parent that is formed or acquired
after the date hereof (other than, in each case, Subsidiaries of the Parent that
are not required to become Subsidiary Guarantors pursuant to Section 9.17(a) of
the Credit Agreement).
"MOTOR VEHICLES" shall mean motor vehicles, tractors, trailers and other
like property, whether or not the title thereto is governed by a certificate of
title or ownership.
"PATENT COLLATERAL" shall mean all Patents, whether now owned or hereafter
acquired by any Securing Party, including each Patent identified in Annex 3
hereto.
"PATENTS" shall mean all patents and patent applications, including,
without limitation, the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties, damages and
payments now or hereafter due and/or payable under and with respect thereto,
including, without limitation, damages and payments for past or future
infringements thereof, the right to sue for past, present and future
infringements thereof, and all rights corresponding thereto throughout the
world.
"PLEDGED STOCK" shall have the meaning ascribed thereto in Section 3(a)
hereof.
"SECURED OBLIGATIONS" shall mean, collectively, (a) the principal of and
interest on the Loans made by the Lenders
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to, and the Note(s) held by each Lender of, the Borrowers, and all other amounts
from time to time owing to the Lenders or the Administrative Agent by the
Obligors under the Credit Documents (including, without limitation, all
Reimbursement Obligations and Guaranteed Obligations and interest thereon owing
by the Obligors), (b) all Interest Rate Obligations owing by the Obligors to the
Lenders and (c) all obligations of the Securing Parties to the Lenders and the
Administrative Agent hereunder.
"STOCK COLLATERAL" shall mean, collectively, the Collateral described in
clauses (a) through (c) of Section 3 hereof and the proceeds of and to any such
property and, to the extent related to any such property or such proceeds, all
books, correspondence, credit files, records, invoices and other papers.
"TRADEMARK COLLATERAL" shall mean all Trademarks, whether now owned or
hereafter acquired by any Securing Party, including each Trademark identified in
Annex 4 hereto. Notwithstanding the foregoing, the Trademark Collateral does not
and shall not include any Trademark that would be rendered invalid, abandoned,
void or unenforceable by reason of its being included as part of the Trademark
Collateral.
"TRADEMARKS" shall mean all trade names, trademarks and service marks,
logos, trademark and service mark registrations, and applications for trademark
and service mark registrations, including, without limitation, all renewals of
trademark and service mark registrations, all rights corresponding thereto
throughout the world, the right to recover for all past, present and future
infringements thereof, all other rights of any kind whatsoever accruing
thereunder or pertaining thereto, together, in each case, with the product lines
and goodwill of the business connected with the use of, and symbolized by, each
such trade name, trademark and service mark.
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"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code as in
effect from time to time in the State of New York.
Section 2. REPRESENTATIONS AND WARRANTIES. Each Securing Party represents
and warrants to the Lenders and the Administrative Agent that:
(a) Such Securing Party is the sole beneficial owner of the Collateral
in which it purports to grant a security interest pursuant to Section 3
hereof and no Lien exists or will exist upon such Collateral at any time
(and no right or option to acquire the same exists in favor of any other
Person), except for Liens permitted under Section 9.06 of the Credit
Agreement and except for the pledge and security interest in favor of the
Administrative Agent for the benefit of the Lenders created or provided for
herein, which pledge and security interest constitute a first priority
perfected pledge and security interest in and to all of such Collateral
(other than as expressly contemplated herein or therein and Intellectual
Property registered or otherwise located outside of the United States of
America).
(b) The Pledged Stock represented by the certificates identified under
the name of such Securing Party in Annex 1 hereto is, and all other Pledged
Stock in which such Securing Party shall hereafter grant a security
interest pursuant to Section 3 hereof will be, duly authorized, validly
existing, fully paid and non-assessable and none of such Pledged Stock is
or will be subject to any contractual restriction, or any restriction under
the charter or by-laws of the respective Issuer of such Pledged Stock, upon
the transfer of such Pledged Stock (except for any such restriction
contained herein or in the Credit Agreement).
(c) The Pledged Stock represented by the certificates identified under
the name of such Securing Party in Annex 1 hereto constitutes all of the
issued and outstanding shares of capital stock of any class of the Issuers
beneficially owned by such Securing Party on the date hereof (whether or
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not registered in the name of such Securing Party) and said Annex 1
correctly identifies, as at the date hereof, the respective Issuers of such
Pledged Stock, the respective class and par value of the shares comprising
such Pledged Stock and the respective number of shares (and registered
owners thereof) represented by each such certificate.
(d) Annexes 2, 3 and 4 hereto, respectively, set forth under the name
of such Securing Party a complete and correct list of all Copyrights,
Patents and Trademarks owned by such Securing Party on the date hereof;
except pursuant to licenses and other user agreements entered into by such
Securing Party in the ordinary course of business, that are listed in Annex
5 hereto, such Securing Party owns and possesses the right to use, and has
done nothing to authorize or enable any other Person to use, any Copyright,
Patent or Trademark listed in said Annexes 2, 3 and 4, and all
registrations listed in said Annexes 2, 3 and 4 are valid and in full force
and effect; except as may be set forth in said Annex 5, such Securing Party
owns and possesses the right to use all Copyrights, Patents and Trademarks.
(e) Annex 5 hereto sets forth a complete and correct list of all
licenses and other user agreements included in the Intellectual Property on
the date hereof.
(f) To such Securing Party's knowledge, (i) except as set forth in
Annex 5 hereto, there is no violation by others of any right of such
Securing Party with respect to any Copyright, Patent or Trademark listed in
Annexes 2, 3 and 4 hereto, respectively, under the name of such Securing
Party and (ii) such Securing Party is not infringing in any respect upon
any Copyright, Patent or Trademark of any other Person; and no proceedings
have been instituted or are pending against such Securing Party or, to such
Securing Party's knowledge, threatened, and no claim against such Securing
Party has been received by such Securing Party, alleging any such
violation, except as may be set forth in said Annex 5.
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(g) Such Securing Party does not own any Trademarks registered in the
United States of America to which the last sentence of the definition of
Trademark Collateral applies.
(h) Any goods now or hereafter produced by such Securing Party or any
of its Subsidiaries included in the Collateral have been and will be
produced in compliance with the requirements of the Fair Labor Standards
Act, as amended.
Section 3. COLLATERAL. Each Securing Party hereby confirms to the
Administrative Agent and each Lender the pledge and grant to the Administrative
Agent (for the benefit of each Lender) under the Existing Pledge and Security
Agreements of a security interest in, and as collateral security for the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations, each Securing Party hereby pledges and
grants to the Administrative Agent, for the benefit of the Lenders as
hereinafter provided, a security interest in all of such Securing Party's right,
title and interest in the following property, whether now owned by such Securing
Party or hereafter acquired and whether now existing or hereafter coming into
existence (all being collectively referred to herein as "COLLATERAL"):
(a) the shares of Capital Stock of the Issuers represented by the
certificates identified in Annex 1 hereto under the name of such Securing
Party and all other shares of Capital Stock of whatever class of the
Issuers, now or hereafter owned by such Securing Party, in each case
together with the certificates evidencing the same (collectively, the
"PLEDGED STOCK");
(b) all shares, securities, moneys or property representing a dividend
on any of the Pledged Stock, or representing a distribution or return of
capital upon or in respect of the Pledged Stock, or resulting from a
split-up, revision, reclassification or other like change of the Pledged
Stock or otherwise received in exchange therefor,
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and any subscription warrants, rights or options issued to the holders of,
or otherwise in respect of, the Pledged Stock;
(c) without affecting the obligations of such Securing Party under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger in which an Issuer is not the
surviving corporation, all shares of each class of the Capital Stock of the
successor corporation (unless such successor corporation is such Securing
Party itself) formed by or resulting from such consolidation or merger (the
Pledged Stock, together with all other certificates, shares, securities,
properties or moneys as may from time to time be pledged hereunder pursuant
to clause (a) or (b) above and this clause (c) being herein collectively
called the "STOCK COLLATERAL");
(d) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of such Securing Party constituting any right to
the payment of money, including (but not limited to) all moneys due and to
become due to such Securing Party in respect of any loans or advances or
for Inventory or Equipment or other goods sold or leased or for services
rendered, all moneys due and to become due to such Securing Party under any
guarantee (including a letter of credit) of the purchase price of Inventory
or Equipment sold by such Securing Party and all tax refunds (such
accounts, general intangibles and moneys due and to become due being herein
called collectively "ACCOUNTS");
(e) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of such Securing Party evidencing,
representing, arising from or existing in respect of, relating to, securing
or otherwise supporting the payment of, any of the Accounts, including (but
not limited to) promissory notes, drafts, bills of exchange and trade
acceptances (herein collectively called "INSTRUMENTS");
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(f) all inventory (as defined in the Uniform Commercial Code) of such
Securing Party, including Motor Vehicles held by such Securing Party for
lease (including lease to Subsidiaries of the Securing Parties), fuel,
tires and other spare parts, all goods obtained by such Securing Party in
exchange for such inventory, and any products made or processed from such
inventory including all substances, if any, commingled therewith or added
thereto (herein collectively called "INVENTORY");
(g) all Intellectual Property and all other accounts or general
intangibles not constituting Intellectual Property or Accounts;
(h) all equipment (as defined in the Uniform Commercial Code) of such
Securing Party, including all Motor Vehicles (herein collectively called
"EQUIPMENT");
(i) each contract and other agreement of such Securing Party relating
to the sale or other disposition of Inventory or Equipment;
(j) all documents of title (as defined in the Uniform Commercial Code)
or other receipts of such Securing Party covering, evidencing or
representing Inventory or Equipment (herein collectively called
"DOCUMENTS");
(k) all rights, claims and benefits of such Securing Party against any
Person arising out of, relating to or in connection with Inventory or
Equipment purchased by such Securing Party, including, without limitation,
any such rights, claims or benefits against any Person storing or
transporting such Inventory or Equipment;
(l) the balance from time to time in the Collateral Account;
(m) all other tangible and intangible personal property and fixtures
of such Securing Party, including,
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without limitation, all proceeds, products, offspring, accessions, rents,
profits, income, benefits, substitutions and replacements of and to any of
the property of such Securing Party described in the preceding clauses of
this Section 3 (including, without limitation, any proceeds of insurance
thereon and all causes of action, claims and warranties now or hereafter
held by any Securing Party in respect of any of the items listed above)
and, to the extent related to any property described in said clauses or
such proceeds, products and accessions, all books, correspondence, credit
files, records, invoices and other papers, including without limitation all
tapes, cards, computer runs and other papers and documents in the
possession or under the control of such Securing Party or any computer
bureau or service company from time to time acting for such Securing Party.
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Section 4. CASH PROCEEDS OF COLLATERAL.
4.01 COLLATERAL ACCOUNT. There is hereby established with the
Administrative Agent a cash collateral account (the "COLLATERAL ACCOUNT") in the
name and under the sole dominion and control of the Administrative Agent into
which there shall be deposited from time to time the cash proceeds of any of the
Collateral (including proceeds of insurance thereon) required to be delivered to
the Administrative Agent pursuant hereto and into which the Securing Parties may
from time to time deposit any additional amounts that any of them wishes to
pledge to the Administrative Agent for the benefit of the Lenders as additional
collateral security hereunder or that, as provided in Sections 2.10 and 10 of
the Credit Agreement, they are required to pledge as additional collateral
security hereunder. The balance from time to time in the Collateral Account
shall constitute part of the Collateral hereunder and shall not constitute
payment of the Secured Obligations until applied as hereinafter provided. Except
as expressly provided in the next sentence, the Administrative Agent shall remit
the collected balance outstanding to the credit of the Collateral Account to or
upon the order of the respective Securing Party as such Securing Party through
the Parent shall from time to time instruct. However, at any time following the
occurrence and during the continuance of an Event of Default, the Administrative
Agent may (and, if instructed by the Lenders as specified in Section 11.03 of
the Credit Agreement, shall) in its (or their) discretion apply or cause to be
applied (subject to collection) the balance from time to time outstanding to the
credit of the Collateral Account to the payment of the Secured Obligations in
the manner specified in Section 5.09 hereof. The balance from time to time in
the Collateral Account shall be subject to withdrawal only as provided herein.
4.02 PROCEEDS OF ACCOUNTS. At any time after the occurrence and during the
continuance of an Event of Default, each Securing Party shall, upon the request
of the Administrative Agent, instruct all account debtors and other Persons
obligated in respect of all Accounts to make all payments in respect of the
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Accounts either (a) directly to the Administrative Agent (by instructing that
such payments be remitted to a post office box which shall be in the name and
under the control of the Administrative Agent) or (b) to one or more other banks
in the United States of America (by instructing that such payments be remitted
to a post office box which shall be in the name and under the control of the
Administrative Agent) under arrangements, in form and substance satisfactory to
the Administrative Agent pursuant to which such Securing Party shall have
irrevocably instructed such other bank (and such other bank shall have agreed)
to remit all proceeds of such payments directly to the Administrative Agent for
deposit into the Collateral Account. All payments made to the Administrative
Agent, as provided in the preceding sentence, shall be immediately deposited in
the Collateral Account. In addition to the foregoing, each Securing Party agrees
that, at any time after the occurrence and during the continuance of an Event of
Default, if the proceeds of any Collateral hereunder (including the payments
made in respect of Accounts) shall be received by it, such Securing Party shall,
upon the request of the Administrative Agent, as promptly as possible deposit
such proceeds into the Collateral Account. Until so deposited, all such proceeds
shall be held in trust by such Securing Party for and as the property of the
Administrative Agent and shall not be commingled with any other funds or
property of such Securing Party.
4.03 INVESTMENT OF BALANCE IN COLLATERAL ACCOUNT. Amounts on deposit in the
Collateral Account shall be invested from time to time in such Permitted
Investments as the respective Securing Party (or, after the occurrence and
during the continuance of a Default, the Administrative Agent) shall determine,
which Permitted Investments shall be held in the name and be under the control
of the Administrative Agent, PROVIDED that (a) at any time after the occurrence
and during the continuance of an Event of Default, the Administrative Agent may
(and, if instructed by the Lenders as specified in Section 11.03 of the Credit
Agreement, shall) in its (or their) discretion at any time and from time to time
elect to liquidate any such Permitted Investments and to apply or cause to be
applied the proceeds thereof to the payment of the Secured Obligations in the
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manner specified in Section 5.09 hereof and (b) if requested by the respective
Securing Party through the Borrowers, such Permitted Investments may be held in
the name and under the control of one or more of the Lenders (and in that
connection each Lender, pursuant to Section 11.10 of the Credit Agreement) has
agreed that such Permitted Investments shall be held by such Lender as a
collateral sub-agent for the Administrative Agent hereunder).
4.04 COVER FOR LETTER OF CREDIT LIABILITIES. Amounts deposited into the
Collateral Account as cover for Letter of Credit Liabilities pursuant to Section
2.10 or Section 10 of the Credit Agreement shall be held by the Administrative
Agent in a separate sub-account (designated "LETTER OF CREDIT LIABILITIES
SUB-ACCOUNT") and all amounts held in such sub-account shall constitute
collateral security FIRST for the Letter of Credit Liabilities outstanding from
time to time and SECOND as collateral security for the other Secured Obligations
hereunder.
Section 5. FURTHER ASSURANCES; REMEDIES. In furtherance of the grant of the
pledge and security interest pursuant to Section 3 hereof, the Securing Parties
hereby jointly and severally agree with each Lender and the Administrative Agent
as follows:
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5.01 DELIVERY AND OTHER PERFECTION. Each Securing Party shall:
(a) if any of the shares, securities, moneys or property required to
be pledged by such Securing Party under clauses (a), (b) and (c) of Section
3 hereof are received by such Securing Party, forthwith either (i) transfer
and deliver to the Administrative Agent such shares or securities so
received by such Securing Party (together with the certificates for any
such shares and securities duly endorsed in blank or accompanied by undated
stock powers duly executed in blank), all of which thereafter shall be held
by the Administrative Agent, pursuant to the terms of this Agreement, as
part of the Collateral or (ii) take such other action as the Administrative
Agent shall deem necessary or appropriate to duly record the Lien created
hereunder in such shares, securities, moneys or property in said clauses
(a), (b) and (c);
(b) deliver and pledge to the Administrative Agent any and all
Instruments, endorsed and/or accompanied by such instruments of assignment
and transfer in such form and substance as the Administrative Agent may
request; PROVIDED that so long as no Default shall have occurred and be
continuing, such Securing Party may retain for collection in the ordinary
course any Instruments received by such Securing Party in the ordinary
course of business and the Administrative Agent shall, promptly upon
request of such Securing Party through the Borrowers, make appropriate
arrangements for making any Instrument pledged by such Securing Party
available to such Securing Party for purposes of presentation, collection
or renewal (any such arrangement to be effected, to the extent deemed
appropriate by the Administrative Agent, against trust receipt or like
document);
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may
be necessary or desirable (in the
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judgment of the Administrative Agent) to create, preserve, perfect or
validate the security interest granted pursuant hereto or to enable the
Administrative Agent to exercise and enforce its rights hereunder with
respect to such pledge and security interest, including, without
limitation, causing any or all of the Stock Collateral to be transferred of
record into the name of the Administrative Agent or its nominee (and the
Administrative Agent agrees that if any Stock Collateral is transferred
into its name or the name of its nominee, the Administrative Agent will
thereafter promptly give to the respective Securing Party copies of any
notices and communications received by it with respect to the Stock
Collateral pledged by such Securing Party hereunder), PROVIDED that notices
to account debtors in respect of any Accounts or Instruments shall be
subject to the provisions of clause (i) below;
(d) without limiting the obligations of such Securing Party under
Section 5.04(c) hereof, upon the acquisition after the date hereof by such
Securing Party of any Equipment covered by a certificate of title or
ownership, at the request of the Administrative Agent, cause the
Administrative Agent to be listed as the lienholder on such certificate of
title and within 120 days such request deliver evidence of the same to the
Administrative Agent;
(e) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise mark such books and records in such
manner as the Administrative Agent may reasonably require in order to
reflect the security interests granted by this Agreement;
(f) furnish to the Administrative Agent from time to time (but, unless
a Default shall have occurred and be continuing, no more frequently than
quarterly) statements and schedules further identifying and describing the
Copyright Collateral, the Patent Collateral and the Trademark Collateral,
respectively, and such other reports in connection with the Copyright
Collateral, the Patent Collateral and the Trademark Collateral, as the
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Administrative Agent may reasonably request, all in reasonable detail;
(g) (i) within 15 days after the date hereof, deliver to the
Administrative Agent amendments to Annexes 2, 3, 4 and 5 hereto such that
said Annexes 2, 3 and 4, respectively, set forth under the name of each
Securing Party a complete and correct list of all Copyrights, Patents and
Trademarks owned by such Securing Party on the date hereof and said Annex 5
sets forth a complete and correct list of all licenses and other user
agreements included in the Intellectual Property on the date hereof; and
(ii) promptly upon request of the Administrative Agent, following receipt
by the Administrative Agent of any statements, schedules or reports
pursuant to clause (f) above, modify this Agreement by amending Annexes 2,
3 and/or 4 hereto, as the case may be, to include any Copyright, Patent or
Trademark that becomes part of the Collateral under this Agreement;
(h) permit representatives of the Administrative Agent, upon
reasonable notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Collateral, and
permit representatives of the Administrative Agent to be present at such
Securing Party's place of business to receive copies of all communications
and remittances relating to the Collateral, and forward copies of any
notices or communications received by such Securing Party with respect to
the Collateral, all in such manner as the Administrative Agent may require;
(i) upon the occurrence and during the continuance of any Event of
Default, upon request of the Administrative Agent, promptly notify (and
such Securing Party hereby authorizes the Administrative Agent so to
notify) each account debtor in respect of any Accounts or Instruments that
such Collateral has been assigned to the Administrative Agent hereunder,
and that any payments due or to become due
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in respect of such Collateral are to be made directly to the Administrative
Agent; and
(j) promptly after such Securing Party shall acquire or form any
Subsidiary (other than a Subsidiary that is not required to become a
Subsidiary Guarantor pursuant to Section 9.17(a) of the Credit Agreement),
deliver to the Administrative Agent an amendment to Annex 1 hereto, such
that after giving effect to such acquisition or formation, the
representations set forth in Sections 2(b) and (c) hereof (assuming that
each reference to "the date hereof" therein referred to the date of such
acquisition or formation) shall be true and complete as of such date.
5.02 OTHER FINANCING STATEMENTS AND LIENS. Except as otherwise permitted
under Section 9.06 of the Credit Agreement, without the prior written consent of
the Administrative Agent (granted with the authorization of the Lenders as
specified in Section 11.09 of the Credit Agreement), no Securing Party shall
file or suffer to be on file, or authorize or permit to be filed or to be on
file, in any jurisdiction, any financing statement or like instrument with
respect to the Collateral in which the Administrative Agent is not named as the
sole secured party for the benefit of the Lenders.
5.03 PRESERVATION OF RIGHTS. The Administrative Agent shall not be required
to take steps necessary to preserve any rights against prior parties to any of
the Collateral.
5.04 SPECIAL PROVISIONS RELATING TO CERTAIN COLLATERAL.
(a) STOCK COLLATERAL.
(1) The Securing Parties will cause the Stock Collateral to constitute at
all times 100% of the total number of shares of each class of Capital Stock of
each Issuer then outstanding.
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(2) So long as no Event of Default shall have occurred and be continuing,
the Securing Parties shall have the right to exercise all voting, consensual and
other powers of ownership pertaining to the Stock Collateral for all purposes
not inconsistent with the terms of this Agreement, the Credit Agreement, the
Notes or any other instrument or agreement referred to herein or therein,
PROVIDED that the Securing Parties jointly and severally agree that they will
not vote the Stock Collateral in any manner that is inconsistent with the terms
of this Agreement, the Credit Agreement, the Notes or any such other instrument
or agreement; and the Administrative Agent shall execute and deliver to the
Securing Parties or cause to be executed and delivered to the Securing Parties
all such proxies, powers of attorney, dividend and other orders, and all such
instruments, without recourse, as the Securing Parties may reasonably request
for the purpose of enabling the Securing Parties to exercise the rights and
powers that they are entitled to exercise pursuant to this Section 5.04(a)(2).
(3) Unless and until an Event of Default has occurred and is continuing,
the Securing Parties shall be entitled to receive and retain any dividends on
the Stock Collateral paid in cash out of earned surplus.
(4) If any Event of Default shall have occurred, then so long as such Event
of Default shall continue, and whether or not the Administrative Agent or any
Lender exercises any available right to declare any Secured Obligation due and
payable or seeks or pursues any other relief or remedy available to it under
applicable law or under this Agreement, the Credit Agreement, the Notes or any
other agreement relating to such Secured Obligation, all dividends and other
distributions on the Stock Collateral shall be paid directly to the
Administrative Agent and retained by it in the Collateral Account as part of the
Stock Collateral, subject to the terms of this Agreement, and, if the
Administrative Agent shall so request in writing, the Securing Parties jointly
and severally agree to execute and deliver to the Administrative Agent
appropriate additional dividend, distribution and other orders and documents to
that end, PROVIDED that if such Event of Default is cured, any such
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dividend or distribution theretofore paid to the Administrative Agent shall,
upon request of the Securing Parties (except to the extent theretofore applied
to the Secured Obligations), be returned by the Administrative Agent to the
Securing Parties.
(b) INTELLECTUAL PROPERTY.
(1) For the purpose of enabling the Administrative Agent to exercise rights
and remedies under Section 5.05 hereof at such time as the Administrative Agent
shall be lawfully entitled to exercise such rights and remedies, and for no
other purpose, each Securing Party hereby grants to the Administrative Agent, to
the extent assignable, an irrevocable, non-exclusive license (exercisable
without payment of royalty or other compensation to such Securing Party) to use,
assign, license or sublicense any of the Intellectual Property now owned or
hereafter acquired by such Securing Party, wherever the same may be located,
including in such license reasonable access to all media in which any of the
licensed items may be recorded or stored and to all computer programs used for
the compilation or printout thereof.
(2) Notwithstanding anything contained herein to the contrary, but subject
to the provisions of Section 9.05(c) of the Credit Agreement that limit the
right of the Securing Parties to dispose of their property, so long as no Event
of Default shall have occurred and be continuing, the Securing Parties will be
permitted to exploit, use, enjoy, protect, license, sublicense, assign, sell,
dispose of or take other actions with respect to the Intellectual Property in
the ordinary course of the business of the Securing Parties. In furtherance of
the foregoing, unless an Event of Default shall have occurred and be continuing
the Administrative Agent shall from time to time, upon the request of the
respective Securing Party through the Parent, execute and deliver any
instruments, certificates or other documents, in the form so requested, that
such Securing Party through the Parent shall have certified are appropriate (in
their judgment) to allow them to take any action permitted above (including
relinquishment of the license provided pursuant to clause (1) immediately above
as to any specific Intellectual Property). Further, upon the
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payment in full of all of the Secured Obligations and cancellation or
termination of the Commitments and Letter of Credit Liabilities or earlier
expiration of this Agreement or release of the Collateral, the Administrative
Agent shall grant back to the Securing Parties the license granted pursuant to
clause (1) immediately above. The exercise of rights and remedies under Section
5.05 hereof by the Administrative Agent shall not terminate the rights of the
holders of any licenses or sublicenses theretofore granted by the Securing
Parties in accordance with the first sentence of this clause (2).
(c) MOTOR VEHICLES. Each Securing Party shall, upon the request of the
Administrative Agent, deliver to the Administrative Agent originals of the
certificates of title or ownership for the Motor Vehicles owned by it with the
Administrative Agent listed as lienholder and take such other action as the
Administrative Agent shall deem appropriate to perfect the security interest
created hereunder in all such Motor Vehicles.
5.05 EVENTS OF DEFAULT, ETC. During the period during which an Event of
Default shall have occurred and be continuing:
(a) each Securing Party shall, at the request of the Administrative
Agent, assemble the Collateral owned by it at such place or places,
reasonably convenient to both the Administrative Agent and such Securing
Party, designated in its request;
(b) the Administrative Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and may
extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, any of the Collateral;
(c) the Administrative Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the jurisdiction
where the rights and remedies are asserted) and such additional rights
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and remedies to which a secured party is entitled under the laws in effect
in any jurisdiction where any rights and remedies hereunder may be
asserted, including, without limitation, the right, to the maximum extent
permitted by law, to exercise all voting, consensual and other powers of
ownership pertaining to the Collateral as if the Administrative Agent were
the sole and absolute owner thereof (and each Securing Party agrees to take
all such action as may be appropriate to give effect to such right);
(d) the Administrative Agent in its discretion may, in its name or in
the name of the Securing Parties or otherwise, demand, sue for, collect or
receive any money or property at any time payable or receivable on account
of or in exchange for any of the Collateral, but shall be under no
obligation to do so; and
(e) the Administrative Agent may, upon ten business days' prior
written notice to the Securing Parties of the time and place, with respect
to the Collateral or any part thereof that shall then be or shall
thereafter come into the possession, custody or control of the
Administrative Agent, the Lenders or any of their respective agents, sell,
lease, assign or otherwise dispose of all or any part of such Collateral,
at such place or places as the Administrative Agent deems best, and for
cash or for credit or for future delivery (without thereby assuming any
credit risk), at public or private sale, without demand of performance or
notice of intention to effect any such disposition or of the time or place
thereof (except such notice as is required above or by applicable statute
and cannot be waived), and the Administrative Agent or any Lender or anyone
else may be the purchaser, lessee, assignee or recipient of any or all of
the Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of the Securing
Parties, any such demand, notice and right or equity being hereby expressly
waived and released. In the event of any
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sale, assignment, or other disposition of any of the Trademark Collateral,
the goodwill connected with and symbolized by the Trademark Collateral
subject to such disposition shall be included, and the Securing Parties
shall supply to the Administrative Agent or its designee, for inclusion in
such sale, assignment or other disposition, all Intellectual Property
relating to such Trademark Collateral. The Administrative Agent may,
without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any time or place to
which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
5.05, including by virtue of the exercise of the license granted to the
Administrative Agent in Section 5.04(b) hereof, shall be applied in accordance
with Section 5.09 hereof.
The Securing Parties recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Administrative Agent may be compelled, with respect to any
sale of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Securing Parties acknowledge that any such private sales may be at prices and on
terms less favorable to the Administrative Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such circumstances,
agree that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Administrative Agent shall have no
obligation to engage in public sales and no obligation to delay the sale of any
Collateral for the period of time necessary to permit the respective Issuer or
issuer thereof to register it for public sale.
5.06 DEFICIENCY. If the proceeds of sale, collection or other realization
of or upon the Collateral pursuant to
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Section 5.05 hereof are insufficient to cover the costs and expenses of such
realization and the payment in full of the Secured Obligations, the Securing
Parties shall remain liable for any deficiency.
5.07 REMOVALS, ETC. Without at least 30 days' prior written notice to the
Administrative Agent, no Securing Party shall (i) maintain any of its books and
records with respect to the Collateral at any office or maintain its principal
place of business at any place, or permit any Inventory or Equipment to be
located anywhere, other than at the address indicated beneath the signature of
the Parent to the Credit Agreement or at one of the locations identified in
Annex 6 hereto under its name or in transit from one of such locations to
another or (ii) change its name, or the name under which it does business, from
the name shown on the signature pages hereto.
5.08 PRIVATE SALE. The Administrative Agent and the Lenders shall incur no
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 5.05 hereof conducted in a commercially
reasonable manner. Each Securing Party hereby waives any claims against the
Administrative Agent or any Lender arising by reason of the fact that the price
at which the Collateral may have been sold at such a private sale was less than
the price that might have been obtained at a public sale or was less than the
aggregate amount of the Secured Obligations.
5.09 APPLICATION OF PROCEEDS. Except as otherwise herein expressly provided
and except as provided below in this Section 5.09, the proceeds of any
collection, sale or other realization of all or any part of the Collateral
pursuant hereto, and any other cash at the time held by the Administrative Agent
under Section 4 hereof or this Section 5, shall be applied by the Administrative
Agent:
FIRST, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Administrative Agent and the fees and expenses of its
agents and counsel, and all
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expenses incurred and advances made by the Administrative Agent in
connection therewith;
NEXT, to the payment in full of the Secured Obligations, in each case
equally and ratably in accordance with the respective amounts thereof then
due and owing or as the Lenders holding the same may otherwise agree; and
FINALLY, to the payment to the respective Securing Party, or their
respective successors or assigns, or as a court of competent jurisdiction
may direct, of any surplus then remaining.
Notwithstanding the foregoing, the proceeds of any cash or other amounts held in
the "Letter of Credit Liabilities Sub-Account" of the Collateral Account
pursuant to Section 4.04 hereof shall be applied FIRST to the Letter of Credit
Liabilities outstanding from time to time and SECOND to the other Secured
Obligations in the manner provided above in this Section 5.09.
As used in this Section 5, "PROCEEDS" of Collateral shall mean cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Securing Parties or any issuer of or
obligor on any of the Collateral.
5.10 ATTORNEY-IN-FACT. Without limiting any rights or powers granted by
this Agreement to the Administrative Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the Administrative Agent is hereby appointed the
attorney-in-fact of each Securing Party for the purpose of carrying out the
provisions of this Agreement (including, without limitation, this Section 5) and
taking any action and executing any instruments that the Administrative Agent
may deem necessary or advisable to accomplish the purposes hereof, which
appointment as attorney-in-fact is irrevocable and coupled with an interest.
Without limiting the generality of the foregoing, so long as the Administrative
Agent shall be entitled under this Section 5 to
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make collections in respect of the Collateral, the Administrative Agent shall
have the right and power to receive, endorse and collect all checks made payable
to the order of any Securing Party representing any dividend, payment or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same.
5.11 PERFECTION. Prior to or concurrently with the execution and delivery
of this Agreement, each Securing Party shall (i) file such financing statements
and other documents in such offices as the Administrative Agent may request to
perfect the security interests granted by Section 3 hereof, (ii) to the extent
requested by the Administrative Agent, cause the Administrative Agent to be
listed as the lienholder on all certificates of title or ownership relating to
Motor Vehicles owned by such Securing Party and (iii) deliver to the
Administrative Agent all certificates identified in Annex 1 hereto, accompanied
by undated stock powers duly executed in blank.
5.12 TERMINATION. When all Secured Obligations shall have been paid in full
and the Commitments of the Lenders under the Credit Agreement and all Letter of
Credit Liabilities shall have expired or been terminated, this Agreement shall
terminate, and the Administrative Agent shall forthwith cause to be assigned,
transferred and delivered, against receipt but without any recourse, warranty or
representation whatsoever, any remaining Collateral and money received in
respect thereof, to or on the order of the respective Securing Party and to be
released and canceled all licenses and rights referred to in Section 5.04(b)
hereof. The Administrative Agent shall also execute and deliver to the
respective Securing Party upon such termination such Uniform Commercial Code
termination statements, certificates for terminating the Liens on the Motor
Vehicles and such other documentation as shall be reasonably requested by the
respective Securing Party to effect the termination and release of the Liens on
the Collateral.
5.13 FURTHER ASSURANCES. Each Securing Party agrees that, from time to time
upon the written request of the
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Administrative Agent, such Securing Party will execute and deliver such further
documents and do such other acts and things as the Administrative Agent may
reasonably request in order fully to effect the purposes of this Agreement.
5.14 RELEASE OF MOTOR VEHICLES. So long as no Default shall have occurred
and be continuing, upon the request of any Securing Party, the Administrative
Agent shall execute and deliver to such Securing Party such instruments as such
Securing Party shall reasonably request to remove the notation of the
Administrative Agent as lienholder on any certificate of title for any Motor
Vehicle; PROVIDED that any such instruments shall be delivered, and the release
effective, only upon receipt by the Administrative Agent of a certificate from
such Securing Party stating that the Motor Vehicle the lien on which is to be
released is to be sold or has suffered a casualty loss (with title thereto
passing to the casualty insurance company therefor in settlement of the claim
for such loss).
Section 6. MISCELLANEOUS.
6.01 NO WAIVER. No failure on the part of the Administrative Agent or any
Lender to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Administrative Agent or
any Lender of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any remedies provided by
law.
6.02 NOTICES. All notices, requests, consents and demands hereunder shall
be in writing and telecopied or delivered to the intended recipient at its
"Address for Notices" specified pursuant to Section 12.02 of the Credit
Agreement and shall be deemed to have been given at the times specified in said
Section 12.02.
6.03 EXPENSES. The Securing Parties jointly and severally agree to
reimburse each of the Lenders and the
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Administrative Agent for all reasonable costs and expenses of the Lenders and
the Administrative Agent (including, without limitation, the reasonable fees and
expenses of legal counsel) in connection with (i) any Default and any
enforcement or collection proceeding resulting therefrom, including, without
limitation, all manner of participation in or other involvement with (w)
performance by the Administrative Agent of any obligations of the Securing
Parties in respect of the Collateral that the Securing Parties have failed or
refused to perform, (x) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, or any actual or attempted sale, or any
exchange, enforcement, collection, compromise or settlement in respect of any of
the Collateral, and for the care of the Collateral and defending or asserting
rights and claims of the Administrative Agent in respect thereof, by litigation
or otherwise, including expenses of insurance, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (ii) the enforcement of this Section 6.03, and all such
costs and expenses shall be Secured Obligations entitled to the benefits of the
collateral security provided pursuant to Section 3 hereof.
6.04 AMENDMENTS, ETC. The terms of this Agreement may be waived, altered or
amended only by an instrument in writing duly executed by each Securing Party
and the Administrative Agent (with the consent of the Lenders as specified in
Section 11.09 of the Credit Agreement). Any such amendment or waiver shall be
binding upon the Administrative Agent and each Lender, each holder of any of the
Secured Obligations and each Securing Party.
6.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of each Securing Party,
the Administrative Agent, the Lenders and each holder of any of the Secured
Obligations (PROVIDED, however, that no Securing Party shall assign or transfer
its rights hereunder without the prior written consent of the Administrative
Agent).
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6.06 CAPTIONS. The captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
6.07 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
6.08 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
6.09 AGENTS AND ATTORNEYS-IN-FACT. The Administrative Agent may employ
agents and attorneys-in-fact in connection herewith and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith.
6.10 SEVERABILITY. If any provision hereof is invalid and unenforceable in
any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Administrative Agent and the
Lenders in order to carry out the intentions of the parties hereto as nearly as
may be possible and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge and Security
Agreement to be duly executed and delivered as of the day and year first above
written.
COMMONWEALTH ALUMINUM CORPORATION
By _________________________
Title:
COMMONWEALTH INDUSTRIES, INC.
By _________________________
Title:
COMMONWEALTH ALUMINUM LEWISPORT, INC.
By _________________________
Title:
CASTECH ALUMINUM GROUP INC.
By _________________________
Title:
BARMET ALUMINUM CORPORATION
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By _________________________
Title:
SUBSIDIARY GUARANTORS
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COMMONWEALTH ALUMINUM SALES
CORPORATION
By _________________________
Title:
NATIONAL WESTMINSTER BANK, PLC,
as Administrative Agent
By _________________________
Title:
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