EXHIBIT 10.3
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SECURITY AGREEMENT
among
CONSOLIDATED CONTAINER HOLDINGS LLC,
CONSOLIDATED CONTAINER COMPANY LLC,
VARIOUS SUBSIDIARIES,
and
BANKERS TRUST COMPANY
as Collateral Agent
Dated as of July 1, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I
SECURITY INTERESTS....................................................2
1.1 Grant of Security Interests..................................2
1.2 Power of Attorney............................................2
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS.....................2
2.1 Necessary Filings............................................2
2.2 No Liens.....................................................3
2.3 Other Financing Statements...................................3
2.4 Chief Executive Office; Records..............................3
2.5 Location of Inventory and Equipment..........................4
2.6 Trade Names; Change of Name..................................4
2.7 Recourse.....................................................5
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS.............................5
3.1 Additional Representations and Warranties....................5
3.2 Maintenance of Records.......................................5
3.3 Modification of Terms; etc...................................5
3.4 Collection...................................................6
3.5 Direction to Account Debtors; etc............................6
3.6 Instruments..................................................6
3.7 Further Actions..............................................6
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS..............................7
4.1 Additional Representations and Warranties....................7
4.2 Licenses and Assignments.....................................7
4.3 Infringements................................................7
4.4 Preservation of Marks........................................7
4.5 Maintenance of Registration..................................8
4.6 Future Registered Marks......................................8
4.7 Remedies.....................................................8
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ARTICLE V
SPECIAL PROVISIONS CONCERNING
TRADE SECRET RIGHTS, PATENTS AND COPYRIGHTS...........................9
5.1 Additional Representations and Warranties....................9
5.2 Licenses and Assignments.....................................9
5.3 Infringements................................................9
5.4 Maintenance of Patents or Copyrights.........................9
5.5 Prosecution of Patent or Copyright Application...............9
5.6 Other Patents and Copyrights................................10
5.7 Remedies....................................................10
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL.................................10
6.1 Protection of Collateral Agent's Security...................10
6.2 Further Actions.............................................11
6.3 Financing Statements........................................11
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT.........................11
7.1 Remedies; Obtaining the Collateral Upon Default.............11
7.2 Remedies; Disposition of the Collateral.....................13
7.3 Waiver of Claims............................................13
7.4 Application of Proceeds.....................................14
7.5 Remedies Cumulative.........................................15
7.6 Discontinuance of Proceedings...............................16
ARTICLE VIII
INDEMNITY............................................................16
8.1 Indemnity...................................................16
8.2 Indemnity Obligations Secured by Collateral; Survival.......17
ARTICLE IX
DEFINITIONS..........................................................17
ARTICLE X
MISCELLANEOUS........................................................22
10.1 Notices.....................................................22
10.2 Waiver; Amendment...........................................23
10.3 Obligations Absolute........................................24
10.4 Successors and Assigns......................................24
10.5 Headings Descriptive........................................24
10.6 Severability................................................24
10.7 Governing Law...............................................25
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10.8 Assignors' Duties...........................................25
10.9 Termination; Release........................................25
10.10 Collateral Agent............................................26
10.11 Counterparts................................................26
10.12 Additional Assignors........................................26
ANNEX A Schedule of Chief Executive Offices; Record Locations
ANNEX B Schedule of Equipment and Inventory Locations
ANNEX C Schedule of Trade and Fictitious Names
ANNEX D Schedule of Marks
ANNEX E Schedule of Patents and Patent Applications
ANNEX F Schedule of Copyrights and Copyright Applications
ANNEX G Assignment of Security Interest in United States Trademarks
ANNEX H Assignment of Security Interest in United States Patents
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SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of July 1, 1999, among each of the
undersigned (each, an "Assignor" and, together with any other entity that
becomes a party hereto pursuant to Section 10.12 hereof, collectively, the
"Assignors") and BANKERS TRUST COMPANY, as Collateral Agent (the "Collateral
Agent") for the Secured Creditors (as defined below). Capitalized terms used
herein shall have the meaning specified in Article IX herein or, if not defined
therein, as specified in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Consolidated Container Holdings LLC ("Holdings"),
Consolidated Container Company LLC (the "Borrower"), the financial institutions
from time to time party thereto (the "Banks"), Morgan Guaranty Trust Company of
New York, as Documentation Agent, Donaldson, Lufkin & Jenrette Securities
Corporation, as Syndication Agent and Bankers Trust Company, as Administrative
Agent (the "Administrative Agent"), (the Administrative Agent, the Banks and the
Collateral Agent, collectively, the "Bank Creditors") have entered into a Credit
Agreement, dated as of July 1, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") providing for the making of
Loans and the issuance or creation of, and participation in, Letters of Credit
as contemplated therein;
WHEREAS, the Borrower may from time to time be party to one or more
Interest Rate Protection Agreements or Other Hedging Agreements with a Bank or
an affiliate of a Bank (each such Bank or affiliate, even if the respective Bank
subsequently ceases to be a Bank under the Credit Agreement for any reason,
together with such Bank's or affiliate's successors and assigns, collectively,
the "Interest Rate Creditors", and together with the Bank Creditors, the
"Secured Creditors");
WHEREAS, pursuant to the Guaranty contained in the Credit Agreement
(the "Holdings Guaranty"), Holdings has guaranteed to the Secured Creditors the
payment when due of all obligations and liabilities of the Borrower under or
with respect to the Credit Documents and the Interest Rate Protection Agreements
or Other Hedging Agreements which may hereinafter arise;
WHEREAS, pursuant to the Subsidiary Guaranty dated as of even date
herewith (as amended, modified or supplemented from time to time, the
"Subsidiary Guaranty"), each Assignor (other than Holdings and the Borrower) has
jointly and severally guaranteed to the Secured Creditors the payment when due
of the Guaranteed Obligations (as and to the extent defined in the Subsidiary
Guaranty);
WHEREAS, it is a condition precedent to the making of Loans and the
issuance and participation in, Letters of Credit under the Credit Agreement that
each Assignor shall have executed and delivered to the Collateral Agent this
Agreement; and
WHEREAS, each Assignor desires to execute this Agreement to satisfy
the condition described in the preceding paragraph;
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NOW, THEREFORE, in consideration of the benefits accruing to each
Assignor, the receipt and sufficiency of which are hereby acknowledged, each
Assignor hereby makes the following representations and warranties and hereby
covenants and agrees as follows:
ARTICLE I
SECURITY INTERESTS
Grant of Security Interests. As security for the prompt and complete
payment and performance when due of all of its Obligations, each Assignor does
hereby grant to the Collateral Agent for the ratable benefit of the Secured
Creditors, a continuing security interest in, all of the right, title and
interest of such Assignor in, to and under all of the following, whether now
existing or hereafter from time to time acquired: (i) each and every Receivable,
(ii) all Contracts, together with all Contract Rights arising thereunder, (iii)
all Inventory, (iv) all Equipment, (v) all Marks, together with the
registrations and right to all renewals thereof, and the goodwill of the
business of such Assignor symbolized by the Marks, (vi) the Cash Collateral
Account if established for such Assignor and all moneys securities and
instruments deposited or required to be deposited in such Cash Collateral
Account, (vii) all Patents and Copyrights and all reissues, renewals or
extensions thereof, (viii) all computer programs of such Assignor and all
intellectual property rights therein and all other proprietary information of
such Assignor, including, but not limited to, Trade Secret Rights, (ix) all
insurance policies, (x) all other Goods, General Intangibles, Chattel Paper,
Documents and Instruments (other than the Pledged Securities), and (xi) all
Proceeds and products of any and all of the foregoing (all of the above
collectively, the "Collateral").
1.1 Power of Attorney. Each Assignor hereby constitutes and appoints
the Collateral Agent its true and lawful attorney, irrevocably, with full power
after the occurrence of and during the continuance of a Noticed Event of Default
(in the name of such Assignor or otherwise) to act, require, demand, receive,
compound and give acquittance for any and all moneys and claims for moneys due
or to become due to such Assignor under or arising out of the Collateral, to
endorse any checks or other instruments or orders in connection therewith and to
file any claims or take any action or institute any proceedings which the
Collateral Agent may deem to be necessary or advisable in the premises, which
appointment as attorney is coupled with an interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and delivery
of this Agreement, as follows:
2.1 Necessary Filings. All filings, registrations and recordings
necessary or appropriate to create, preserve, protect and perfect the security
interest granted by such Assignor to the Collateral Agent hereby in respect of
all the Collateral have been accomplished or shall be accomplished within ten
days of the Initial Borrowing Date (or, in the case of property acquired after
the Initial Borrowing Date, within ten days after the acquisition thereof) and
the security interest granted to the Collateral Agent pursuant to this Agreement
in and to all the Collateral constitutes or will constitute, upon satisfaction
of such filings, registrations and recordings, a
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perfected security interest therein superior and prior to the rights of all
other Persons therein (other than any such rights pursuant to Permitted Liens)
and subject to no other Liens (other than Permitted Liens) and is entitled to
all the rights, priorities and benefits afforded by the Uniform Commercial Code
or other relevant law as enacted in any relevant jurisdiction to perfected
security interests.
No Liens. Such Assignor is, and as to Collateral acquired by it from
time to time after the date hereof such Assignor will be, the owner of all
Collateral free from any Lien, security interest, encumbrance or other right,
title or interest of any Person (other than Permitted Liens), and such Assignor
shall defend the Collateral against all claims and demands of all Persons at any
time claiming the same or any interest therein (other than in connection with
Permitted Liens) adverse to the Collateral Agent.
2.2 Other Financing Statements. As of the date hereof, there is no
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any interest of any
kind in the Collateral (other than financing statements filed in respect of
Permitted Liens or otherwise approved by the Collateral Agent) and so long as
the Total Commitment has not been terminated or any Note remains unpaid or any
Letter of Credit remains outstanding or any of the Obligations remain unpaid or
any Interest Rate Protection Agreement remains in effect, such Assignor will not
execute or authorize to be filed in any public office any financing statement
(or similar statement or instrument of registration under the law of any
jurisdiction) or statements relating to the Collateral, except financing
statements filed or to be filed in respect of and covering the security
interests granted hereby by such Assignor or as otherwise permitted by the
Credit Agreement.
2.3 Chief Executive Office; Records. As of the date hereof, the
chief executive office of such Assignor is located at the address or addresses
indicated on Annex A hereto. Such Assignor will not move its chief executive
office except to such new location as such Assignor may establish in accordance
with the last sentence of this Section 2.4. The original records and books of
account of such Assignor evidencing all Receivables and Contract Rights and
Trade Secret Rights of such Assignor are, and will continue to be, kept at such
chief executive office and/or one or more of the locations shown on Annex A, or
at such new locations as such Assignor may establish in accordance with the last
sentence of this Section 2.4. All Receivables and Contract Rights and Trade
Secret Rights of such Assignor are, and will continue to be, maintained at, and
controlled and directed (including, without limitation, for general accounting
purposes) from, the office locations described above, or such new locations as
such Assignor may establish in accordance with the last sentence of this Section
2.4. Such Assignor shall not establish new locations for such chief executive
offices until (i) it shall have given to the Collateral Agent not less than 15
days' prior written notice (or such lesser notice as shall be acceptable to the
Collateral Agent) of its intention to do so, clearly describing such new
location and providing such other information in connection therewith as the
Collateral Agent may reasonably request, and (ii) with respect to such new
location, it shall have taken all action, reasonably satisfactory to the
Collateral Agent, to maintain the security interest of the Collateral Agent in
the Collateral intended to be granted hereby at all times fully perfected and in
full force and effect.
2.4 Location of Inventory and Equipment. All Inventory and Equipment
held on the date hereof by each Assignor is located at one of the locations
shown on Annex B attached hereto, is in transit between such locations, or is in
transit to customers. Each Assignor agrees
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that all Inventory and Equipment now held or subsequently acquired by it shall
be kept at (or shall be in transport to or from) any one of the locations shown
on Annex B hereto, such new location as such Assignor may establish in
accordance with the last sentence of this Section 2.5 or such other locations to
the extent such Assignor (and the Assignors taken as a whole) remain in
compliance with this Section 2.5. Each Assignor may establish a new location for
Inventory and Equipment only if (i) it shall have given to the Collateral Agent
not less than 15 days' prior written notice of its intention so to do, clearly
describing such new location and providing such other information in connection
therewith as the Collateral Agent may reasonably request, and (ii) with respect
to such new location, such Assignor shall have taken all action reasonably
satisfactory to the Collateral Agent to maintain the security interest of the
Collateral Agent in the Collateral intended to be granted hereby at all times
fully perfected and in full force and effect.
2.5 Trade Names; Change of Name. As of the date hereof, such
Assignor does not have or operate in any jurisdiction under, or in the preceding
5 year period has not had or has not operated in any jurisdiction under, any
trade names, fictitious names or other names (including, without limitation, any
names of divisions or operations) except its legal name and such other trade,
fictitious or other names as are listed on Annex C hereto. Such Assignor has
only operated under each name set forth in Annex C in the jurisdiction or
jurisdictions set forth opposite each such name on Annex C. Such Assignor shall
not change its legal name or assume or operate in any jurisdiction under any
trade, fictitious or other name except those names listed on Annex C hereto in
the jurisdictions listed with respect to such names and new names (including,
without limitation, any names of divisions or operations) and/or jurisdictions
established in accordance with the last sentence of this Section 2.6. Such
Assignor shall not assume or operate in any jurisdiction under any new trade,
fictitious or other name or operate under any existing name in any additional
jurisdiction until (i) it shall have given to the Collateral Agent not less than
15 days' prior written notice of its intention so to do, clearly describing such
new name and/or jurisdiction and, in the case of a new name, the jurisdictions
in which such new name shall be used and providing such other information in
connection therewith as the Collateral Agent may reasonably request, (ii) with
respect to such new name and/or new jurisdiction, it shall have taken all
action, reasonably satisfactory to the Collateral Agent, to maintain the
security interest of the Collateral Agent in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect, (iii)
at the request of the Collateral Agent, it shall have furnished an opinion of
counsel reasonably acceptable to the Collateral Agent as to the continued
perfection of the security interest granted hereby, which opinions shall be
deemed acceptable to the Collateral Agent if substantially similar to the
perfection opinions given in the legal opinions on the Initial Borrowing Date,
and (iv) the Collateral Agent shall have received evidence that all other
actions (including, without limitation, the payment of all filing fees and
taxes, if any, payable in connection with such filings) have been taken, in
order to perfect (and maintain the perfection and priority of) the first
priority security interest granted hereby.
2.6 Recourse. This Agreement is made with full recourse to such
Assignor and pursuant to and upon all the warranties, representations,
covenants, and agreements on the part of such Assignor contained herein, in the
Interest Rate Protection Agreements and otherwise in writing in connection
herewith or therewith.
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ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS
3.1 Additional Representations and Warranties. As of the time when
each of its Receivables arises, each Assignor shall be deemed to have
represented and warranted that such Receivable, and all material records, papers
and documents relating thereto (if any) are genuine and in all material respects
what they purport to be, and that all papers and documents (if any) relating
thereto (i) will be the only original writings evidencing and embodying such
obligation of the account debtor named therein (other than copies created for
general accounting purposes) and (ii) will, to the knowledge of such Assignor,
evidence true and valid obligations of the account debtor named therein.
3.2 Maintenance of Records. Each Assignor will keep and maintain at
its own cost and expense satisfactory and complete records of its Receivables
and Contracts, and such Assignor will make the same available to the Collateral
Agent for inspection, at such Assignor's own cost and expense, at any and all
reasonable times upon reasonable prior notice (or at any time upon Noticed Event
of Default) to such Assignor. If the Collateral Agent so directs, upon the
occurrence and during the continuance of an Event of Default, such Assignor
shall legend, in form and manner reasonably satisfactory to the Collateral
Agent, the Receivables and Contracts, as well as books, records and documents of
such Assignor evidencing or pertaining to such Receivables with an appropriate
reference to the fact that such Receivables and Contracts have been assigned to
the Collateral Agent and that the Collateral Agent has a security interest
therein.
3.3 Modification of Terms; etc. No Assignor shall rescind or cancel
any indebtedness evidenced by any Receivable or under any Contract, or modify
any term thereof or make any adjustment with respect thereto, or extend or renew
the same, or compromise or settle any material dispute, claim, suit or legal
proceeding relating thereto, or sell any Receivable or Contract, or interest
therein, in any manner which could reasonably be expected to adversely affect
the value thereof, without the prior written consent of the Collateral Agent,
except (i) as permitted by Section 3.4 hereof and (ii) in accordance with such
Assignor's reasonable business practices. Each Assignor will duly fulfill all
obligations on its part to be fulfilled under or in connection with all material
Receivables and Contracts and will do nothing to impair the rights of the
Collateral Agent in the Receivables or Contracts.
3.4 Collection. Each Assignor shall endeavor in accordance with
reasonable business practices to cause to be collected from the account debtor
named in each of its Receivables or obligor under any Contract, as and when due
(including, without limitation, amounts which are delinquent, such amounts to be
collected in accordance with generally accepted lawful collection procedures)
any and all amounts owing under or on account of such Receivable or Contract,
and apply forthwith upon receipt thereof all such amounts as are so collected to
the outstanding balance of such Receivable or under such Contract, except that,
so long as no Event of Default is then in existence in respect of which the
Collateral Agent has given notice that this exception is no longer applicable,
any Assignor may allow in the ordinary course of business as adjustments to
amounts owing under its Receivables and Contracts (i) an extension or renewal of
the time or times of payment, or settlement for less than the total unpaid
balance, which such Assignor finds appropriate in accordance with sound business
judgment and (ii) a refund or credit due as a result of returned or damaged
merchandise or improperly
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performed services. The reasonable costs and expenses (including, without
limitation, attorneys' fees) of collection, whether incurred by any Assignor or
the Collateral Agent, shall be borne by such Assignor.
3.5 Direction to Account Debtors; etc. Upon the occurrence and
during the continuance of an Event of Default, and if the Collateral Agent so
directs any Assignor, to the extent permitted by applicable law, such Assignor
agrees (x) to cause all payments on account of the Receivables and Contracts to
be made directly to the Cash Collateral Account, (y) that the Collateral Agent
may, at its option, directly notify the obligors with respect to any Receivables
and/or under any Contracts to make payments with respect thereto as provided in
preceding clause (x) and (z) that the Collateral Agent may enforce collection of
any Receivables or Contracts and may adjust, settle or compromise the amount of
payment thereof, in the same manner and to the same extent as the Assignor. The
Collateral Agent may apply any or all amounts then in, or thereafter deposited
in, the Cash Collateral Account in the manner provided in Section 7.4 of this
Agreement. The reasonable costs and expenses (including reasonable attorneys'
fees) of collection, whether incurred by any Assignor or the Collateral Agent,
shall be borne by such Assignor. The Collateral Agent shall deliver a copy of
each notice referred to in the preceding clause (y) to the relevant Assignor;
provided that, the failure of the Collateral Agent to so notify such Assignor
shall not affect the effectiveness of such notice or the other rights of the
Collateral Agent created by this Section 3.5.
3.6 Instruments. If any Assignor owns or acquires any Instrument,
such Assignor will within 10 Business Days notify the Collateral Agent thereof,
and upon request by the Collateral Agent promptly deliver such Instrument (other
than checks payable to any Assignor and processed in the ordinary course of
business) to the Collateral Agent appropriately endorsed to the order of the
Collateral Agent as further security hereunder.
3.7 Further Actions. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to its Receivables, Contracts, Instruments and other property or
rights covered by the security interest hereby granted, as the Collateral Agent
may reasonably require to give effect to the purposes of this Agreement.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1 Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner of the Patent and
Trademark Office registrations, and applications for registrations, of the Marks
listed in Annex D, Part I attached hereto and that Annex D, Part I lists all the
United States Patent and Trademark Office, or the equivalent office thereof in
any foreign country, registrations and applications for registrations, of the
Marks that such Assignor now owns or uses in connection with its business. Each
Assignor represents and warrants that except with respect to those licensed
marks set forth in Annex D, Part I, it owns, is licensed to use or otherwise has
the right to use all material Marks that it uses. Each Assignor further warrants
that it is aware of no third party claim that any aspect of such Assignor's
present or contemplated business operations infringes or will infringe any
material Mark. Except as set
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forth on Annex D, Part II, each Assignor represents and warrants that it is the
true and lawful owner of or otherwise has the right to use all U.S. trademark
registrations and applications listed in Annex D, Part I hereto and that said
registrations are valid, subsisting, have not been cancelled and that such
Assignor is not aware of any third-party claim that any of said registrations or
applications for registration with respect to a Mark is invalid or unenforceable
or is not aware that there is any reason that any of said registrations or
applications for registration with respect to a Mark is invalid or
unenforceable. Each Assignor hereby grants to the Collateral Agent an absolute
power of attorney to sign, upon the occurrence and during the continuance of a
Noticed Event of Default, any document which may be required by the United
States Patent and Trademark Office in order to effect an absolute assignment of
all right, title and interest in each Mark owned by an Assignor, and record the
same.
4.2 Licenses and Assignments. Subject to the provisions of Sections
4.4 and 4.5, each Assignor hereby agrees not to divest itself of any right under
a Mark other than in the ordinary course of business absent prior written
approval of the Collateral Agent.
4.3 Infringements. Each Assignor agrees, promptly upon learning
thereof, to notify the Collateral Agent in writing of the name and address of,
and to furnish such pertinent information that may be available with respect to,
any party who may be infringing or otherwise violating in any material respect
any of such Assignor's rights in and to any Mark material to the operation of
its business, or with respect to any party claiming that such Assignor's use of
any Mark material to the operation of its business violates in any material
respect any property right of that party. Each Assignor further agrees, to
prosecute diligently any Person infringing any Mark owned by such Assignor and
material to the operation of the business in a manner consistent with its past
practice and in accordance with reasonable business practices.
4.4 Preservation of Marks. Each Assignor agrees to use or license
the use of its Marks in interstate commerce during the time in which this
Agreement is in effect, sufficiently to preserve such Marks as trademarks or
service marks registered under the laws of the United States or the relevant
foreign jurisdiction; provided, that no Assignor shall be obligated to preserve
any Mark in the event such Assignor determines, in its reasonable business
judgment, that the preservation of such Mark is no longer necessary in the
conduct of its business.
4.5 Maintenance of Registration. Each Assignor shall, at its own
expense, diligently process all documents required to maintain trademark
registrations, including but not limited to affidavits of use and applications
for renewals of registration in the United States Patent and Trademark Office or
equivalent governmental agency in any foreign jurisdiction for all of its Marks
(excluding unregistered Marks), and shall pay all fees and disbursements in
connection therewith, and shall not abandon any such filing of affidavit of use
or any such application of renewal prior to the exhaustion of all administrative
and judicial remedies without prior written consent of the Collateral Agent;
provided, that no Assignor shall be obligated to maintain any Mark or prosecute
any such application for registration in the event that such Assignor
determines, in its reasonable business judgment, that such application is no
longer necessary in the conduct of its business.
4.6 Future Registered Marks. If any Mark registration issues
hereafter to any Assignor as a result of any application now or hereafter
pending before the United States Patent and Trademark Office or equivalent
governmental agency in any foreign jurisdiction, within
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thirty (30) days of receipt of such registration such Assignor shall deliver a
copy of such registration certificate, and a confirmatory grant of security in
such Mark to the Collateral Agent hereunder, the form of such confirmatory grant
to be substantially the same as the form hereof.
4.7 Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent may, by written notice to the relevant Assignor, take any
or all of the following actions: (i) declare the entire right, title and
interest of such Assignor in and to each of the Marks, together with all
trademark rights and rights of protection to the same, vested, in which event
such rights, title and interest shall immediately vest, in the Collateral Agent
for the benefit of the Secured Creditors pursuant to a trademark security
agreement in form and substance satisfactory to the Collateral Agent, executed
by such Assignor and filed, pursuant to which all of such Assignor's rights,
title and interest in and to the Marks are assigned to the Collateral Agent for
the benefit of the Secured Creditors; (ii) take and use or sell the Marks and
the goodwill of such Assignor's business symbolized by the Marks and the right
to carry on the business and use the assets of such Assignor in connection with
which the Marks have been used; and (iii) direct such Assignor to refrain, in
which event such Assignor shall refrain, from using the Marks in any manner
whatsoever, directly or indirectly, and, if requested by the Collateral Agent,
change such Assignor's corporate name to eliminate therefrom any use of any Mark
and execute such other and further documents that the Collateral Agent may
request to further confirm this and to transfer ownership of the Marks and
registrations and any pending trademark application in the United States Patent
and Trademark Office or any equivalent governmental agency or office in any
foreign jurisdiction to the Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING
TRADE SECRET RIGHTS, PATENTS AND COPYRIGHTS
5.1 Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner or licensee of all
rights in (i) all Trade Secret Rights, (ii) the Patents of such Assignor listed
in Annex E attached hereto and that said Patents constitute all the patents and
applications for patents that such Assignor now owns and (iii) the Copyrights of
such Assignor listed in Annex F attached hereto and that said Copyrights
constitute all the registered copyrights and applications for copyright
registrations that such Assignor now owns. Each Assignor further warrants that
it is aware of no third party claim that any aspect of such Assignor's present
or contemplated business operations infringes or will infringe any material
patent or any material copyright or that such Assignor has misappropriated any
material Trade Secret Rights.
5.2 Licenses and Assignments. Subject to the provisions of Sections
5.4 and 5.5, each Assignor hereby agrees not to divest itself of any right under
a Patent or Copyright other than in the ordinary course of business absent prior
written approval of the Collateral Agent.
5.3 Infringements. Each Assignor agrees, promptly upon learning
thereof, to furnish the Collateral Agent in writing with all pertinent
information available to such Assignor with respect to any infringement or other
violation of such Assignor's rights in any Patent or Copyright, in each case
material to its business, or with respect to any claim that the practice of any
Patent or the use of any Copyright, in each case material to its business,
violates in any
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material respect any property right of a third party or with respect to any
misappropriation of any Trade Secret Right material to its business or any claim
that the practice of any Trade Secret Right material to its business violates
any property right of a third party. To the extent consistent with its past
practice and in accordance with reasonable business practices, each Assignor
further agrees, to prosecute diligently any Person infringing any Patent or
Copyright owned by such Assignor or any Person misappropriating any Trade Secret
Right in each case if such patent, copyright or Trade Secret Right is material
to its business.
5.4 Maintenance of Patents or Copyrights. At its own expense, each
Assignor shall make timely payment of all post-issuance fees required to
maintain in force rights under each of its Patents and Copyrights; provided,
that no Assignor shall be obligated to maintain any Patent in the event such
Assignor determines, in its reasonable business judgment, that the maintenance
of such Patent is no longer necessary in the conduct of its business.
5.5 Prosecution of Patent or Copyright Application. At its own
expense, each Assignor shall diligently prosecute all applications for (i)
Patents of such Assignor listed on Annex E hereto and (ii) Copyrights listed on
Annex F hereto, and, in each case, shall not abandon any such application prior
to exhaustion of all administrative and judicial remedies, absent written
consent of the Collateral Agent, provided that no Assignor shall be obligated to
maintain any Patent or Copyright in the event such Assignor reasonably
determines it is no longer necessary in the conduct of its business.
5.6 Other Patents and Copyrights. Within thirty (30) days of the
acquisition or issuance of a Patent or Copyright registration, or of filing of
an application for a Patent or Copyright registration, the relevant Assignor
shall deliver to the Collateral Agent a copy of said Patent or Copyright
registration, as the case may be, with a confirmatory grant of security as to
such Patent or Copyright, as the case may be hereunder, the form of such
confirmatory grant to be substantially the same as the form hereof; provided,
that no Assignor shall be obligated to prosecute any application in the event
such Assignor determines, in its reasonable business judgment, that such
application is no longer necessary in the conduct of its business.
5.7 Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent may by written notice to the relevant Assignor take any or
all of the following actions: (i) declare the entire right, title and interest
of such Assignor in each of the Patents and Copyrights vested, in which event
such right, title and interest shall immediately vest in the Collateral Agent
for the benefit of the Secured Creditors, pursuant to a patent security
agreement or copyright security agreement, as the case may be, in form and
substance satisfactory to the Collateral Agent, executed by such Assignor and
filed on the date hereof, pursuant to which all of such Assignor's right, title,
and interest to such Patents and Copyrights are assigned to the Collateral Agent
for the benefit of the Secured Creditors; (ii) take and practice, use or sell
the Patents and Copyrights; (iii) direct such Assignor to refrain, in which
event such Assignor shall refrain, from practicing the Patents and using the
Copyrights directly or indirectly, and such Assignor shall execute such other
and further documents as the Collateral Agent may request further to confirm
this and to transfer ownership of the Patents and Copyrights to the Collateral
Agent for the benefit of the Secured Creditors.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
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6.1 Protection of Collateral Agent's Security. Each Assignor will at
all times keep its Inventory and Equipment insured in favor of the Collateral
Agent, at its own expense, to the extent required by the Credit Agreement;
copies of all policies or certificates with respect to such insurance (i) shall
be endorsed to the Collateral Agent's reasonable satisfaction for the benefit of
the Collateral Agent (including, without limitation, by naming the Collateral
Agent as additional insured or additional loss payee) and (ii) shall state that
such insurance policies shall not be cancelled or materially revised without at
least 30 days' (or at least 10 days' in the case of nonpayment of premium) prior
written notice thereof by the insurer to the Collateral Agent. If any Assignor
shall fail to insure such Inventory or Equipment to the extent required by the
Credit Agreement, or if any Assignor shall fail to so endorse copies of all
policies or certificates with respect thereto, the Collateral Agent shall have
the right (but shall be under no obligation), upon prior written notice to such
Assignor, to procure such insurance and such Assignor agrees to reimburse the
Collateral Agent for all reasonable costs and expenses of procuring such
insurance. Except as otherwise provided in the Credit Agreement, the Collateral
Agent shall apply any proceeds of such insurance required after an Event of
Default in accordance with Section 7.4 (it being understood that so long as no
Event of Default has occurred and is continuing, the Collateral Agent will
release any interest it has in the proceeds of any casualty insurance to the
Assignors for the repair or replacement of the asset damaged). Each Assignor
assumes all liability and responsibility in connection with the Collateral
acquired by it and the liability of such Assignor to pay its Obligations shall
in no way be affected or diminished by reason of the fact that such Collateral
may be lost, destroyed, stolen, damaged or for any reason whatsoever unavailable
to such Assignor.
6.2 Further Actions. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted, which the Collateral Agent
deems reasonably appropriate or advisable to perfect, preserve or protect its
security interest in the Collateral.
6.3 Financing Statements. Each Assignor agrees to execute and
deliver to the Collateral Agent such financing statements, in form acceptable to
the Collateral Agent, as the Collateral Agent may from time to time reasonably
request or as are reasonably necessary or desirable in the reasonable opinion of
the Collateral Agent to establish and maintain a valid, enforceable, first
priority perfected security interest in the Collateral (subject to the Permitted
Liens) as provided herein and the other rights and security contemplated hereby
all in accordance with the Uniform Commercial Code as enacted in any and all
relevant jurisdictions or any other relevant law. Each Assignor will pay any
applicable filing fees, recordation taxes and related expenses. Each Assignor
hereby authorizes the Collateral Agent to file any such financing statements
without the signature of such Assignor where permitted by law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
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7.1 Remedies; Obtaining the Collateral Upon Default. Each Assignor
agrees that, if a Noticed Event of Default shall have occurred and be
continuing, then and in every such case, subject to any mandatory requirements
of applicable law then in effect, the Collateral Agent, in addition to any
rights now or hereafter existing under applicable law, shall have all rights as
a secured creditor under the Uniform Commercial Code in all relevant
jurisdictions and may:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or
any other Person who then has possession of any part thereof with or
without notice or process of law, and for that purpose may enter upon such
Assignor's premises where any of the Collateral is located and remove the
same and use in connection with such removal any and all services,
supplies, aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument
or other obligation (including, without limitation, the Receivables and
the Contracts) constituting the Collateral to make any payment required by
the terms of such instrument or agreement directly to the Collateral
Agent;
(iii) withdraw all moneys, securities and other instruments in the
Cash Collateral Account for application to the Obligations in accordance
with Section 7.4 hereof;
(iv) sell, assign or otherwise liquidate, or direct such Assignor to
sell, assign or otherwise liquidate, any or all of the Collateral or any
part thereof in accordance with Section 7.2 hereof, and take possession of
the proceeds of any such sale or liquidation;
(v) take possession of the Collateral or any part thereof, by
directing such Assignor in writing to deliver the same to the Collateral
Agent at any place or places reasonably designated by the Collateral
Agent, in which event such Assignor shall at its own expense:
(A) forthwith cause the same to be moved to the place or
places so designated by the Collateral Agent and there delivered to
the Collateral Agent,
(B) store and keep any Collateral so delivered to the
Collateral Agent at such place or places pending further action by
the Collateral Agent as provided in Section 7.2, and
(C) while the Collateral shall be so stored and kept, provide
such guards and maintenance services as shall be necessary to
protect the same and to preserve and maintain them in good
condition; and
(vi) license or sublicense whether on an exclusive or nonexclusive
basis, any Marks, Patents or Copyrights included in the Collateral for
such term and on such conditions and in such manner as the Collateral
Agent shall in its sole judgment determine;
it being understood that such Assignor's obligation so to deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction,
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the Collateral Agent shall be entitled to a decree requiring specific
performance by such Assignor of said obligation. The Secured Creditors agree
that this Agreement may be enforced only by the action of the Administrative
Agent or the Collateral Agent, in each case acting upon the instructions of the
Required Banks (or, after the date on which all Credit Document Obligations have
been paid in full, the holders of at least the majority of the outstanding
Interest Rate Protection or Other Hedging Obligations, to the extent same remain
outstanding) and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Agreement or to realize upon
the security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Administrative Agent or the
Collateral Agent or the holders of at least a majority of the outstanding
Interest Rate Protection or Other Hedging Obligations, as the case maybe, for
the benefit of the Secured Creditors upon the terms of this Agreement.
7.2 Remedies; Disposition of the Collateral. Upon the occurrence and
continuance of a Noticed Event of Default, any Collateral repossessed by the
Collateral Agent under or pursuant to Section 7.1 and any other Collateral
whether or not so repossessed by the Collateral Agent, may be sold, assigned,
leased or otherwise disposed of under one or more contracts or as an entirety,
and without the necessity of gathering at the place of sale the property to be
sold, and in general in such manner, at such time or times, at such place or
places and on such terms as the Collateral Agent may, in compliance with any
mandatory requirements of applicable law, determine to be commercially
reasonable. Any of the Collateral may be sold, leased or otherwise disposed of,
in the condition in which the same existed when taken by the Collateral Agent or
after any overhaul or repair which the Collateral Agent shall determine to be
commercially reasonable. Any such disposition which shall be a private sale or
other private proceedings permitted by such requirements shall be made upon not
less than ten (10) days' written notice to the relevant Assignor specifying the
time at which such disposition is to be made and the intended sale price or
other consideration therefor, and shall be subject, for the ten (10) days after
the giving of such notice, to the right of the relevant Assignor or any nominee
of such Assignor to acquire the Collateral involved at a price or for such other
consideration at least equal to the intended sale price or other consideration
so specified. Any such disposition which shall be a public sale permitted by
such requirements shall be made upon not less than ten (10) days' written notice
to the relevant Assignor specifying the time and place of such sale and, in the
absence of applicable requirements of law, shall be by public auction (which
may, at the Collateral Agent's option, be subject to reserve), after publication
of notice of such auction not less than 10 days prior thereto in two newspapers
in general circulation in the City of New York. To the extent permitted by any
such requirement of law, the Collateral Agent on behalf of the Secured Creditors
(or certain of them) may bid for and become the purchaser (by bidding in the
Obligations or otherwise) of the Collateral or any item thereof, offered for
sale in accordance with this Section without accountability to the relevant
Assignor (except to the extent of surplus money received as provided in Section
7.4). If, under mandatory requirements of applicable law, the Collateral Agent
shall be required to make disposition of the Collateral within a period of time
which does not permit the giving of notice to the relevant Assignor as
hereinabove specified, the Collateral Agent need give such Assignor only such
notice of disposition as shall be reasonably practicable in view of such
mandatory requirements of applicable law.
7.3 Waiver of Claims. Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S
TAKING POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF
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ANY OF THE COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE
AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH SUCH
ASSIGNOR WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE
UNITED STATES OR OF ANY STATE, and such Assignor hereby further waives, to the
extent permitted by law:
(i) all damages occasioned by such taking of possession except any
damages which are the direct result of the Collateral Agent's gross
negligence or wilful misconduct;
(ii) all other requirements as to the time, place and terms of sale
or other requirements with respect to the enforcement of the Collateral
Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable law
in order to prevent or delay the enforcement of this Agreement or the
absolute sale of the Collateral or any portion thereof, and each Assignor,
for itself and all who may claim under it, insofar as it or they now or
hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral hereunder shall operate to divest all right, title, interest,
claim and demand, either at law or in equity, of the relevant Assignor therein
and thereto, and shall be a perpetual bar both at law and in equity against such
Assignor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from,
through and under such Assignor.
7.4 Application of Proceeds. (a) All moneys collected by the
Collateral Agent (or, to the extent the Pledge Agreement or the Mortgages
require proceeds of collateral thereunder to be applied in accordance with the
provisions of this Agreement, the Pledgee or Mortgagee thereunder) upon any sale
or other disposition of the Collateral hereunder, together with all other moneys
received by the Collateral Agent hereunder, shall be applied as follows:
(i) first, to the payment of all Obligations owing to the Collateral
Agent or Pledgee resulting from their acting as Collateral Agent or
Pledgee, respectively;
(ii) second, to the extent proceeds remain after the application
pursuant to preceding clause (i), an amount equal to the outstanding
Obligations to the Secured Creditors shall be paid to the Secured
Creditors as provided in Section 7.4(d) with each Secured Creditor
receiving an amount equal to its outstanding Obligations or, if the
proceeds are insufficient to pay in full all such Obligations, its Pro
Rata Share of the amount remaining to be distributed to be applied, with
respect to the Credit Document Obligations, firstly to the payment of
interest in respect of the unpaid principal amount of Loans outstanding,
secondly to the payment of principal of Loans outstanding, then to the
other Credit Document Obligations; and
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii) to the relevant Assignor
or, to the extent directed by such
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Assignor or a court of competent jurisdiction, to whomever may be lawfully
entitled to receive such surplus.
(b) For purposes of this Agreement, "Pro Rata Share" shall mean,
when calculating a Secured Creditor's portion of any distribution or amount, the
amount (expressed as a percentage) equal to a fraction the numerator of which is
the then outstanding amount of the relevant Obligations owed such Secured
Creditor and the denominator of which is the then outstanding amount of all
Obligations.
(c) All payments required to be made to the (i) Bank Creditors
hereunder shall be made to the Agent for the account of the respective Bank
Creditors and (ii) Interest Rate Creditors hereunder shall be made to the paying
agent under the applicable Interest Rate Protection Agreement or Other Hedging
Agreement or, in the case of Interest Rate Protection Agreements or Other
Hedging Agreements without a paying agent, directly to the applicable Other
Creditor.
(d) For purposes of applying payments received in accordance with
this Section 7.4, the Collateral Agent shall be entitled to rely upon (i) the
Administrative Agent for a determination (which the Administrative Agent agrees
to provide upon request to the Collateral Agent) of the outstanding Credit
Document Obligations and (ii) upon any Other Creditor for a determination (which
each Other Creditor agrees to provide upon request to the Collateral Agent) of
the outstanding Interest Rate Protection or Other Hedging Obligations owed to
such Other Creditor. Unless it has actual knowledge (including by way of written
notice from a Secured Creditor) to the contrary, the Administrative Agent under
the Credit Agreement, in furnishing information pursuant to the preceding
sentence, and the Collateral Agent, in acting hereunder, shall be entitled to
assume that (x) no Credit Document Obligations other than principal, interest
and regularly accruing fees are owing to any Bank Creditor and (y) no Interest
Rate Protection Agreements or Interest Rate Protection or Other Hedging
Obligations with respect thereto are in existence.
(e) It is understood that each Assignor shall remain liable to the
extent of any deficiency between (x) the amount of the Obligations for which it
is liable directly or as a Guarantor that are satisfied with proceeds of the
Collateral and (y) the aggregate outstanding amount of such Obligations.
7.5 Remedies Cumulative. Each and every right, power and remedy
hereby specifically given to the Collateral Agent shall be in addition to every
other right, power and remedy specifically given under this Agreement, any
Interest Rate Protection Agreement or Other Hedging Agreement or the other
Credit Documents or now or hereafter existing at law or in equity, or by statute
and each and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised from time to time or simultaneously and as
often and in such order as may be deemed expedient by the Collateral Agent. All
such rights, powers and remedies shall be cumulative and the exercise or the
beginning of exercise of one shall not be deemed a waiver of the right to
exercise of any other or others. No delay or omission of the Collateral Agent in
the exercise of any such right, power or remedy and no renewal or extension of
any of the Obligations shall impair any such right, power or remedy or shall be
construed to be a waiver of any Default or Event of Default or an acquiescence
therein. In the event that the Collateral Agent shall bring any suit to enforce
any of its rights hereunder and shall be entitled to
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judgment, then in such suit the Collateral Agent may recover expenses, including
attorneys' fees, and the amounts thereof shall be included in such judgment.
7.6 Discontinuance of Proceedings. In case the Collateral Agent
shall have instituted any proceeding to enforce any right, power or remedy under
this Agreement by foreclosure, sale, entry or otherwise, and such proceeding
shall have been discontinued or abandoned for any reason or shall have been
determined adversely to the Collateral Agent, then and in every such case the
relevant Assignor, the Collateral Agent and each holder of any of the
Obligations shall be restored to their former positions and rights hereunder
with respect to the Collateral subject to the security interest created under
this Agreement, and all rights, remedies and powers of the Collateral Agent
shall continue as if no such proceeding had been instituted (except to the
extent of a determination adverse to the Collateral Agent in such a proceeding).
ARTICLE VIII
INDEMNITY
8.1 Indemnity. (a) Each Assignor jointly and severally agrees to
indemnify, reimburse and hold the Collateral Agent, each Secured Creditor and
its and its affiliates' respective successors, permitted assigns, employees,
agents and servants (hereinafter in this Section 8.1 referred to individually as
"Indemnitee," and collectively as "Indemnitees") harmless from any and all
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
suits, judgments and any and all costs and expenses (including reasonable
attorneys' fees and expenses) (for the purposes of this Section 8.1 the
foregoing are collectively called "expenses") of whatsoever kind and nature
imposed on, asserted against or incurred by any of the Indemnitees in any way
relating to or arising out of this Agreement, any Interest Rate Protection
Agreement or Other Hedging Agreement, any other Credit Document or the documents
executed in connection herewith and therewith or in any other way connected with
the enforcement of any of the terms of, or the preservation of any rights
hereunder or thereunder, or in any way relating to or arising out of the
manufacture, ownership, ordering, purchase, delivery, control, acceptance,
lease, financing, possession, operation, condition, sale, return or other
disposition, or use of the Collateral (including, without limitation, latent or
other defects, whether or not discoverable), the violation of the laws of any
country, state or other governmental body or unit, any tort (including, without
limitation, claims arising or imposed under the doctrine of strict liability, or
for or on account of injury to or the death of any Person (including any
Indemnitee), or property damage), or contract claim; provided that no Indemnitee
shall be indemnified pursuant to this Section 8.1(a) for expenses, losses,
damages or liabilities to the extent caused by the gross negligence or wilful
misconduct of such Indemnitee. Each Assignor agrees that upon written notice by
any Indemnitee of the assertion of such a liability, obligation, loss, damage,
penalty, claim, demand, action, judgment or suit, such Assignor shall assume
full responsibility for the defense thereof. Each Indemnitee agrees to use its
reasonable efforts to promptly notify such Assignor of any such assertion of
which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a), each
Assignor agrees, jointly and severally, to pay, or reimburse the Collateral
Agent for (if the Collateral Agent shall have incurred fees, costs or expenses
because such Assignor shall have failed to comply with its obligations under
this Agreement or any Credit Document), any and all reasonable fees, costs and
expenses of whatever kind or nature incurred in connection with the creation,
preservation or protection of the Collateral Agent's Liens on, and security
interest in, the Collateral, including,
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without limitation, all fees and taxes in connection with the recording or
filing of instruments and documents in public offices, payment or discharge of
any taxes or Liens upon or in respect of the Collateral, premiums for insurance
with respect to the Collateral and all other reasonable fees, costs and expenses
in connection with protecting, maintaining or preserving the Collateral and the
Collateral Agent's interest therein, whether through judicial proceedings or
otherwise, or in defending or prosecuting any actions, suits or proceedings
arising out of or relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or (b)
hereof, each Assignor jointly and severally agrees to pay, indemnify and hold
each Indemnitee harmless from and against any loss, costs, damages and expenses
which such Indemnitee may suffer, expend or incur in consequence of or growing
out of any material misrepresentation by an Assignor in this Agreement, or in
any statement or writing contemplated by or made or delivered pursuant to or in
connection with this Agreement.
(d) If and to the extent that the obligations of any Assignor under
this Section 8.1 are unenforceable for any reason, each Assignor hereby agrees
to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
8.2 Indemnity Obligations Secured by Collateral; Survival. Any
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Assignor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment of all the
Notes issued under the Credit Agreement, the termination of all Interest Rate
Protection Agreements or Other Hedging Agreements and the payment of all of the
other Obligations and notwithstanding the discharge thereof.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified unless
the context otherwise requires. Such definitions shall be equally applicable to
the singular and plural forms of the terms defined.
"Administrative Agent" shall have the meaning provided in the first
WHEREAS clause of this Agreement.
"Agreement" shall mean this Security Agreement as the same may be
modified, supplemented or amended from time to time in accordance with its
terms.
"Assignor" shall have the meaning specified in the first paragraph
of this Agreement.
"Banks" shall have the meaning provided in the first WHEREAS clause
of this Agreement.
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"Bank Creditor" shall have the meaning provided in the first WHEREAS
clause of this Agreement.
"Borrower" shall have the meaning provided in the first WHEREAS
clause of this Agreement.
"Business Day" means any day excluding Saturday, Sunday and any day
which shall be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law to close.
"Cash Collateral Account" shall mean a non-interest bearing cash
collateral account maintained with, and in the sole dominion and control of, the
Collateral Agent for the benefit of the Secured Creditors.
"Chattel Paper" shall have the meaning assigned that term under the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Class" shall have the meaning provided in Section 10.2.
"Collateral" shall have the meaning provided in Section 1.1(a).
"Collateral Agent" shall have the meaning specified in the first
paragraph of this Agreement.
"Contract Rights" shall mean all rights of an Assignor (including,
without limitation, all rights to payment) under each Contract.
"Contracts" shall mean all contracts between an Assignor and one or
more additional parties (including, without limitation, any Interest Rate
Protection Agreement and related documents entered into in connection therewith)
to the extent the grant by an Assignor of a security interest pursuant to this
Agreement in its right, title and interest in any such contract is not
prohibited by such contract without the consent of any other party thereto or
would not give any other party to such contract the right to terminate its
obligations thereunder; provided, that the foregoing limitation shall not
affect, limit, restrict or impair the grant by an Assignor of a security
interest pursuant to this Agreement in any account or any money or other amounts
due or to become due under any such contract, agreement, instrument or
indenture.
"Copyrights" shall mean any United States or foreign copyright owned
by any Assignor now or hereafter, including any registration of any copyrights,
in the United States Copyright Office or the equivalent thereof in any foreign
country, as well as any application for a United States or foreign copyright
registration now or hereafter made with the United States Copyright Office or
the equivalent thereof in any foreign jurisdiction by any Assignor.
"Credit Agreement" shall have the meaning provided in the first
WHEREAS clause of this Agreement.
"Credit Document Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
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"Documents" shall have the meaning assigned that term under the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Equipment" shall mean any "equipment," as such term is defined in
the Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all machinery, equipment, furnishings, fixtures now
or hereafter owned by such Assignor and any and all additions, substitutions and
replacements of any of the foregoing, wherever located, together with all
attachments, components, parts, equipment and accessories installed thereon or
affixed thereto but excluding Equipment constituting vehicles and Equipment to
the extent it is subject to a Permitted Lien and the terms of the Indebtedness
securing such Permitted Liens prohibits assignment or granting of a security
interest in such Assignor's rights and obligations thereunder.
"Event of Default" shall mean any Event of Default under the Credit
Agreement or any payment default, after any applicable grace period, under any
Interest Rate Protection Agreement.
"General Intangibles" shall have the meaning assigned that term
under the Uniform Commercial Code as in effect on the date hereof in the State
of New York but excluding these General Intangibles to the extent the terms
thereof expressly prohibit the assignment of, or the granting of a security
interest in, such Assignor's rights and obligations thereunder.
"Goods" shall have the meaning assigned that term under the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Indemnitee" shall have the meaning provided in Section 8.1.
"Instrument" shall have the meaning assigned that term under the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Interest Rate Creditors" shall have the meaning provided in the
preamble to this Agreement.
"Interest Rate Protection or Other Hedging Obligations" shall have
the meaning provided in the definition of "Obligations" in this Article IX.
"Inventory" shall mean merchandise, inventory and goods, and all
additions, substitutions and replacements thereof, wherever located, together
with all goods, supplies, incidentals, packaging materials, labels, materials
and any other items used or usable in manufacturing, processing, packaging or
shipping same; in all stages of production -- from raw materials through
work-in-process to finished goods -- and all products and proceeds of whatever
sort and wherever located and any portion thereof which may be returned,
rejected, reclaimed or repossessed by the Collateral Agent from any Assignor's
customers, and shall specifically include all "inventory" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York, now or hereafter owned by any Assignor.
"Marks" shall mean all right, title and interest in and to any
United States or foreign trademarks, service marks and trade names now held or
hereafter acquired by any
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Assignor, including any registration or application for registration of any
trademarks and service marks now held or hereafter acquired by an Assignor,
which are registered in the United States Patent and Trademark Office or the
equivalent thereof in any State of the United States or in any foreign country,
as well as any unregistered marks used by any Assignor, and any trade dress
including logos, designs, company names, business names, fictitious business
names and other business identifiers used by any Assignor in the United States
or any foreign country.
"Noticed Event of Default" shall mean (i) an Event of Default with
respect to the Borrower under Section 9.05 of the Credit Agreement and (ii) any
other Event of Default in respect of which the Collateral Agent has given the
Borrower notice that such Event of Default constitutes a "Noticed Event of
Default."
"Obligations" shall mean (i) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations and indebtedness (including, without limitation, indemnities, fees
and interest thereon) of the Borrower and each Assignor owing to the Bank
Creditors, now existing or hereafter incurred under, arising out of or in
connection with any Credit Document and the due performance and compliance by
the Borrower and each Assignor with the terms of each such Credit Document,
including, without limitation, in the case of (x) Holdings, all obligations
under the Holdings Guaranty and (y) each Subsidiary Guarantor, all obligations
under the Subsidiary Guaranty (other than those in respect of Interest Rate
Protection Agreements and Other Hedging Agreements) (all such obligations and
indebtedness under this clause (i), except to the extent consisting of
obligations or indebtedness with respect to Interest Rate Protection Agreements,
being herein collectively called the "Credit Document Obligations"); (ii) the
full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all obligations and indebtedness (including,
without limitation, indemnities, fees and interest thereon) of the Borrower and
each Assignor owing to the Interest Rate Creditors now existing or hereafter
incurred under, arising out of or in connection with any Interest Rate
Protection Agreement or Other Hedging Agreement including, without limitation,
in the case of (x) Holdings, all obligations under the Holdings Guaranty and (y)
each Subsidiary Guarantor, all obligations under the Subsidiary Guaranty, in
each case in respect of Interest Rate Protection Agreements or Other Hedging
Agreements (all such obligations and indebtedness under this clause (ii) being
herein collectively called the "Interest Rate Protection or Other Hedging
Obligations"); (iii) any and all sums advanced by the Collateral Agent in order
to preserve the Collateral or preserve its security interest in the Collateral;
(iv) in the event of any proceeding for the collection or enforcement of any
indebtedness, obligations, or liabilities referred to in clauses (i), (ii) and
(iii) above, after an Event of Default shall have occurred and be continuing,
the reasonable expenses of re-taking, holding, preparing for sale or lease,
selling or otherwise disposing of or realizing on the Collateral, or of any
exercise by the Collateral Agent of its rights hereunder, together with
reasonable attorneys' fees and court costs; and (v) all amounts paid by any
Indemnitee as to which such Indemnitee has the right to reimbursement under
Section 8.1 of this Agreement.
"Patents" shall mean any United States or foreign patent to which
any Assignor now or hereafter has title and any divisions or continuations
thereof, as well as any application for a United States or foreign patent now or
hereafter made by such Assignor.
"Pledge Agreement" shall mean the Pledge Agreement, dated as of the
date hereof, among the Borrower, the other pledgors party thereto and the
Collateral Agent, as Pledgee.
-19-
"Pledgee" shall have the meaning provided in the Pledge Agreement.
"Proceeds" shall have the meaning assigned that term under the
Uniform Commercial Code as in effect in the State of New York on the date hereof
or under other relevant law and, in any event, shall include, but not be limited
to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to the Collateral Agent or an Assignor from time to time with respect to
any of the Collateral, (ii) any and all payments (in any form whatsoever) made
or due and payable to an Assignor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any person acting under
color of governmental authority) and (iii) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.
"Pro Rata Share" shall have the meaning provided in Section 7.4(b)
of this Agreement.
"Receivables" shall mean any "account" as such term is defined in
the Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all of such Assignor's rights to payment for goods
sold or leased or services performed by such Assignor, whether now in existence
or arising from time to time hereafter, including, without limitation, rights
evidenced by an account, note, contract, security agreement, chattel paper, or
other evidence of indebtedness or security, together with (a) all security
pledged, assigned, hypothecated or granted to or held by such Assignor to secure
the foregoing, (b) all of any Assignor's right, title and interest in and to any
goods or services, the sale of which gave rise thereto, (c) all guarantees,
endorsements and indemnifications on, or of, any of the foregoing, (d) all
powers of attorney for the execution of any evidence of indebtedness or security
or other writing in connection therewith, (e) all books, records, ledger cards,
and invoices relating thereto, (f) all evidences of the filing of financing
statements and other statements and the registration of other instruments in
connection therewith and amendments thereto, notices to other creditors or
secured parties, and certificates from filing or other registration officers,
(g) all credit information, reports and memoranda relating thereto and (h) all
other writings related in any way to the foregoing.
"Requisite Creditors" shall have the meaning provided in Section
10.2 of this Agreement.
"Secured Creditors" shall have the meaning provided in the second
WHEREAS clause of this Agreement.
"Interest Rate Protection Agreements" shall have the meaning
provided in the second WHEREAS clause of this Agreement.
"Trade Secret Rights" shall mean the rights of an Assignor in any
Trade Secret it holds.
"Trade Secrets" means any secretly held existing engineering and
other data, information, production procedures and other know-how relating to
the design, manufacture,
-20-
assembly, installation, use, operation, marketing, sale and servicing of any
products or business of an Assignor worldwide whether written or not written.
ARTICLE X
MISCELLANEOUS
10.1 Notices. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be deemed to have been duly given or made when delivered to the
party to which such notice, request, demand or other communication is required
or permitted to be given or made under this Agreement, addressed:
(i) if to any Assignor, at its address contained in the Credit
Agreement (for the Borrower) or the Subsidiary Guaranty (for the other
Assignors);
(ii) if to the Collateral Agent, at:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attn.: Patsy Hogan
Tel: (212) 250-5175
Fax: (212) 250-7218
(iii) if to any Bank, at such address as such Bank shall have
specified in the Credit Agreement;
(iv) if to any Other Creditor, at such address as such Other
Creditor shall have specified in writing to the Assignors and the
Collateral Agent;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
10.2 Waiver; Amendment. (a) None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by the Collateral Agent (with the consent of the
Required Banks or, to the extent required by Section 13.12 of the Credit
Agreement, all of the Banks) and each Assignor affected thereby (it being
understood that the addition or release of any Assignor hereunder shall not
constitute a change, waiver, modification or variance affecting any Assignor
other than the Borrower and the Assignor so added or released) provided that (i)
no such change, waiver, modification or variance shall be made to Section 7.4 or
this Section 10.2(a) without the consent of each Secured Creditor adversely
affected thereby, and (ii) any change, waiver, modification or variance
affecting the rights and benefits of a single Class of Secured Creditors (and
not all Secured Creditors in a like or similar manner) shall require the written
consent of the Requisite Creditors of such Class of Secured Creditors. For the
purpose of this Agreement, the term "Class" shall mean each class of Secured
Creditors, i.e., whether (x) the Bank Creditors as holders of the Credit
Document Obligations or (y) the Interest Rate Creditors as holders of the
Interest Rate Protection or Other Hedging Obligations. For the purpose of this
Agreement, the
-21-
term "Requisite Creditors" of any Class shall mean each of (x) with respect to
the Credit Document Obligations, the Required Banks and (y) with respect to the
Interest Rate Protection or Other Hedging Obligations, the holders of at least a
majority of all obligations outstanding from time to time under the Interest
Rate Protection Agreements and Other Hedging Agreements.
(b) No delay on the part of the Collateral Agent in exercising any
of its rights, remedies, powers and privileges hereunder or partial or single
exercise thereof, shall constitute a waiver thereof. No notice to or demand on
any Assignor shall constitute a waiver of any of the rights of the Collateral
Agent to any other or further action without notice or demand to the extent such
action is permitted to be taken by the Collateral Agent without notice or demand
under the terms of this Agreement.
10.3 Obligations Absolute. The obligations of each Assignor
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by, (a) any bankruptcy, insolvency, reorganization, composition,
arrangement, adjustment, readjustment, dissolution, liquidation or other like
proceeding relating to any Assignor or any Subsidiary of any Assignor, or any
action taken with respect to this Agreement by any trustee or receiver, or by
any court, in any such proceeding, whether or not such Assignor shall have
notice or knowledge of any of the foregoing; (b) any exercise or non-exercise,
or any waiver, consent, extension, or indulgence of, or other action or inaction
under or in respect of any such agreement or instrument or this Agreement (other
than a waiver, consent or extension with respect to this Agreement in accordance
with its terms) any right, remedy, power or privilege under or in respect of
this Agreement or any other Credit Document or any Interest Rate Protection
Agreement or Other Hedging Agreement except as specifically set forth in a
waiver granted pursuant to the restrictions of Section 10.2 hereof; or (c) any
renewal, extension, amendment or modification of, or addition or supplement to
or deletion from any other Credit Document or any Interest Rate Protection
Agreement or Other Hedging Agreement or any security for any of the Obligations
(other than this Agreement in accordance with its terms), or any other
instrument or agreement referred to therein, or any assignment or transfer of
any thereof; whether or not any Assignor shall have notice or knowledge of any
of the foregoing; (d) any furnishing of any additional security to the
Collateral Agent or its assignee or any acceptance thereof or any release of any
security by the Collateral Agent or its assignee; (e) any limitation on any
party's liability or obligations under any such instrument or agreement or any
invalidity or unenforceability, in whole or in part, of any such instrument or
agreement or any term thereof.. The rights and remedies of the Collateral Agent
herein provided are cumulative and not exclusive of any rights or remedies which
the Collateral Agent would otherwise have.
10.4 Successors and Assigns. This Agreement shall be binding upon
each Assignor and its successors and assigns and shall inure to the benefit of
the Collateral Agent and its successors and assigns. All agreements, statements,
representations and warranties made by such Assignor herein or in any
certificate or other instrument delivered by each Assignor or on its behalf
under this Agreement shall be considered to have been relied upon by the Secured
Creditors and shall survive the execution and delivery of this Agreement, the
other Credit Documents and the Interest Rate Protection Agreements and Other
Hedging Agreements regardless of any investigation made by the Secured Creditors
on their behalf.
10.5 Headings Descriptive. The headings of the several sections of
this Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement.
-22-
10.6 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.7 Governing Law. This Agreement and the rights and obligations of
the parties hereunder shall be construed in accordance with and governed by the
law of the State of New York.
10.8 Assignors' Duties. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Assignor shall remain
liable to perform all of the obligations, if any, assumed by it with respect to
the Collateral and the Collateral Agent shall not have any obligations or
liabilities with respect to any Collateral by reason of or arising out of this
Agreement, nor shall the Collateral Agent be required or obligated in any manner
to perform or fulfill any of the obligations of any Assignor under or with
respect to any Collateral.
10.9 Termination; Release. (a) After the termination of the Total
Commitment and all Interest Rate Protection Agreements and Other Hedging
Agreements, when no Note or Letter of Credit is outstanding and when all Loans
and other Obligations have been paid in full, this Agreement shall terminate
(provided that all indemnities set forth herein including, without limitation,
in Section 8.1 hereof shall survive such termination), and the Collateral Agent,
at the request and expense of the relevant Assignor, will execute and deliver to
such Assignor a proper instrument or instruments (including Uniform Commercial
Code termination statements on form UCC-3) acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver to
such Assignor (without recourse and without any representation or warranty) such
of the Collateral as may be in the possession of the Collateral Agent and as has
not theretofore been sold or otherwise applied or released pursuant to this
Agreement.
(b) So long as no payment default on any of the Obligations is in
existence or would exist after the application of proceeds as provided below,
the Collateral Agent shall, at the request of the relevant Assignor, release any
or all of the Collateral, provided that (x) such release is permitted by the
terms of the Credit Agreement (it being agreed for such purposes that a release
will be deemed "permitted by the terms of the Credit Agreement" if the proposed
transaction constitutes an exception to Section 8.02 of the Credit Agreement) or
otherwise has been approved in writing by the Required Banks or all of the
Banks, if so required under the Credit Agreement and (y) the proceeds of such
Collateral are applied as required pursuant to the Credit Agreement or any
consent or waiver with respect thereto.
(c) At any time that the relevant Assignor desires that the
Collateral Agent take any action to give effect to any release of Collateral
pursuant to the foregoing Section 10.9(b), it shall deliver to the Collateral
Agent a certificate signed by an authorized officer describing the Collateral to
be sold and the relevant provision of Section 8.02 of the Credit Agreement on
which it is relying to make such sale. In the event that any part of the
Collateral is released as provided in the preceding paragraph (b), the
Collateral Agent, at the request and expense of such Assignor, will duly release
such Collateral and assign, transfer and deliver to such Assignor or its
designee (without recourse and without any representation or warranty) such of
the Collateral as is then being (or has been) so sold and as may be in the
possession of the Collateral Agent and has not theretofore been released
pursuant to this Agreement. The Collateral Agent shall have no
-23-
liability whatsoever to any Secured Creditor as the result of any release of
Collateral by it as permitted by this Section 10.9. Upon any release of
Collateral pursuant to Section 10.9(a) or (b), none of the Secured Creditors
shall have any continuing right or interest in such Collateral, or the proceeds
thereof.
10.10 Collateral Agent. The Collateral Agent will hold in accordance
with this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed by the parties hereto and each
Secured Creditor, by accepting the benefits of this Agreement, acknowledges and
agrees that the obligations of the Collateral Agent as the holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement. The Collateral Agent shall act hereunder on the terms and conditions
set forth in Section 11 of the Credit Agreement.
10.11 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Collateral Agent.
10.12 Additional Assignors. It is understood and agreed that any
Subsidiary of the Borrower that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall become an
Assignor hereunder by executing a counterpart hereof and delivering the same to
the Collateral Agent.
* * *
-24-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
ADDRESS: CONSOLIDATED CONTAINER HOLDINGS
LLC
2515 McKinney Avenue
Suite 850, Lock Box 14 By: /s/ Steven M. Silver
Dallas, Texas 75201 -------------------------------
Name: Steven M. Silver
Telephone No.: (214) 303-3400 Title: Vice President
Facsimile No.: (214) 303-3499
Attention: Timothy Brasher
CONSOLIDATED CONTAINER COMPANY
2515 McKinney Avenue LLC
Suite 850, Lock Box 14
Dallas, Texas 75201 By: /s/ Steven M. Silver
-------------------------------
Name: Steven M. Silver
Title: Vice President
ADDRESS: REID PLASTICS GROUP LLC
2515 McKinney Avenue By: Consolidated Container Company
Suite 850, Lock Box 14 LLC, as its Member and Manager
Dallas, Texas 75201
By: Consolidated Container Holdings
Telephone No.: (214) 303-3400 LLC, as its Member and Manager
Facsimile No.: (214) 303-3499
Attention: Timothy Brasher By: /s/ Steven M. Silver
-------------------------------
Name: Steven M. Silver
Title: Vice President
-25-
ADDRESS: CONSOLIDATED CONTAINER CAPITAL, INC.
2515 McKinney Avenue
Suite 850, Lock Box 14 By: /s/ Steven M. Silver
Dallas, Texas 75201 -------------------------------
Name: Steven M. Silver
Telephone No.: (214) 303-3400 Title: Vice President
Facsimile No.: (214) 303-3499
Attention: Timothy Brasher
ADDRESS: PLASTIC CONTAINERS LLC
2515 McKinney Avenue By: Consolidated Container Company LLC
Suite 850, Lock Box 14
Dallas, Texas 75201 By: Consolidated Container Holdings
LLC, as its Sole Member and Manager
Telephone No.: (214) 303-3400
Facsimile No.: (214) 303-3499 By: /s/ Steven M. Silver
Attention: Timothy Brasher -------------------------------
Name: Steven M. Silver
Title: Vice President
ADDRESS: CONTINENTAL PLASTIC CONTAINERS LLC
2515 McKinney Avenue
Suite 850, Lock Box 14 By: Plastic Container LLC, as its Sole
Dallas, Texas 75201 Member and Manager
Telephone No.: (214) 303-3400 By: Consolidated Container Company LLC,
Facsimile No.: (214) 303-3499 as its Sole Member and Manager
Attention: Timothy Brasher
By: Consolidated Container Holdings LLC,
as its Sole Member and Manager
By: /s/ Steven M. Silver
-------------------------------
Name: Steven M. Silver
Title: Vice President
-26-
ADDRESS: CONTINENTAL CARIBBEAN CONTAINERS,
INC.
2515 McKinney Avenue
Suite 850, Lock Box 14 By: /s/ Steven M. Silver
Dallas, Texas 75201 -------------------------------
Name: Steven M. Silver
Title: Steven M. Silver
Telephone No.: (214) 303-3400
Facsimile No.: (214) 303-3499
Attention: Timothy Brasher
-27-
Acknowledged And Agreed:
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Patricia Hogan
----------------------------------
Name: Patricia Hogan
Title: Principal
-28-
ANNEX A
TO
SECURITY AGREEMENT
LIST OF CHIEF EXECUTIVE OFFICES
Consolidated Container Holdings LLC
2515 Mc Kinney Avenue
Suite 850
Dallas, Texas 75201
Consolidated Container Company LLC
2515 Mc Kinney Avenue
Suite 850
Dallas, Texas 75201
Consolidated Container Capital, Inc.
2515 Mc Kinney Avenue
Suite 850
Dallas, Texas 75201
Reid Plastics Group LLC
2515 Mc Kinney Avenue
Suite 850
Dallas, Texas 75201
Plastic Containers LLC
2515 Mc Kinney Avenue
Suite 850
Dallas, Texas 75201
Continental Plastic Containers LLC
2515 Mc Kinney Avenue
Suite 850
Dallas, Texas 75201
Continental Carribean Containers, Inc.
2515 Mc Kinney Avenue
Suite 850
Dallas, Texas 75201
-29-
ANNEX B
TO
SECURITY AGREEMENT
SCHEDULE OF EQUIPMENT AND INVENTORY LOCATIONS
A. REID:
Alabama
306 Industrial Park N, Demopolis (Marengo), Alabama 36732
701 East Jackson Street, P.O. Drawer 1247, Demopolis (Marengo), Alabama
36732
Arizona
4239 N. 39th Avenue, Phoenix (Maricopa), Arizona 85019
4245 N. 39th Avenue, Phoenix (Maricopa), Arizona 85019
California
75 W. Valpico Road, Tracy (San Joaquin), California 95376
211 N. Willow Avenue, City of Industry/La Puente (Los Angeles),
California 91746
1201 E. Cerritos Avenue, Anaheim, California 92805
7300 Bolsa Avenue, Westminster, California 92683
5772 Jurupa Street, Ontario, California 91761
1070 Samuelson Street, City of Industry (Los Angeles), California 91748
17851 E. Railroad Street, Industry, California 91748
30020 Ahern Street, Union City, California 94587 (actual address is
2931 Faber Street, Union City, California 94587)
21700 E. Copley Dr., Diamond Bar, California 91765
Connecticut
731 Main Street Building B2, Monroe, Connecticut 06468
Florida
4961 Distribution Drive, Tampa, Florida 33605
Illinois
7122 W. 62nd Street, Chicago, Illinois 60638 (actual address is 6155
So. Harlem Avenue, Chicago, Illinois 60638)
2
New Jersey
473 Mundet Place, Hillside, New Jersey 07205
New Mexico
800 20th Street NW, Albuquerque (Bernalillo), New Mexico 87104
Pennsylvania
1600-B Comet Drive, Lancaster, Pennsylvania 17601
Avenue B., Buncher Industrial District, Leetsdale, Pennsylvania
15056-1309
Texas
4525 Joseph Hardin Drive, Dallas, Texas 75236-1915
27815-A Highway Blvd., Katy, Texas 77494
Washington
6545 S. Glacier Place, Talkily, Washington 98188
4525 Fruit Valley Road, Vancouver (Clark), Washington 98660
GATE Warehouse No. 14, Port of Vancouver, Washington 98660
Canada
9200 Van Horn Way, Richmond, British Columbia, Canada V6X 1W3
1393 Border Street, Unit 8, Winnipeg, Manitoba, Canada R3H ON1
2679 Slough Street, Mississauga, Ontario L4T 1G2
Mexico
Av. Guillermo Gonzalez Camarena, No. 17, Parque Industrial Cuamatla,
Cuautitlan, Izealli, Estado de Mexico, C.P 54730
-2-
3
B. SUIZA:
Arkansas
1234 North 7th Street, W. Memphis, Arkansas, 72303
5111 Rogers Avenue, Fort Smith, Arkansas, 72903
California
5000 Fulton Dr., Fairfield (Solano), California, 94585
1217 E. St. Gertrude Pl., Santa Ana, (Orange), California, 92707
1216 Madera Way, P.O. Box 7843, Riverside, California, 92503
Connecticut
3 Watrous Street, E. Hampton, Connecticut, 06424
4 Market Circle, Windsor, Connecticut, 06095
90 Pleasant Street, New Britain, Connecticut, 06051
401 Merritt, Norwalk, Connecticut 06853
433 Park Street, New Britain, CT
731 Main Street, Building 2, Monroe, CT
Florida
4330 20th Street, Zephyrhills, Florida, 33540
4711 34th Street North, St. Petersburg, Florida, 33714
5800 N.W. 74th Avenue, Miami, Florida, 33166
5200 Region Court, Lakeland, Florida, 33815
5225 Region Court, Lakeland, Florida, 33815
Georgia
155 King Mill Road, McDounough, Georgia, 30253
400 Indeco Dr., Suite A, Atlanta, Georgia, 30336
Illinois
2355 Touhy Avenue, Elk Grove, Illinois, 60007
2375 Touhy Avenue, Elk Grove, Illinois, 60007
2425 Touhy Avenue, Elk Grove, Illinois, 60007
2727 E. Higgins Rd., Elk Grove, Illinois, 60007
1300 NW Avenue, W. Chicago, Illinois, 60185
1400 NW Avenue, W. Chicago, Illinois, 60185
1201 West Lincoln, P.O. Box 626, Caseyville, Illinois, 62232
-3-
4
Kansas
2600 E 4th P.O. Box 429, Hutchinson, Kansas, 67504-0429
11725 W. 85th Street, Lenexa, Kansas, 66214
Kentucky
6300 Strawberry Lane, Louisville (Jefferson), Kentucky, 40214
Louisiana
2410 Gordon Avenue, Monroe, Louisiana, 71202
303 Frontage Road, I-55, Kentwood, Louisiana, 70444
Massachusetts
1199 W. Central Street, Franklin, Massachusetts, 02038
626 Lynn Way, Lynn, Massachusetts, 01905
1 D'Angelo Drive, Marlborough, Massachusetts, 01752
1201 W. Central Street, Franklin, Massachusetts, 02038
Maryland
7100 E. Baltimore St., Baltimore, (Baltimore -Independent City),
Maryland, 21224
Maine
P.O. Box 576, (off Route 122), Poland Springs, Maine, 04274
Nebraska
8420 West Dodge Road, Omaha, Nebraska 68114
New Hampshire
New Hampshire Route 111, Hampstead (Rockingham), New Hampshire, 03841
New Jersey
Rt. 130, Cumberland Blvd., Burlington, New Jersey, 08016
26 Slater Drive, Elizabeth (Union), New Jersey, 07206
4 Pleasant Hill Road, Cranbury (Middlesex), New Jersey, 08512
170 Circle Drive North, Piscataway, New Jersey 08854
1402 Pleasant Hill, Monroe, NJ
-4-
5
New York
18 Champeney Terrace, Rochester Monroe, New York, 14605
504 3rd Ave. Extension, Rensselaer, New York, 12144
14 Hall Street, Batavia, New York, 14020
268 North Union Street, Rochester, New York 14605
200 Public Marketing Building, Rochester, New York 14609
North Carolina
2030 East Market Street, Greensboro, North Carolina, 27401
Ohio
95 W. Cresentville Rd., Springdale, Ohio, 45246
1917 Joyce Avenue, Columbus, Ohio, 43228
4015 Executive Park Drive, #226, Cincinnati, Ohio 45241
Mostelter & Kemper Roads, Cincinnati, Ohio 45241
435 Roush Road, Lima, Ohio 45801
Pennsylvania
405 Nestles Way, Breinigsville, Pennsylvania, 18031
P.O. Box 147, Kelton, Pennsylvania, 19346
6831 Ruppsville Road, Allentown, Pennsylvania, 18106
910 Seventh Avenue, Berwick (Columbia), Pennsylvania, 18603
15 Mineral Street, Oil City (Venango), Pennsylvania, 16301
15 Lightner Road, York, Pennsylvania, 17404
601 Seldon Avenue, Verona, Pennsylvania, 15147
Grove Street, South Croton Ave, P.O. Box 230, New Castle, Pennsylvania,
16103
1600-B Cloister Drive, Lancaster, Pennsylvania, 17601
Jennersville Industrial Building, Penn Township, Pennsylvania 15632
Texas
3405 Roy Orr Blvd., Grand Prairie, Texas, 75050
900 E Semond, P.O. Box 932, Conroe, Texas, 77305
6831 Silsbee Road, Houston, Texas, 77033
5651 Gateway Freeway, Ft. Worth, Texas, 76178
4201 Hwy 75 S.,Sherman, Texas, 75090
2515 Mc Kinney Avenue, Suite 850, Dallas, Texas, 75201
7198 Mykawa Street, Houston, Texas 77033
7300 Mykawa Street, Houston, Texas 77033
654 East North Belt, Houston, Texas 77060
2502 I-North, Woodlands, Texas 77380
-5-
6
Virginia
1505 Robinwood Lane, P.O. Box 4754, Richmond, Virginia, 23220
8258 Richford Road, Mechanicville, Virginia
West Virginia
2800 Congo Road, Newell, West Virginia, 26050
Puerto Rico
Avenida Parque Central 1000, Parque Industrial Bairoa,Caguas,
Puerto Rico, 00725
-6-
7
ANNEX C
TO
SECURITY AGREEMENT
SCHEDULE OF TRADE AND FICTITIOUS NAMES
1. REID:
Juice Tree
Crystal Clear
Fast Flow
Propak California
Propak California Company
Stewart Walker Plastics
Stewart Walker Company
Reid Plastics
2. Consolidated Container Company LLC:
Quality Containers
double r enterprises, a division of Franklin Plastics, Inc.
California Plastics
Contech Connecticut
Contech New Hampshire New Jersey Plastics, Inc.
Contech New Jersey North Carolina Plastics, Inc.
Florence Plastics Richmond Container, Inc.
Fort Worth Plastics Sherman Plastics, Inc.
Texas State Plastics Vanguard Manufacturing, Inc.
Gulf Coast Plastics
Miami Plastics
Monroe Plastics
Hartford Plastics
Kansas State Plastics
Ocean Park Plastics
West Central Plastics
New York Plastics
Double RR New Castle
Double RR Verona
Liquitane Batavia
Liquitane Rochester
Liquitane Berwick
Ohio State Container
Allentown Plastics
Atlanta Container, Inc.
Chester County Container Corporation
First Capital Plastics, Inc.
Franklin Plastics, Inc.
Illinois Plastics, Inc.
-7-
8
Kentwood Plastics, Inc.
Maine Plastics, Inc.
Marlborough Plastics, Inc.
Middlesex Plastics, Inc.
-8-
9
ANNEX D
TO
SECURITY AGREEMENT
SCHEDULE OF MARKS
REID PLASTICS GROUP LLC
REGISTERED TRADEMARKS
DOMESTIC
DOCKET REGISTERED REGISTERED TITLE EXPIRES
# # DATE ----- -------
------ ---------- ----------
135/58 943,092 09-19-72 VALVE AND DESIGN 09-19-92
151/83 1,121,793 07-10-79 FAST FLOW 07-10-99
151/84 1,110,051 12-26-78 FF 12-26-98
153/157 1,148,958 03-24-81 AQUALITE 03-24-2001
153/158 1,228,506 02-22-83 CRADLE-KRATE 02-22-2003
155/79 1,160,058 07-07-81 6-PAK 07-07-2001
155/80 1,160,057 07-07-81 SUPER SIX 07-07-2001
163/64 1,294,331 09-11-84 GO WITH THE FLOW 09-11-2004
163/105 1,292,890 09-04-84 CRADLE-KLIP 09-04-2004
163/106 1,336,692 05-21-85 SANI-SEAL
163/107 1,292,059 08-28-84 EZ-FAST FLOW
163/108 1,307,920 12-04-84 TRI-AIR
167/29 1,346,243 07-02-85 AQUATOTE 07-02-2005
167/030 1,336,693 05-21-85 TOP-CAP
175/134 1,579,954 01-30-90 VALVE (design only) 01-30-2000
221/016 1,669,487 12-24-91 CRYSTAL CLEAR
(Assigned to Reid 6-13-95)
TM9,541 10-26-90 CRYSTAL AND DESIGN
(Registered in NJ)
1,331,704 3-11-59 US "JUICE TREE" DESIGN Cancelled on
TRADEMARK 11/19/91
-9-
2
REID PLASTICS GROUP LLC
REGISTERED TRADEMARKS
FOREIGN
REGISTRATION REGISTRATION RENEWAL
DOCKET # APPLICANT COUNTRY MARK NO. DATE DATE
- -------- --------- ------- ---- --- ---- ----
153/157 Reid Plastics, Inc. Canada AQUALITE 392093 12-20-91 12-20-06
153/157 Reid Plastics, Inc. Colombia AQUALITE 206692 03-18-98 03-18-08
153/157 Reid Plastics, Inc. Great AQUALITE A142805 11-29-91 07-19-07
Britain
175/134 Reid Valve Co. Inc. Indonesia VALVE 245631 02-01-89 02-01-99
175/134 Reid Valve Co., Inc. Japan VALVE 2391900 03-31-92 03-31-02
175/134 Reid Valve Co., Inc. Malaysia VALVE
175/134 Reid Valve Co., Inc. Thailand VALVE 118001 08-10-88 10-06-97
175/134 Reid Valve Co., Inc. Turkey VALVE 102518 08-26-88 08-26-07
175/134 Reid Valve Co., Inc. Germany VALVE 1125040 07-19-88 08-31-07
175/134-1 Reid Valve Co., Inc. China P.R. VALVE 334392 12-29-88 12-29-98
175/134-1 Reid Valve Co., Inc. Mexico VALVE 357542 12-29-88
175/134-1 Reid Valve Co., Inc. Taiwan VALVE 398216 04-15-88 04-15-98
175/134-2 Reid Valve Co., Inc. China P.R. VALVE
175/134-2 Reid Valve Co., Inc. Mexico VALVE 368628 10-20-89
175/134-3 Reid Valve Co., Inc. Mexico VALVE 351826 01-25-89
175/134-4 Reid Valve Co., Inc. Mexico VALVE 352254 09-08-88
175/134-5 Reid Valve Co., Inc. Great VALVE 1319867 11-16-90
Britain
175/134-6 Reid Valve Co., Inc. Singapore VALVE 1497 03-23-90 03-31-05
221/016 Reid Plastics, Inc. Colombia CRYSTAL
CLEAR
-2-
3
JUICE TREE
REGISTERED TRADEMARKS
REGISTERED
REGISTERED # DATE TRADEMARK EXPIRES
- ------------ ---- --------- -------
-3-
PART II Infringement of Intellectual Property
Dean Foods Company On February 12, 1999, Dean Foods Company notified RPI of
an alleged trademark infringement caused by the
manufacture of bottles for Shamrock Foods Company. It
was the position of Dean Foods Company that Shamrock's
use of bottles produced by RPI infringes and dilutes
Dean's trade identity rights and that RPI is
contributing to Shamrock's violations of Dean's rights
by manufacturing the bottles. The letter was a
clarification that Dean's was not waiving any potential
claims against RPI for the volition of Dean's trademark
rights and that Dean's award of a new supply contract to
RPI should not be interpreted as a waiver of Dean's
rights to proceed against RPI as a contributory
infringer. Shamrock has offered to indemnify RPI from
damages in connection with Dean's claim. RPI has at this
time in its possession an indemnity agreement executed
by Shamrock Foods Company (Indemnity Agreement between
Shamrock Foods Company and RPI). Management is currently
evaluating whether to execute this agreement.
-4-
ANNEX E
TO
SECURITY AGREEMENT
SCHEDULE OF PATENTS AND PATENT APPLICATIONS
REID PLASTICS GROUP LLC
PATENTS AND APPLICATIONS
FOREIGN
PATENT # ISSUE DATE
OR OR FIRST
DOCKET# COUNTRY SERIAL # FILING DATE TITLE INVENTOR EXPIRES
- ------- ------- -------- ----------- ----- -------- -------
181/273 Canada 63522 06-20-89 Design for a Bottle Carl D. Frahm 06-20-99
195/224 Mexico 7346 10-27-94 Bottle with Handle Joseph B. Rokus et 08-20-08
al.
203/035 Mexico 7347 10-27-94 Bottle with Handle Joseph B. Rokus 08-20-08
203/036 Canada 75765 02-23-95 Bottle with Handle Joseph B. Rokus 02-23-05
203/036 Canada 75766 02-23-95 Bottle with Handle Joseph B. Rokus 02-23-05
203/036 Mexico 7345 10-27-94 Bottle with Handle Joseph B. Rokus 08-20-08
204/097 Canada 2153696 08-14-94 Bottle Valve Bernard Strong
Assembly
With Security Seal
204/097 China P.R. 94191161.6 04-03-97 Bottle Valve Bernard Strong 11-14-14
Assembly
With Security Seal
204/097 Mexico 952346 05-25-95 Bottle Valve Bernard Strong
Assembly
With Security Seal
205/281 Canada 75966 03-16-95 Bottle Phyllis A. Rokus 03-16-05
205/281 Mexico 8222 04-25-96 Bottle Phyllis A. Rokus 10-11-09
216/273 Canada 81115 06-27-97 Bottle Joseph B. Rokus 06-27-07
216/273 Mexico 9048 10-09-97 Bottle Joseph B. Rokus 04-19-11
221/094 Canada 83537 04-03-98 Bottle Joseph B. Rokus 04-03-08
221/094 Mexico 970322 03-25-97 Bottle Joseph B. Rokus
-1-
2
REID PLASTICS GROUP LLC
ISSUED PATENTS
PATENT ISSUE
OR OR
DOCKET SERIAL FILING FIRST
# # DATE TITLE INVENTOR EXPIRES
------ ------ ------ ----- -------- -------
135/051 3,802,595 04-09-74 Bottled Water Cradle Case Construction Carl E. Frahm Expired
Shirley E. Frahm 04-09-91
142/203 D-238,754 02-10-76 Design for Water Bottle of 5-Gallon Carl E. Frahm Expired
Capacity for Use in Water Dispenser 02-10-90
145/162 4,015,741 04-05-77 Collapsible Carrying Case Carl E. Frahm 04-05-94
145/255 3,974,863 08-17-76 Valved Water Container W/seal (Olla) Carl E. Frahm et al. 08-17-93
145/256 3,966,093 06-29-76 Valved Water Container W/seal (Olla) Carl E. Frahm et al. 06-29-93
146/131 D-243928 04-05-77 Design for Water Bottle of 5-gallon Carl E. Frahm et al. 04-05-91
Capacity for Use in Water Dispenser
146/133 D-241,841 10-12-76 Design for Valve for Use in Carl E. Frahm Expired
Water Dispensers Shirley E. Frahm 10-12-90
146/134 4,015,632 04-05-77 Valve Construction Carl E. Frahm et al. 04-05-94
148/188 4,029,209 06-14-77 Stackable Carrying Case Carl E. Frahm et al. 06-14-94
150/208 4,074,986 02-21-78 Valved Water Container W/seal (Olla) Carl E. Frahm 02-21-94
151/085 4,181,243 01-01-80 Device for Filtering Beverages Carl E. Frahm et al. 01-01-97
151/103 4,143,784 03-13-79 Water Bottle & its Storage Case Carl E. Frahm et al. 03-13-96
(Old#1) (Change to #8 (D-326,608)
156/003 D-262521 01-05-82 (Design) Water Bottle or Similar Article Carl E. Frahm et al. 01-05-96
157/297 D-262522 01-05-82 (Design) Water Bottle or Similar Article Carl E. Frahm 01-05-96
159/225 4,416,383 11-22-83 Closure and Sealing Device Machine Carl E. Frahm 11-22-2000
166/128 D-286219 10-14-86 (Design) Bottle Case Carl E. Frahm et al. 10-14-2000
171/284 D-296420 06-28-88 (Design) New, Original & Ornamental Carl E. Frahm et al. 06-28-2002
Design for a Bottle 2.5 Gallon
171/285 4,693,400 09-15-87 Extendable Nestable Dispensing Apparatus Carl E. Frahm et al. 09-15-2004
173/008 D-299,697 02-07-89 (Design) New, Original & Ornamental Carl E. Frahm 02-07-2003
Design for a Bottle
179/261 5,002,199 03-26-91 Stackable Bottle (6 Gallon) Carl E. Frahm et al. 03-06-2008
181/273 D-311329 10-16-90 (Design) 6-gallon Octagonal Bottle Carl E. Frahm 10-16-2004
183/061 D-326,051 05-12-92 (Design) for a Bottle (#5) Carl E. Frahm 05-12-2006
-2-
3
PATENT ISSUE
OR OR
DOCKET SERIAL FILING FIRST
# # DATE TITLE INVENTOR EXPIRES
------ ------ ------ ----- -------- -------
183/062 D-326,608 06-02-92 (Design) for a Bottle (#8) Carl E. Frahm 05-12-2006
191/296 D-304,999 12-12-89 Design for a Bottle Case Richard L. Platte, Sr. 12-12-2003
195/224 D-339,067 09-07-93 (Design) 5-gallon Bottle B. Joseph Rokus et al. 09-07-2007
w/Handle (Mex.&U.S.)
203/035 D- 02-14-95 Two Gallon Bottle B. Joseph Rokus 02-14-2009
355,367* w/Handle (Mex/U.S.) Squat
203/036 D- 08-08-95 Three Gallon Bottle B. Joseph Rokus 08-08-2009
361,039* w/Handle (Mex/U.S.)
Tall, Skinny (Same Diameter
as 5 Gallon)
205/281 D-361,720 03-16-95 Two Gallon Aqua Vend Bottle Phyllis A. Rokus 10-11-2009
04-25-96 Canada & 10-11-2009
08-29-95 Mexico Richard Rendon 10-11-2009
U.S.
5,133,469 07-28-92 Stackable Bottle Ron Mehta
216/273 D-374,824 10-22-96 2.5 Gallon Dispenser Pak Bottle B. Joseph Rokus et al. 10-22-2010
217/183 5,762,317 6-09-98 Child Resistant Valve Button Shirley R. Frahm 5-6-2016
&
Carl E. Frahm
221/094 D-401,859 12-01-98 Bottle (Grupo Seser) B. Joseph Rokus 9-26-2016
D-353,367 12-31-94 Male Connector for Surface Mounting Kiyoshi Sato 12-13-2011
4,181,143 1-1-80 Valve Assembly and Coupler Therefor Merton R. Fallon expired
D-325,608 4-21-92 Exercise Chair Don D. Anderson 4-21-2009
D-325,051 3-31-92 Guide for Carrying Out Word Games Ralph E. Dean 3-31-2009
3,926,322 12-16-75 Apparatus for Removing Containers from Billy Joe Scott
Packages
SN 09-06-94 Bottle Carrier Device
08/302,225
replaces
08/044,270
SN 03-15-94 Bottle Carrier Device (Design)
23/019,939
SN 11-03-93 Bottle Valve Assembly W/security Seal
08/151,725
- --------
* Canada combines Doc. #203/035 & 203/036 into one patent Doc. #203/036
-3-
4
PATENT ISSUE
OR OR
DOCKET SERIAL FILING FIRST
# # DATE TITLE INVENTOR EXPIRES
--- -- ---- ----- -------- -------
185/020 4,962,872 10-16-90 CONTAINER CLOSURE DEVICE- BERNARD 10/16/07
ROTARY VALVE STRONG
200/126 D360,362 03-15-94 BOTTLE CARRIER DEVICE (Design) BERNARD
STRONG
204/097 5,445,298 11-03-93 BOTTLE VALVE ASSEMBLY BERNARD
W/SECURITY SEAL STRONG
209/159 5,441,320 09-06-94 BOTTLE CARRIER DEVICE BERNARD
STRONG
213/097 5,570,818 11-05-96 VALVE ASSEMBLY W/SECURITY BERNARD
SEAL STRONG
4924770 5-15-90 PORTABLE, AUTOMATIC JUICE ASSIGNED TO Expired
EXTRACTION MACHINE JUICE TREE because of
failure to
pay
maintenance
fee
-4-
5
Claims of Infringement
Continental Plastic
Containers LLC Continental Plastic Containers LLC may be subject to a
renewed counterclaim by Owens Illinois, Inc. with
respect to Case 95C4670 in the U.S. District Court for
the Northern District of Illinois, in which Owens
Illinois alleged infringement of a composition patent,
owned by Owens Illinois and said to be infringed by the
composition of plastic bottles of Continental Plastic
Containers LLC Counsel to Owens Illinois has indicated
that it is interested in discussing settlement terms
with Suiza Packaging with respect to the claim. These
potential settlement talks follow the issuance of a
"Notice of Intent to Issue Reexamination Certificate" by
the U.S. Patent Office which withdrew the U.S. PTO's
previous rejections of the patent. Suiza Packaging has
been advised that a formal Certificate of Re-examination
may be issued in the near future.
-5-
ANNEX F
TO
SECURITY AGREEMENT
SCHEDULE OF COPYRIGHTS AND
COPYRIGHT APPLICATIONS
None
-6-
7
CONTINENTAL PLASTIC CONTAINERS LLC
ISSUED UNITED STATES PATENTS AND DESIGN APPLICATIONS
I. ISSUED UNITED STATES PATENTS
File No. Inventor Patent No. Title Issue Date
(1) C37 99 Roth 3,923,190 Plastic Containers Having 12/02/75
EXPIRED Improved Physical Properties
Fabricated from a Composite Billet
(2) C37-96 Szatkowski 3,943,212 Method for Sinter Molding Plastic 03/09/76
EXPIRED Articles
(3) C37-97 Hexel 3,944,124 Plastic Containers 03/16/76
EXPIRED
(4) C31 -16a Szatkowski 3,947,165 Apparatus for Making Tubular 03/30/76
EXPIRED Containers
(5) C37-18 Nutting 4,005,966 Blow Molding Machine 02/01/77
EXPIRED
(6) C37-95 Erlandson et al. 4,009,234 Method for High Speed Sinter 02/22/77
EXPIRED Molding
(7) C37-98 Jones 4,014,723 Composite Containers 03/29/77
EXPIRED
(8) C37-17 Hellmer 4,080,146 Segmented Blow Molds 03/21/78
EXPIRED
(9) C37-100 Boni 4,102,974 Polyolefin Containers Having 07/25/78
Improved Gas Barrier Properties
(10) C37-20 Cary 4,119,394 Apparatus for Forming an End 10/10/78
Finish on a Hollow Article
(11) C37-99a Roth 4,120,932 Method of Fabricating Plastic 10/17/78
Containers Having Reduced Gas
Permeability from a Composite
Billet
(12) C37-103 Vrcelj 4,122,147 Method of Making Multilayer 10/24/78
Containers
(13) C37-101 Gordon 4,150,747 Composite Can 04/24/79
(14)C37-102 Cornell 4,151,136 Acid Reactable Inorganic Mineral 04/24/79
Fillers Having Improved
Compatibility with Polyolefin
Resins
(15)C37-19 Kinsley 4,178,146 Mold Having Cutter Means 12/11/79
-7-
8
File No. Inventor Patent No. Title Issue Date
(16)C37-107 Miller 4,206,628 Press with Hydraulic Load 06/10/80
Transferring Mechanism
(17) C37-105 Miller 4,210,013 Press with Load Transfer 07/01/80
Mechanism
(18) C37-106 Cornell 4,210,573 Polyilefin Containers Having 07/01/80
Improved Gas Barrier Properties
(19) C37-108 Miller 4,212,185 Hydraulic Press System 07/15/80
(20) C37-109 Miller 4,258,562 Press Structure Having Shiftable 03/31/81
Stop
(21) C37-104 Beaver Des. 258,802 Bottle or Similar Article 04/07/81
EXPIRED
(22) C37-24 Hellmer 4,355,967 Label Applying Device 10/26/82
(23) C37-23 Hellmer 4,359,314 Transfer Device for Applying 11/16/82
Labels to Blow Molds
(24) C37 26 Hellmer et al. 4,397,625 In-Mold Labeller 08/09/83
(25) C37-111 Hekal 4,407,429 Cap for and in Combination with a 10/04/83
Container
(26) C37-110 Turner 4,443,401 Apparatus for and Method of 04/17/84
Thermoforming Plastic Cans
(27) C37-47 Bartimes et al. 4,479,644 In-Mold Labeller 10/30/84
(28) C37-112 Ross 4,498,854 In-Mod Labeller-Dual Parison 02/12/85
(29) C37-28 Szajna 4,502,607 Bulge Resistant Bottle Bottom 03/05/85
(30) C37-45 Walter 4,516,684 Resealable Closure 05/14/85
(31) C37 113 Hekal 4,536,425 Method for Preparing Polar 08/20/85
Thermoplastic Resin Compositions
Having Improved Gas Barrier
Properties
(32) C37-42 Blomquist et al. 4,540,460 Slew control Mounting Device for 09/10/85
Label Magazine
(33) C37-44 Szajna et al. 4,565,516 Mold for Large Capacity 01/21/86
Containers
(34) C37-46 Szajna 4,566,509 Closure Unit Including Measuring 01/28/86
Cup
(35) C37-35 Beaver et al. Des. 282,433 Container Body for Liquids and the 02/04/86
Like
-8-
9
File No. Inventor Patent No. Title Issue Date
(36) C37-30 Beaver et al. Des. 282,631 Container Body for Liquids and 02/18/86
the Like
(37) C37-31 Beaver et al. Des. 282,632 Container Body for Liquids and the 02/18/86
Like
(38) C37-38 Beaver et al. Des. 282,633 Container Body for Liquids and the 02/18/86
Like
(39) C37-36 Beaver et al. Des. 282,634 Container Body for Liquids and the 02/18/86
Like
(40) C37-39 Beaver et al. Des. 282,635 Container Body for Liquids and the 02/18/86
Like
(41) C37-40 Beaver et al. Des. 282,636 Container Body for Liquids and the 02/18/86
Like
(42) C37-41 Beaver et al. Des. 282,637 Container Body for Liquids and the 02/18/86
Like
(43) C37-32 Beaver et al. Des. 282,638 Container Body for Liquids and 02/18/86
the Like
(44) C37-33 Beaver et al. Des. 282,639 Container Body for Liquids and 02/18/86
the Like
(45) C37-34 Beaver et al. Des. 282,640 Container Body for Liquids and 02/18/86
the Like
(46) C37-37 Beaver et al. Des. 282,641 Container Body for Liquids and 02/18/86
the Like
(47) C37-114 Hellmer et al. 4,605,368 Swivel Hose Connection and 08/12/86
Adjustable Mounting of Support
Member for Cam Follower and
Swivels
(48) C37-51 Hellmer 4,626,190 Retention Mechanism for a Split 12/02/86
Mold Carrier and Cam for
Actuating the Same
(49) C37-27 Bartimes et al. 4,637,600 Label Separator 01/20/87
(50) C37-22 Windstrup et al. 4,650,412 Blow Molding Machine 03/17/87
(51) C37-48 Conrad Des. 290,228 Bottle or the Like 06/09/87
(52) C37-49 Conrad Des. 293,210 Bottle or the Like 12/15/87
(53) C37-65 Dezio et al 4,756,857 Process of Applying a Top Element 07/12/88
to a Container Utilizing a Hot Melt
Material
-9-
10
File No. Inventor Patent No. Title Issue Date
(54) C37-55 Beaver Des. 301,306 Container Body for Liquids and the 05/30/89
Like
(55) C37-53 Beaver Des. 303,628 Container Body for Liquids and the 09/26/89
Like
(56) C37-63 Guss et al. 4,863,071 Pump and Container Assembly 10/05/89
(57) C37-43 Blomquist 4,878,823 Apparatus for Applying a Label for 11/07/89
an Open Mold Half
(58) C37-56 Beaver Des. 304,423 Container Body for Liquids or the 11/07/89
Like
(59) C37-115 Beaver Des. 309,100 Container Body for Liquids or the 07/10/90
Like
(60) C37-64 Chemler Des. 309,259 Container Body for Liquids or the 07/17/90
Like
(61) C37-67 Magly 4,948,001 Interrupted Threads on a Plastic 08/14/90
Bottle Finish
(62) C37-60 Colby 4,986,466 Box and Blank for Forming Same 01/22/91
(63) C37-59 Weissenstein et al. 4,990,382 Plastic Container with Glass-Like 02/05/91
Appearance, Parison for and
Method of Making Same
(64) C37-52 Hellmer et al. 4,991,695 Hydraulic Brake System for a 02/12/91
Large Rotating Mass
(65) C37-75 Bloomquist 5,192,007 Valve Assembly for Inverted 03/09/93
Dispensing from a Container With
a Pump
(66) C37-74 Bartimes et al. 5,198,247 In-Mold Labellers for a Dual 03/30/93
Cavity Mold
(67) C37-70 Bartimes et al. 5,215,694 Method of Forming a Container 06/01/93
with Dripless Spout
(68) C37-72 Bartimes 5,246,146 Pump Replacement Assembly 09/21/93
(69) C37-70a Bartimes et al. 5,330,083 Container with Dripless Spout and 07/19/94
Method of Forming Same
(70) C37-93 Beaver et al. Des. 352,905 Juice Container 11/29/94
(71) C37-94 Beaver Des. 353,542 Exterior Surface of a Sidewall for a 12/20/94
Container
(72) C37-116 Foss et al. 5,392,950 Plastic Container with a 02/28/95
Completely Sealed Handle
-10-
11
File No. Inventor Patent No. Title Issue Date
(73) C37-131 Beaver Des. 357,631 Exterior Surface of a Container 04/25/95
Sidewall
(74) C37-119 Beaver Des. 358,992 Exterior Surface of a Container 06/06/95
Sidewall
(75) C37-132 Beaver Des. 359,689 Exterior Surface of a Container 06/27/95
Sidewall
(76) C37-92 Beaver Des. 370,850 Exterior Surface of a Container 06/18/96
Sidewall
(77) C37-140 Beaver Des. 376,100 Tube Dispenser 12/03/96
(78) C37-146 Beaver Des. 378,274 Partial Exterior Surface of a 03/04/97
Container Sidewall
(79) C37-150 Beaver Des. 379,308 Exterior Surface of a Container 05/20/97
Sidewall
(80) C37-160 Beaver Des. 379,590 Exterior Surface of a Container 06/03/97
Sidewall
(81) C37-149 Beaver Des. 382,204 Exterior Surface of a Container 08/12/97
Sidewall
(82) C37-151 Beaver Des. 383,391 Exterior Surface of a Container 09/09/97
Sidewall
(83) C37-141 Beaver Des. 386,679 Container 11/25/97
(84) C37-129 Fehn 5,693,283 Container with Recycled Plastic 12/02/97
(85) C37-151a Beaver Des. 387,669 Exterior Surface of a Container 12/16/97
Sidewall
(86) C37-125 Beaver 5,702,033 Adjoined Dual Tube Dispenser 12/30/97
(87) C37-157 Fehn 5,814,383 Containers with Improved Crease- 09/29/98
Crack Resistance
(88) Beck 4,550,043 Preform with internal barrier and 10/29/85
internal layer of high thermal
stability and products made from
the same
II. UNITED STATES DESIGN PATENT APPLICATIONS
-11-
12
File No. Inventor Patent No. Title Issue Date
(89) C37-144 Fehn Partial Exterior Surface of a 12/21/95
Container Sidewall
(90) C37-154 Beaver Exterior Surface of a Container 12/21/95
Sidewall
o Lease and License Agreement by and between CAP SNAP CO., a
California corporation and Franklin Plastics, Inc., dated September
24, 1996.
o License Agreement by and between CPCI and Toyo Saken Kaisha dated
March 1, 1995.
o Rostan Acquisition Corp. holds U.S. Patent Number Des. 304,906
regarding a 24-oz. syrup container filed 10/24/86, effective for a
term of 14 years.
-12-
13
Agreement Regarding Securities, Limited Liability
Company Interests and Partnership Interests
AGREEMENT (as amended, modified or supplemented from time to time, this
"Agreement"), dated as of July 1, 1999, among each of the undersigned pledgers
(each a "Pledgor" and, collectively, the "Pledgors"), Bankers Trust Company, not
in its individual capacity but solely as Collateral Agent (the "Pledgee"), and
Consolidated Container Company LLC, as the issuer of the Uncertificated
Securities, Limited Liability Company Interests and/or Partnership Interests
(each as defined below) (the "Issuer").
W I T N E S S E T H:
WHEREAS, each Pledgor and the Pledgee are entering into Pledge Agreement,
dated as of July 1, 1999 (as amended, amended and restated, modified or
supplemented from time to time, the "Pledge Agreement"), under which, among
other things, in order to secure the payment of the Obligations (as defined in
the Pledge Agreement), each Pledgor will pledge to the Pledgee for the benefit
of the Secured Creditors (as defined in the Pledge Agreement), and grant a
security interest in favor of the Pledgee for the benefit of the Secured
Creditors in, all of the right, title and interest of such Pledgor in and to any
and all (1) Uncertificated securities" (as defined in Section 8-102(a)(18) of
the Uniform Commercial Code, as adopted in the State of New York)
("Uncertificated Securities"), (2) Partnership Interests (as defined in the
Pledge Agreement) and (3) Limited Liability Company Interests (as defined in the
Pledge Agreement), in each case issued from time to time by the Issuer, whether
now existing or hereafter from time to time acquired by such Pledgor (with all
of such Uncertificated Securities, Partnership Interests and Limited Liability
Company Interests being herein collectively called the "Issuer Pledged
Interests"); and
WHEREAS, each Pledgor desires the Issuer to enter into this Agreement in
order to perfect the security interest of the Pledgee under the Pledge Agreement
in the Issuer Pledged Interests, to vest in the Pledgee control of the Issuer
Pledge Interests and to provide for the rights of the parties under this
Agreement;
NOW THEREFORE, in consideration of the premises and the mutual promises
and agreements contained herein and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Each Pledgor hereby irrevocably authorizes and directs the Issuer, and
the Issuer hereby agrees, to comply with any and all instructions and orders
originated by the Pledgee (and its successors and assigns) regarding any and all
of the Issuer Pledged Interests without the further consent by the registered
owner (including the respective Pledgor), and not to comply with any
instructions or orders regarding any or all of the Issuer Pledged Interests
originated by
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any person or entity other than the Pledgee (and its successors and assigns) or
a court of competent jurisdiction.
2. The Issuer hereby certifies that (it) no notice of any security
interest, lien or other encumbrance or claim affecting the Issuer Pledged
Interests (other than the security interest of the Pledgee) has been received by
it, and (ii) the security interest of the Pledgee in the Issuer Pledged
Interests has been registered in the books and records of the Issuer.
3. The Issuer hereby represents and warrants that (i) the pledge by the
Pledgors of, and the granting by the Pledgors of a security interest in, the
Issuer Pledged Interests to the Pledgee, for the benefit of the Secured
Creditors, does not violate the charter, by-laws, partnership agreement,
membership agreement or any other agreement governing the Issuer or the Issuer
Pledged Interests, and (ii) if the Issuer is a corporation, the Issuer Pledged
Interests are fully paid and nonassessable.
4. All notices, statements of accounts, reports, prospectuses, financial
statements and other communications to be sent to any Pledgor by the Issuer in
respect of the Issuer will also be sent to the Pledgee at the following address:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attention Patsy Hogan
Tel: (212) 250-5175
Fax: (212) 250-7218
5. Except as expressly provided otherwise in Section 4, all notices,
instructions, orders and communications hereunder shall be sent or delivered by
mail, telex, telecopy or overnight courier service and all such notices and
communications shall, when mailed, telexed, telecopied or sent by overnight
courier, be effective when deposited in the mails or delivered to the overnight
courier, prepaid and properly addressed for delivery on such or the next
Business Day, or sent by telex or telecopier, except that notices and
communications to the Pledgee shall not be effective until received by the
Pledgee. All notices and other communications shall be in writing and addressed
as follows:
(a) if to any Pledgor, at:
Consolidated Container Company, LLC
2515 McKinney Avenue
Suite 850, Lock Box 14
Dallas, Texas 75201
Attention: Timothy Brasher
Telephone No.: (214) 303-3400
Telecopier No.: (214) 303-3499
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(b) if to the Pledgee, at:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attention: Patsy Hogan
Tel: (212) 250-5175
Fax: (212) 250-7218
(c) if to the Issuer, at:
2515 McKinney Avenue
Suite 850, Lock Box 14
Dallas, Texas 75201
Attention: Timothy Brasher
Telephone No.: (214) 303-3400
Telecopier No.: (214) 303-3499
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder. As used in this
Section 6, "Business Day" means any day other than a Saturday, Sunday, or other
day on which banks in New York are authorized to remain closed.
6. This Agreement shall be binding upon the successors and assigns of each
Pledgor and the Issuer and shall inure to the benefit of and be enforceable by
the Pledgee and its successors and assigns. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which
shall constitute one instrument. In the event that any provision of this
Agreement shall prove to be invalid or unenforceable, such provision shall be
deemed to be severable from the other provisions of this Agreement which shall
remain binding on all parties hereto. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
except in writing signed by the Pledgee, the Issuer and any Pledgor which at
such time owns any Issuer Pledged Interests.
7. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
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IN WITNESS WHEREOF, each Pledgor, the Pledgee and the Issuer have
caused this Agreement to be executed by their duly elected oficers duly
authorized as of the date first above written.
ADDRESS: CONSOLIDATED CONTAINER COMPANY
LLC
2515 McKinney Avenue
Suite 850, Lock Box 14
Dallas, Texas 75201 By:
------------------------------------
Name:
Telephone No.: (214) 303-3400 Title:
Facsimile No.: (214) 303-3499
Attention: Timoty Brasher
2515 McKinney Avenue By: Consolidated Container Holdings LLC,
Suite 850, Lock Box 14 as its Sole Member and Manager
Dallas, Texas 75201
Telephone No.: (214) 303-3400 By:
Facsimile No.: (214) 303-3499 ------------------------------------
Attention: Timothy Brasher Name:
Title:
ADDRESS: REID PLASTICS GROUP LLC
2515 McKinney Avenue By: Consolidated Container Company LLC,
Suite 850, Lock Box 14 as its Sole Member and Manager
Dallas, Texas 75201
By: Consolidated Container Holdings LLC,
Telephone No.: (214) 303-3400 as its Sole Member and Manager
Facsimile No.: (214) 303-3499
Attention: Timothy Brasher
By:
-------------------------------------
Name:
Title:
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ADDRESS: CONSOLIDATED CONTAINER CAPITAL,
INC.
2515 McKinney Avenue
Suite 850, Lock Box 14
Dallas, Texas 75201 By:
------------------------------------
Name:
Telephone No.: (214) 303-3400 Title:
Facsimile No.: (214) 303-3499
Attention: Timoty Brasher
ADDRESS: PLASTIC CONTAINERS LLC
2515 McKinney Avenue By: Consolidated Container Company LLC,
Suite 850, Lock Box 14 as its Sole Member and Manager
Dallas, Texas 75201
By: Consolidated Container Holdings LLC,
as its Sole Member and Manager
Telephone No.: (214) 303-3400 By:
Facsimile No.: (214) 303-3499 ------------------------------------
Attention: Timothy Brasher Name:
Title:
ADDRESS: CONTINENTAL PLASTIC CONTAINERS
LLC
2515 McKinney Avenue
Suite 850, Lock Box 14 By: Plastic Containers LLC,
Dallas, Texas 75201 as its Sole Member and Manager
Telephone No.: (214) 303-3400 By: Consolidated Container Company LLC,
Facsimile No.: (214) 303-3499 as its Sole Member and Manager
Attention: Timothy Brasher
By: Consolidated Container Company LLC,
as its Sole Member and Manager
By:
-------------------------------------
Name:
Title:
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ADDRESS: CONSOLIDATED CARIBBEAN
CONTAINERS, INC.
2515 McKinney Avenue
Suite 850, Lock Box 14
Dallas, Texas 75201
By:
Telephone No.: (214) 303-3400 ------------------------------------
Facsimile No.: (214) 303-3499 Name:
Attention: Timothy Brasher Title:
ADDRESS: CONSOLIDATED CONTAINER COMPANY LLC,
as Issuer
2515 McKinney Avenue
Suite 850, Lock Box 14 By: Consolidated Container Company LLC,
Dallas, Texas 75201 as its Sole Member and Manager
Telephone No.: (214) 303-3400
Facsimile No.: (214) 303-3499 By:
Attention: Timothy Brasher -------------------------------------
Name:
Title:
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BANKERS TRUST COMPANY, not in
its individual capacity but solely as
Collateral Agent and Pledgee
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
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25
ANNEX G
TO
SECURITY AGREEMENT
ASSIGNMENT OF SECURITY INTEREST IN UNITED STATES
TRADEMARKS
FOR GOOD AND VALUABLE CONSIDERATION, the sufficiency and receipt of which
are hereby acknowledged, [_________________], a [State] [corporation/limited
liability company] (the"Assignor") with principal offices at , hereby assigns
and grants to BANKERS TRUST COMPANY, as Collateral Agent, with principal offices
at 130 Liberty Street, New York, New York 10006 (the "Assignee"), a security
interest in (i) all of Assignor's right, title and interest in and to Assignor's
trademarks, trademark registrations, and trademark applications more
particularly set forth on Schedule A attached hereto (the "Marks"), and all
renewals thereof, together with (ii) all Proceeds (as such term is defined in
the Security Agreement referred to below) of the Marks, (iii) the goodwill of
the business(es) with which the Marks are associated and (iv) all causes of
action arising prior to or after the date hereof for infringement of any of the
Marks or unfair competition regarding the same.
This ASSIGNMENT OF SECURITY INTEREST is made to secure the satisfactory
performance and payment of all the Obligations of the Assignor, as such term is
defined in the Security Agreement among the Assignor, the other assignors from
time to time party thereto and the Assignee, dated as of July 1, 1999 (as
amended from time to time, the "Security Agreement") and shall be effective as
of the date of the Security Agreement. Upon the termination of the Security
Agreement pursuant to Section 10.9(a) of the Security Agreement, the Assignee
shall, upon satisfaction, execute, acknowledge, and deliver to the Assignor an
instrument in writing releasing the security interest in the Marks acquired
under this Assignment of Security Interest.
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This Assignment of Security Interest has been granted in conjunction with
the security interest granted to Assignee under the Security Agreement. The
rights and remedies of the Assignee with respect to the security interest
granted herein are without prejudice to, and are in addition to those set forth
in the Security Agreement, all terms and provisions of which are incorporated
herein by reference. In the event that any provisions of this Assignment of
Security Interest are deemed to conflict with the Security Agreement, the
provisions of the Security Agreement shall govern.
* * *
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27
IN WITNESS WHEREOF, the undersigned have executed this Assignment of
Security Interest as of the day of June, 1999.
[_____________________________]
as Assignor
By:
------------------------------
Name:
Title:
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BANKERS TRUST COMPANY,
as Assignee
By:
-------------------------------
Name:
Title:
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31
STATE OF NEW YORK )
) ss. :
COUNTY OF NEW YORK )
On this __ day of June, 1999, before me personally came ________________
who, being duly sworn, did depose and say that he is
_____________________________ of [____________________] that he is authorized to
execute the foregoing Assignment of Security Interest on behalf of said
[corporation/limited liability company] and that he did so by authority of the
Board of Directors of said [corporation/limited liability company].
__________________________
Notary Public
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STATE OF NEW YORK )
) ss. :
COUNTY OF NEW YORK )
On this __ day of June, 1999, before me personally came ________________
who, being duly sworn, did depose and say that he is
_____________________________ of Bankers Trust Company, that he is authorized to
execute the foregoing Assignment of Security Interest on behalf of said
[corporation/limited liability company] and that he did so by authority of the
Board of Directors of said [corporation/limited liability company].
__________________________
Notary Public
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TRADEMARKS
Trademark Registration/Serial Number Registration/Filing Date
--------- -------------------------- ------------------------
[To be provided by the Borrower]
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ANNEX H
TO
SECURITY AGREEMENT
ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES PATENTS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which are
hereby acknowledged, [______________] a [State] [corporation] [limited liability
company] ("the Assignor") having its chief executive office at 2515 McKinney
Avenue, Suite 850, Lock Box 14, Dallas, Texas 75201, hereby assigns and grants
to BANKERS TRUST COMPANY, as Collateral Agent, with principal offices at 130
Liberty Street, New York, New York 10006 (the "Assignee"), a security interest
in all of the Assignor's rights, title and interest in and to the United States
patents and patent applications (the "Patents") set forth on Schedule A attached
hereto, in each case together with (ii) all Proceeds (as such term is defined in
the Security Agreement referred to below) and products of the Patents, (iii) all
causes of action arising prior to or after the date hereof for infringement of
any of the Patents or unfair competition regarding the same.
THIS ASSIGNMENT OF SECURITY INTEREST is made to secure the satisfactory
performance and payment of all the Obligations of the Assignor, as such term is
defined in the Security Agreement among the Assignor, the other assignors from
time to time party thereto and the Assignee, dated as of July 1, 1999 (as
amended from time to time, the "Security Agreement"). Upon termination of the
Security Agreement pursuant to Section 10 9(a) thereof, the Assignee shall, upon
such satisfaction, execute, acknowledge, and deliver to the Assignor an
instrument in writing releasing the security interest in the Patents acquired
under this Assignment.
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35
This Assignment has been granted in conjunction with the security interest
granted to the Assignee under the Security Agreement. The rights and remedies of
the Assignee with respect to the security interest granted herein are without
prejudice to, and are in addition to those set forth in the Security Agreement,
all terms and provisions of which are incorporated herein by reference. In the
event that any provisions of this Assignment are deemed to conflict with the
Security Agreement, the provisions of the Security Agreement shall govern.
* * *
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IN WITNESS WHEREOF, the undersigned have exxecuted this Assignment of
Security Interest as of the first day of July, 1999.
[______________________________________]
as Assignor
By:
------------------------------------
Name:
Title:
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37
BANKERS TRUST COMPANY
as Assignee
By:
--------------------------------------
Name:
Title:
-37-
39
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __ day of July, 1999, before me personally came ________________
who, being by me duly sworn, did state as follows: that [s]he is
_______________________, that [s]he is authorized to execute the foregoing
Assignment on behalf of said corporation and that [s]he did so by authority of
the Board of Directors of said corporation.
_____________________
Notary Public
-39-
40
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of July, 1999, before me personally came _______________
who, being by me duly sworn, did state as follows: that [s]he is
_______________________ of Bankers Trust Company, that [s]he is authorized to
execute the foregoing Assignment on behalf of said corporation and that [s]he
did so by authority of the Board of Directors of said corporation.
__________________
Notary Public
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SCHEDULE A
U.S. PATENTS
NAME OF PATENT ISSUE
PATENT NUMBER DATE
------ ------ ----
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