SECURITY AGREEMENT
Exhibit 10.2
This SECURITY AGREEMENT, dated as of February 26, 2008 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, this “Security Agreement”), made by
each of the undersigned companies, as debtor and debtor in possession (each, a “Grantor”
and collectively, the “Grantors”) and DEUTSCHE BANK TRUST COMPANY AMERICAS, in its capacity
as collateral agent (the “Collateral Agent”) for its benefit and the benefit of (i) the
Lenders and the Administrative Agent under the Credit Agreement hereinafter referred to
(collectively, the “Bank Creditors”) and (ii) the Lenders and/or Affiliates thereof that
are holders of the Approved Secured Derivative Transaction Liabilities (as defined in the Credit
Agreement hereinafter referred to) as of the date hereof (even if the respective Lender
subsequently ceases to be a Lender under the Credit Agreement for any reason) so long as any such
Lender or Affiliate continues to hold any Approved Secured Derivative Transaction Liability
(collectively the “Other Creditors”, and together with the Bank Creditors, the “Secured
Parties” or the “Secured Party”).
W I T N E S S E T H:
WHEREAS, on February 22, 2008, Xxxxxxx, Inc., a Delaware corporation (“Xxxxxxx”), and
the other Grantors filed voluntary petitions for reorganization under Chapter 11 of the Bankruptcy
Code with the United States Bankruptcy Court for the Southern District of New York (together with
such other court having jurisdiction over the Chapter 11 Cases (as hereinafter defined), the
“Bankruptcy Court”), which cases are jointly administered under Case No. 08-10595 (each, a
“Chapter 11 Case” and collectively, the “Chapter 11 Cases”);
WHEREAS, Xxxxxxx and the other Grantors continue to operate their respective businesses as
debtors and debtors in possession pursuant to Sections 1107(a) and 1108 of the Bankruptcy Code;
WHEREAS, pursuant to that certain Credit Agreement dated as of February 26, 2008 among Xxxxxxx
and the other Borrowers party thereto (each, including Xxxxxxx, a “Borrower”, and
collectively, the “Borrowers”), as debtors and debtors in possession, the financial
institutions party thereto (the “Lenders”) and Deutsche Bank Trust Company Americas, as
Administrative Agent and Collateral Agent for the Lenders thereunder (the “Administrative
Agent”) (including all annexes, exhibits and schedules thereto, as from time to time amended,
restated, supplemented or otherwise modified, the “Credit Agreement”), the Lenders have
agreed to make the Loans and to incur Letter of Credit Obligations on behalf of Borrowers;
WHEREAS, Warehouse Associates, Inc. USA, a South Carolina corporation, MRF, Inc., a Delaware
corporation, Josdav Inc., a Delaware corporation, and MED Resins, Inc., a Delaware corporation,
have entered into that certain Subsidiary Guarantee Agreement dated as of February 26, 2008 in
order to guarantee the Secured Obligations hereinafter referred to; and
WHEREAS, in order to induce the Agent to enter into the Credit Agreement and the Credit
Documents and to induce the Agent and the Lenders to make the Loans and to incur Letter of Credit
Obligations as provided for in the Credit Agreement, the Grantors have agreed to grant a
continuing Lien on the Collateral (as hereinafter defined) to secure the Secured Obligations;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS.
(a) All capitalized terms used but not otherwise defined herein have the meanings given to
them in the Credit Agreement. All other terms contained in this Security Agreement, unless the
context indicates otherwise, have the meanings provided for by the Code to the extent the same are
used or defined therein.
(b) “Capital Security” shall mean (a) any share of capital stock of or other unit of
ownership interest in any Person and (b) any security convertible into, or any option, warrant or
other right to acquire, any share of capital stock of or other unit of ownership interest in such
Person.
(c) “Domestic Subsidiary” means any Subsidiary other than a Foreign Subsidiary.
(d) “Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States of America or any state thereof, the District of
Columbia, the United States Virgin Islands or Puerto Rico.
(e) “Secured Obligations” shall mean (i) the full and prompt payment when due (whether
at the stated maturity, by acceleration or otherwise) of all obligations (including, without
limitation, all “Obligations” as such term is defined in the Credit Agreement) and liabilities of
Borrowers and each Subsidiary Guarantor now existing or hereafter incurred under, arising out of,
or in connection with the Credit Agreement or any other Credit Document to which any Borrower or
any Subsidiary Guarantor is a party and the due performance and compliance by each Borrower and
each Subsidiary Guarantor with all of the terms, conditions and agreements contained in each such
Credit Document (all such obligations and liabilities being herein collectively called the
“Credit Agreement Obligations”); (ii) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of the Approved Secured Derivative Transaction
Liabilities and compliance by each Borrower with all of the terms, conditions and agreements
contained in the documents pursuant to which the Approved Secured Derivative Transaction
Liabilities were created or evidenced (collectively, the “Approved Secured Derivative
Transaction Agreements”); provided that at no time shall the aggregate Liabilities of the
Borrowers in respect of this clause (ii) which are secured by the Security Documents be greater
than $15,000,000 (all such obligations and liabilities described in this clause (ii) being herein
collectively called the “Other Obligations”); (iii) any and all sums reasonably advanced by
the Administrative Agent or 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 of any Borrower or any Subsidiary
Guarantor referred to in clauses (i) and (ii), after an Event of Default shall have occurred and be
continuing, the reasonable expenses of 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 Collateral Agent as to which Collateral Agent has the right to
2
reimbursement under Section 5(d) of this Security Agreement. It is acknowledged and
agreed that the “Secured Obligations” shall include extensions of credit of the types described
above, whether outstanding on the date of this Security Agreement or extended from time to time
after the date of this Security Agreement.
(f) “Significant Copyrights” means, at any time, those copyrights owned or exclusively
licensed by a Grantor which are material to the business of the relevant Grantor or the value of
the Collateral at such time.
(g) “Significant Patents” means, at any time, those patents owned or exclusively
licensed by a Grantor which are material to the business of the relevant Grantor or the value of
the Collateral at such time.
(h) “Significant Trademarks” means, at any time, those trademarks owned or exclusively
licensed by a Grantor which are material to the business of the relevant Grantor or the value of
the Collateral at such time.
(i) “Termination Date” means the date on which (a) the Loans have been repaid in full
in cash, (b) all other Obligations under the Credit Agreement and the other Credit Documents have
been completely discharged (other than contingent and indemnification obligations which expressly
survive the termination of the Credit Documents and for which no claim is currently pending),
(c) all Letter of Credit Obligations have been cancelled, backstopped by standby letters of credit
acceptable to Agent or cash collateralized in a manner reasonably satisfactory to the Collateral
Agent, (d) no Borrower shall have any further right to borrow any monies under the Credit
Agreement, (e) all Approved Secured Derivative Transaction Agreements have been terminated and the
amount of Other Obligations, not to exceed the maximum amount secured hereby, has been distributed
to the Other Creditors pursuant to Section 9.5 of the Credit Agreement and (f) the Grantors have
otherwise satisfied the requirements of Section 10.10 of the Credit Agreement to obtain a release
of the Collateral.
(j) “Uniform Commercial Code jurisdiction” means any jurisdiction that has adopted all
or substantially all of Article 9 as contained in the 2000 Official Text of the Uniform Commercial
Code, as recommended by the National Conference of Commissioners on Uniform State Laws and the
American Law Institute, together with any subsequent amendments or modifications to the Official
Text.
2. GRANT OF LIEN.
(a) Subject to the Permitted Senior Liens and the Carve-Out Reserve, each Grantor hereby
grants, assigns, conveys, mortgages, pledges, hypothecates and transfers to Collateral Agent a Lien
upon all of its right, title and interest in, to and under all personal property, fixtures and
other assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of
such Grantor (including under any trade names, styles or derivations thereof), and whether owned or
consigned by or to, or leased from or to, such Grantor, and regardless of where located (all of
which being hereinafter collectively referred to as the “Collateral”) in order to secure
the prompt and complete payment, performance and observance of all of the Secured Obligations,
including, without limitation:
3
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all General Intangibles (including payment intangibles and Software);
(v) all Goods (including Inventory, Equipment and Fixtures);
(vi) all Instruments;
(vii) all Investment Property (other than Capital Securities of Subsidiaries);
(viii) all Deposit Accounts, of any Grantor, including all Blocked Accounts,
Concentration Accounts, depository accounts, Disbursement Accounts, and all other
bank accounts and all deposits therein;
(ix) all money, cash or cash equivalents of any Grantor;
(x) all Supporting Obligations and Letter-of-Credit Rights of any Grantor;
(xi) the Commercial Tort Claims described on Schedule V hereto; and
(xii) to the extent not otherwise included, all Proceeds, tort claims,
insurance claims and other rights to payments not otherwise included in the
foregoing and products of the foregoing and all accessions to, substitutions and
replacements for, and rents and profits of, each of the foregoing, including,
without limitation, the Proceeds of the claims and causes of action arising under
Sections 544, 545, 547, 548, 549 and 550 of the Bankruptcy Code, but not the claims
and causes of action.
Notwithstanding the foregoing, no Lien shall be deemed to be granted in any trademark application
filed on an intent-to-use basis until such time as a statement of use has been filed and accepted
by the United States Patent and Trademark Office.
(b) In addition, to secure the prompt and complete payment, performance and observance of the
Secured Obligations and in order to induce Collateral Agent as aforesaid, each Grantor hereby
grants to Collateral Agent, upon the occurrence and during the continuance of an Event of Default
and the giving of Required Notice by the Collateral Agent, a right of set-off against the property
of such Grantor held by Collateral Agent, consisting of property described above in Section
2(a) now or hereafter in the possession or custody of or in transit to Collateral Agent, for
any purpose, including safekeeping, collection or pledge, for the account of such Grantor, or as to
which such Grantor may have any right or power.
4
(c) The security interests granted herein and the other obligations of the Grantors hereunder
shall have the priority and status set forth in the Financing Orders.
3. COLLATERAL AGENT’S RIGHTS; LIMITATIONS ON COLLATERAL AGENT’S OBLIGATIONS.
(a) It is expressly agreed by Grantors that, anything herein to the contrary notwithstanding,
each Grantor shall remain liable under each of its Contracts and each of its Licenses to observe
and perform all the conditions and obligations to be observed and performed by it thereunder.
Collateral Agent shall not have any obligation or liability under any Contract or License by reason
of or arising out of this Security Agreement or the granting herein of a Lien thereon or the
receipt by Collateral Agent of any payment relating to any Contract or License pursuant hereto.
Collateral Agent shall not be required or obligated in any manner to perform or fulfill any of the
obligations of any Grantor under or pursuant to any Contract or License, or to make any payment, or
to make any inquiry as to the nature or the sufficiency of any payment received by it or the
sufficiency of any performance by any party under any Contract or License, or to present or file
any claims, or to take any action to collect or enforce any performance or the payment of any
amounts which may have been assigned to it or to which it may be entitled at any time or times.
(b) Collateral Agent may at any time upon the occurrence and during the continuance of an
Event of Default and after giving Required Notice, notify Account Debtors and other Persons
obligated on the Collateral that Collateral Agent has a security interest therein, and that
payments shall be made directly to Collateral Agent. Furthermore, if Agent determines that Account
Debtors’ contra-accounts or set-off rights may cause Availability to be less than zero, Agent may
notify Account Debtors that Collateral Agent has a security interest therein, and that payments
shall be made directly to Collateral Agent. Upon the request of Collateral Agent during any such
time, each Grantor shall so notify Account Debtors and other Persons obligated on Collateral. Once
any such notice has been given to any Account Debtor or other Person obligated on the Collateral,
the affected Grantor shall not give any contrary instructions to such Account Debtor or other
Person without Collateral Agent’s prior written consent (which consent shall be given if such Event
of Default is no longer continuing and no other Event of Default then exists).
(c) Collateral Agent may at any time in Collateral Agent’s own name, in the name of a nominee
of Collateral Agent or in the name of any Grantor communicate (by mail, telephone, facsimile or
otherwise) with Account Debtors, parties to Contracts and obligors in respect of Instruments to
verify with such Persons, to Collateral Agent’s reasonable satisfaction, the existence, amount
terms of, and any other matter relating to, Accounts, Instruments, Chattel Paper and/or payment
intangibles. If a Default or Event of Default shall have occurred and be continuing, each Grantor,
at its own expense, shall, or at the request of the Collateral Agent shall cause the independent
certified public accountants then engaged by such Grantor to, prepare and deliver to Collateral
Agent at any time and from time to time promptly upon Collateral Agent’s request, the following
reports with respect to each Grantor: (i) a reconciliation of all Accounts; (ii) an aging of all
Accounts; (iii) trial balances; and (iv) a test verification of such Accounts. Each Grantor, at
its own expense, shall deliver to Collateral Agent the results of each physical verification, if
any, which such Grantor may in its discretion have made, or caused any other Person to have made on
its behalf, of all or any portion of its Inventory.
5
4. REPRESENTATIONS AND WARRANTIES. Each Grantor represents and warrants that:
(a) Subject to the entry of the Financing Orders, each Grantor has rights in and the power to
xxxxx x Xxxx on each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder free
and clear of any and all Liens other than Permitted Liens.
(b) No effective security agreement, financing statement, equivalent security or Lien
instrument or continuation statement covering all or any part of the Collateral is on file or of
record in any public office, except such as may have been filed (i) in favor of Collateral Agent
pursuant to this Security Agreement or the other Credit Documents, and (ii) in connection with any
other Permitted Liens.
(c) Subject to the entry, the Financing Orders are effective to create a valid and continuing
Lien on, and a perfected Lien in favor of Collateral Agent in, the Collateral. Subject to the
entry of the Financing Orders, such Lien is prior to all other Liens, except for the Permitted
Senior Liens and the Carve-Out Reserve, and is enforceable as such as against any and all creditors
of and purchasers from any Grantor (other than purchasers and lessees of Inventory in the ordinary
course of business and non-exclusive licensees of General Intangibles in the ordinary course of
business). All action by any Grantor necessary to protect and perfect such Lien on each item of
the Collateral (including the delivery of all originals of each item set forth on Schedule
II to Collateral Agent) has been duly taken except as permitted pursuant to Section
5(b) with respect to Chattel Paper.
(d) Schedule II hereto lists all Instruments, Letter of Credit Rights and Chattel
Paper of each Grantor.
(e) Each Grantor’s name as it appears in official filings in the state of its incorporation or
other organization, the type of entity of each Grantor (including corporation, partnership, limited
partnership or limited liability company), organizational identification number issued by each
Grantor’s state of incorporation or organization or a statement that no such number has been
issued, each Grantor’s state of organization or incorporation, the location of each Grantor’s chief
executive office, principal place of business, offices, all warehouses and premises where
Collateral is stored or located, and the locations of its books and records concerning the
Collateral are set forth on Schedule III hereto. Each Grantor has only one state of
incorporation or organization.
(f) With respect to the Accounts, except as specifically disclosed in the most recent
Borrowing Base Certificate delivered to Collateral Agent (i) they represent bona fide sales of
Inventory or rendering of services to Account Debtors in the ordinary course of each Grantor’s
business and are not evidenced by a judgment, Instrument or Chattel Paper; (ii) except to the
extent permitted pursuant to the definition of Eligible Accounts Receivable, there are no setoffs,
claims or disputes existing or asserted with respect thereto and no Grantor has made any agreement
with any Account Debtor for any extension of time for the payment thereof, any compromise or
settlement for less than the full amount thereof, any release of any Account Debtor from liability
therefor, or any deduction therefrom except a discount or allowance allowed by such Grantor in the
ordinary course of its business for prompt payment and disclosed to Collateral Agent; (iii) to each
Grantor’s knowledge, except to the extent permitted pursuant to
6
the definition of Eligible Accounts Receivable, there are no facts, events or occurrences
which in any way impair the validity or enforceability thereof or could reasonably be expected to
reduce the amount payable thereunder as shown on any Grantor’s books and records and any invoices,
statements and Borrowing Base Certificates delivered to Collateral Agent with respect thereto; (iv)
no Grantor has received any notice of proceedings or actions which are threatened or pending
against any Account Debtor which might result in any material adverse change in such Account
Debtor’s financial condition; and (v) no Grantor has knowledge that any Account Debtor is unable
generally to pay its debts as they become due. Further with respect to the Accounts (x) the
amounts shown on all invoices, statements and Borrowing Base Certificates which may be delivered to
the Collateral Agent with respect thereto are actually and absolutely owing to such Grantor as
indicated thereon and are not in any way contingent; (y) no payments have been or shall be made
thereon except payments immediately delivered to the applicable Blocked Accounts or the Collateral
Agent as required pursuant to the terms of Section 2.5(b) of the Credit Agreement; and (z) to each
Grantor’s knowledge, all Account Debtors have the capacity to contract.
(g) With respect to any Inventory scheduled or listed on the most recent Borrowing Base
Certificate delivered to Collateral Agent pursuant to the terms of this Security Agreement or the
Credit Agreement, (i) such Inventory is located at one of the applicable Grantor’s locations set
forth on Schedule III hereto, as applicable, (ii) no Inventory is now, or shall at any time
or times hereafter be stored at any other location without Collateral Agent’s prior consent, and if
Collateral Agent gives such consent, the applicable Grantor will concurrently therewith obtain, to
the extent required by the Credit Agreement, bailee, landlord and mortgagee agreements, (iii) the
applicable Grantor has good, indefeasible and merchantable title to such Inventory and such
Inventory is not subject to any Lien or security interest or document whatsoever except for the
Lien granted to Collateral Agent and except for Permitted Liens, (iv) except as specifically
disclosed in the most recent Borrowing Base Certificate delivered to Collateral Agent, such
Inventory is Eligible Inventory of good and merchantable quality, free from any defects and (v)
such Inventory is not subject to any licensing, patent, royalty, trademark, trade name or copyright
agreements with any third parties which would require any consent of any third party upon sale or
disposition of that Inventory or the payment of any monies to any third party upon such sale or
other disposition.
(h) No Grantor has any interest in, or title to, any material license (except for commercially
available licensed software), issuance, registration, or application for issuance or registration
of any patent, trademark or copyright except as set forth in Schedule IV hereto.
5. COVENANTS. Each Grantor covenants and agrees with Collateral Agent that from and
after the date of this Security Agreement and until the Termination Date:
(a) Further Assurances; Pledge of Instruments; Chattel Paper.
(i) At any time and from time to time, upon the request of Collateral Agent and at the
sole expense of Grantors, each Grantor shall promptly and duly execute and deliver any and
all such further instruments and documents and take such further actions as Collateral Agent
may reasonably deem desirable to obtain the full benefits of this Security Agreement and of
the rights and powers herein granted, including (A) using its commercially reasonable
efforts to secure all consents and approvals necessary or
7
appropriate for the assignment to or for the benefit of Collateral Agent of any License
or Contract held by such Grantor and material to its business and to enforce the security
interests granted hereunder and (B) filing any financing or continuation statements under
the Code with respect to the Liens granted hereunder or under any other Credit Document as
to those jurisdictions that are not Uniform Commercial Code jurisdictions.
(ii) Unless Collateral Agent shall otherwise consent in writing (which consent may be
revoked), each Grantor shall deliver to Collateral Agent all Collateral consisting of
negotiable Documents, certificated securities, Chattel Paper and Instruments (in each case,
accompanied by stock powers, allonges or other instruments of transfer executed in blank)
promptly after such Credit Party receives the same.
(iii) Upon request by Collateral Agent, to the extent commercially reasonable, each
Grantor shall obtain waivers or subordinations of Liens from landlords and mortgagees, and
obtain signed acknowledgements of Collateral Agent’s Liens from bailees having possession of
any Grantor’s Goods that they hold for the benefit of Collateral Agent.
(iv) Upon request by Collateral Agent, Grantor shall obtain authenticated Control
Agreements from each issuer of uncertificated securities, securities intermediary, or
commodities intermediary issuing or holding any financial assets or commodities to or for
any Grantor.
(v) Each Grantor shall obtain such blocked account, lockbox or similar agreements with
each bank or financial institution holding a Deposit Account for such Grantor to the extent
required by Section 2.5(b) of the Credit Agreement.
(vi) Upon request by Collateral Agent, each Grantor that is or becomes the beneficiary
of a letter of credit having a stated amount of over $250,000 shall promptly, and in any
event within two (2) Business Days after becoming a beneficiary, notify Collateral Agent
thereof, and shall thereafter enter into a tri-party agreement with Collateral Agent and the
issuer and/or confirmation bank with respect to Letter-of-Credit Rights assigning such
Letter-of-Credit Rights to Collateral Agent and directing all payments thereunder to the
Collection Account, all in form and substance reasonably satisfactory to Collateral Agent.
(vii) Upon request by Collateral Agent, each Grantor shall take all steps necessary to
grant the Collateral Agent control of all electronic chattel paper in accordance with the
Code and all “transferable records” as defined in each of the Uniform Electronic
Transactions Act and the Electronic Signatures in Global and National Commerce Act; provided
that prior to a request by the Collateral Agent after the occurrence and during the
continuance of an Event of Default, such steps need only be taken to the extent such
Collateral has a value in excess of $250,000 in the aggregate.
(viii) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and
from time to time to file in any filing office in any Uniform Commercial Code jurisdiction
any initial financing statements and amendments thereto that (a) indicate the Collateral (i)
as all assets of such Grantor or words of similar effect,
8
regardless of whether any particular asset comprised in the Collateral falls within the
scope of Article 9 of the Code or such jurisdiction, or (ii) as being of an equal or lesser
scope or with greater detail, and (b) contain any other information required by part 5 of
Article 9 of the Code for the sufficiency or filing office acceptance of any financing
statement or amendment, including (i) whether such Grantor is an organization, the type of
organization and any organization identification number issued to such Grantor, and (ii) in
the case of a financing statement filed as a fixture filing or indicating Collateral as
as-extracted collateral or timber to be cut, a sufficient description of real property to
which the Collateral relates. Each Grantor agrees to furnish any such information to the
Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for
the Collateral Agent to have filed in any Uniform Commercial Code jurisdiction any initial
financing statements or amendments thereto if filed prior to the date hereof.
(ix) Each Grantor shall promptly, and in any event within fifteen (15) Business Days
after the same is acquired by it, notify Collateral Agent of any commercial tort claim (as
defined in the Code) acquired by it and unless otherwise consented by Collateral Agent, such
Grantor shall thereafter enter into a supplement to this Security Agreement, granting to
Collateral Agent a Lien in such commercial tort claim.
(b) Maintenance of Records. Grantors shall keep and maintain, at their own cost and
expense, satisfactory and complete records of the Collateral, including a record of any and all
payments received and any and all credits granted with respect to the Collateral and all other
dealings with the Collateral. If requested by Collateral Agent, Grantors shall xxxx their books
and records pertaining to the Collateral to evidence this Security Agreement and the Liens granted
hereby. If any Grantor retains possession of any Chattel Paper or Instruments with Collateral
Agent’s consent, such Chattel Paper and Instruments shall be marked with the following legend:
“This writing and the obligations evidenced or secured hereby are subject to the security interest
of Deutsche Bank Trust Company Americas, as Collateral Agent.”; provided that with respect to
Chattel Paper and Instruments in the possession of any Grantor on the date hereof, such Grantor
shall cause such Chattel Paper and Instruments to be so marked within thirty (30) after the date
hereof.
(c) Covenants Regarding Patent, Trademark and Copyright Collateral.
(i) Such Grantor shall notify Collateral Agent immediately if it knows or has reason to
know that any application or registration relating to any Significant Patent, Significant
Trademark or Significant Copyright (now or hereafter existing) may become abandoned or
dedicated, or of any materially adverse determination or development (including the
institution of, or any such determination or development in, any proceeding in the United
States Patent and Trademark Office, the United States Copyright Office or any court)
regarding such Grantor’s ownership of any Significant Patent, Significant Trademark or
Significant Copyright, its right to register the same, or to keep and maintain the same.
(ii) Upon any Grantor, either itself or through any agent, employee, licensee or
designee, filing an application for the registration of any Significant Patent, Significant
Trademark or Significant Copyright with the United States Patent and Trademark Office, the
United States Copyright Office or any similar office or agency,
9
such Grantor will give the Collateral Agent written notice within fifteen (15) days
thereof, and, upon request of Collateral Agent, Grantor shall execute and deliver any and
all Patent Security Agreements, Copyright Security Agreements or Trademark Security
Agreements as Collateral Agent may request to evidence Collateral Agent’s Lien on such
Significant Patent, Significant Trademark or Significant Copyright, and the General
Intangibles of such Grantor relating thereto or represented thereby.
(iii) Such Grantor shall take all actions necessary or reasonably requested by
Collateral Agent to maintain and pursue each application, to obtain the relevant
registration and to maintain the registration of, each of the Significant Patents,
Significant Trademarks and Significant Copyrights (now or hereafter existing), including
the filing of applications for renewal, affidavits of use, affidavits of noncontestability
and opposition and interference and cancellation proceedings.
(iv) In the event that any of the Significant Patent, Significant Trademark or
Significant Copyright is infringed upon, or misappropriated or diluted by a third party,
upon becoming aware thereof such Grantor shall promptly notify the Collateral Agent and take
such other actions as Collateral Agent shall reasonably deem appropriate under the
circumstances to protect such Significant Patent, Significant Trademark or Significant
Copyright.
(d) Indemnification. In any suit, proceeding or action brought by Collateral Agent
relating to any Collateral for any sum owing with respect thereto or to enforce any rights or
claims with respect thereto, each Grantor will save, indemnify and keep Collateral Agent harmless
from and against all expense (including reasonable attorneys’ fees and expenses), loss or damage
suffered by reason of any defense, setoff, counterclaim, recoupment or reduction of liability
whatsoever of the Account Debtor or other Person obligated on the Collateral, arising out of a
breach by any Grantor of any obligation thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to, or in favor of, such obligor or its successors from
such Grantor, except to the extent such expense, loss, or damage is attributable to the gross
negligence, bad faith or willful misconduct of Collateral Agent as finally judicially determined.
All such obligations of Grantors shall be and remain enforceable against and only against Grantors
and shall not be enforceable against Collateral Agent.
(e) Compliance with Terms of Accounts, etc. In all material respects, each Grantor
will perform and comply with its obligations in respect of the Collateral and all other agreements
to which it is a party or by which it is bound relating to the Collateral.
(f) Limitation on Liens on Collateral. No Grantor will create, permit or suffer to
exist, and each Grantor will defend the Collateral against, and take such other action as is
necessary to remove, any Lien on the Collateral except for Permitted Liens, and will defend the
right, title and interest of Collateral Agent in and to any of such Grantor’s rights under the
Collateral against the claims and demands of all Persons whomsoever.
(g) Limitations on Disposition. No Grantor will sell, license, lease, transfer or
otherwise dispose of any of the Collateral, or attempt or contract to do so except as permitted by
the Credit Agreement.
10
(h) Further Identification of Collateral. Grantors will, if so requested by
Collateral Agent, furnish to Collateral Agent, as often as Collateral Agent reasonably requests,
statements and schedules further identifying and describing the Collateral and such other reports
in connection with the Collateral as Collateral Agent may reasonably request, all in such detail as
Collateral Agent may specify.
(i) Notices. Grantors will advise Collateral Agent promptly, in reasonable detail,
(i) of any Lien (other than Permitted Liens), or claim made or asserted against any of the
Collateral, and (ii) of the occurrence of any other event which would have a material adverse
effect on the aggregate value of the Collateral or on the Liens created hereunder or under any
other Credit Document.
(j) Good Standing Certificates. Upon request of Collateral Agent (not to exceed once
per calendar year excluding such requests as are made after the occurrence and during the
continuance of an Event of Default), each Grantor shall provide to Collateral Agent a certificate
of good standing from its state of incorporation or organization.
(k) No Reincorporation. Without limiting the prohibitions on mergers involving the
Grantors contained in the Credit Agreement, no Grantor shall reincorporate or reorganize itself
under the laws of any jurisdiction other than the jurisdiction in which it is incorporated or
organized as of the date hereof without prior written notice to Collateral Agent.
(l) Terminations; Amendments Not Authorized. Each Grantor acknowledges that it is not
authorized to file any financing statement or amendment or termination statement with respect to
any financing statement without the prior written consent of Collateral Agent and agrees that it
will not do so without the prior written consent of Collateral Agent, subject to such Grantor’s
rights under Section 9-509(d)(2) of the Code.
6. COLLATERAL AGENT’S APPOINTMENT AS ATTORNEY-IN-FACT.
On the effective date of this Security Agreement, each Grantor shall execute and deliver to
Collateral Agent a power of attorney (the “Power of Attorney”) substantially in the form
attached hereto as Exhibit A. The power of attorney granted pursuant to the Power of
Attorney is a power coupled with an interest and shall be irrevocable until the Termination Date.
The powers conferred on Collateral Agent under the Power of Attorney are solely to protect
Collateral Agent’s interests in the Collateral and shall not impose any duty upon Collateral Agent
to exercise any such powers. Collateral Agent agrees that (a) except for the powers granted in
clause (h) of the Power of Attorney, it shall not exercise any power or authority granted under the
Power of Attorney unless an Event of Default has occurred and is continuing and Required Notice has
been given, and (b) Collateral Agent shall account for any moneys received by Collateral Agent in
respect of any foreclosure on or disposition of Collateral pursuant to the Power of Attorney
provided that Collateral Agent shall have no duty as to any Collateral, and Collateral Agent shall
be accountable only for amounts that it actually receives as a result of the exercise of such
powers. NONE OF COLLATERAL AGENT OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
REPRESENTATIVES SHALL BE RESPONSIBLE TO ANY GRANTOR FOR ANY ACT OR FAILURE TO ACT UNDER ANY POWER
OF ATTORNEY OR OTHERWISE, EXCEPT IN RESPECT OF DAMAGES TO THE
11
EXTENT ATTRIBUTABLE TO THEIR OWN GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT AS FINALLY
JUDICIALLY DETERMINED, NOR FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES.
7. REMEDIES; RIGHTS UPON DEFAULT.
(a) In addition to all other rights and remedies granted to it under this Security Agreement,
the Credit Agreement, the other Credit Documents and under any other instrument or agreement
securing, evidencing or relating to any of the Secured Obligations, if any Event of Default shall
have occurred and be continuing and Required Notice has been given, Collateral Agent may exercise
all rights and remedies of a secured party under the Code. Without limiting the generality of the
foregoing, each Grantor expressly agrees that in any such event Collateral Agent, without demand of
performance or other demand, advertisement or notice of any kind (except the notice specified below
of time and place of public or private sale and except for notices required under the Credit
Documents, if any) to or upon such Grantor or any other Person (all and each of which demands,
advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code
and other applicable law), may (A) forthwith enter upon the premises of such Grantor where any
Collateral is located through self-help, without judicial process, without first obtaining a final
judgment or giving such Grantor or any other Person notice and opportunity for a hearing on
Collateral Agent’s claim or action, (B) collect, receive, assemble, process, appropriate and
realize upon the Collateral, or any part thereof, and (C) forthwith sell, lease, license, assign,
give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral
(or contract to do so), or any part thereof, in one or more parcels at a public or private sale or
sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for
future delivery without assumption of any credit risk. Collateral Agent shall have the right upon
any such public sale or sales and, to the extent permitted by law, upon any such private sale or
sales, to purchase the whole or any part of said Collateral so sold, free of any right or equity of
redemption, which equity of redemption each Grantor hereby releases. Such sales may be adjourned
and continued from time to time with or without notice. Collateral Agent shall have the right to
conduct such sales on any Grantor’s premises or elsewhere and shall have the right to use any
Grantor’s premises without charge for such time or times as Collateral Agent deems necessary or
advisable.
If any Event of Default shall have occurred and be continuing and Required Notice has been
given, each Grantor further agrees, at Collateral Agent’s request, to assemble the Collateral and
make it available to Collateral Agent at a place or places designated by Collateral Agent which are
reasonably convenient to Collateral Agent and such Grantor, whether at such Grantor’s premises or
elsewhere. Until Collateral Agent is able to effect a sale, lease, or other disposition of
Collateral, Collateral Agent shall have the right to hold or use Collateral, or any part thereof,
to the extent that it deems appropriate for the purpose of preserving Collateral or its value or
for any other purpose deemed appropriate by Collateral Agent. Collateral Agent shall have no
obligation to any Grantor to maintain or preserve the rights of such Grantor as against third
parties with respect to Collateral while Collateral is in the possession of Collateral Agent.
Collateral Agent may, if it so elects, seek the appointment of a receiver or keeper to take
possession of Collateral and to enforce any of Collateral Agent’s remedies without prior notice or
hearing as to such appointment. Collateral Agent shall apply the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale to the Secured Obligations as
provided in Section 9 of this Security Agreement, and only after so paying over such net
12
proceeds, and after the payment by Collateral Agent of any other amount required by any
provision of law, need Collateral Agent account for the surplus, if any, to any Grantor. To the
maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands
against Collateral Agent arising out of the repossession, retention or sale of the Collateral
except such as arise solely out of the gross negligence or willful misconduct of Collateral Agent
as finally determined by a court of competent jurisdiction. Each Grantor agrees that ten (10) days
prior notice by Collateral Agent of the time and place of any public sale or of the time after
which a private sale may take place is reasonable notification of such matters. Grantors shall
remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are
insufficient to pay all Secured Obligations, including any attorneys’ fees and other expenses
incurred by Collateral Agent to collect such deficiency.
(b) Except as otherwise specifically provided herein, each Grantor hereby waives presentment,
demand, protest or any notice (other than any notice required under the Credit Documents, if any)
(to the maximum extent permitted by applicable law) of any kind in connection with this Security
Agreement or any Collateral.
(c) Collateral Agent shall not be required to make any demand upon, or pursue or exhaust any
of its rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other
Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of its
rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee
thereof. Collateral Agent shall not be required to marshal the Collateral or any guarantee of the
Secured Obligations or to resort to the Collateral or any such guarantee in any particular order,
and all of its rights hereunder or under any other Credit Document shall be cumulative. To the
extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the
benefit and advantage of, and covenants not to assert against the Collateral Agent until after the
Termination Date, any valuation, stay, appraisement, extension, redemption or similar laws and any
and all rights or defenses it may have as a surety now or hereafter existing which, but for this
provision, might be applicable to the sale of any Collateral made under the judgment, order or
decree of any court, or privately under the power of sale conferred by this Security Agreement, or
otherwise.
8. GRANT OF LICENSE TO USE PATENT, TRADEMARK AND COPYRIGHT COLLATERAL. For the
purpose of enabling Collateral Agent to exercise rights and remedies under Section 7 hereof
(including, without limiting the terms of Section 7 hereof, in order to take possession of,
hold, preserve, process, assemble, prepare for sale, market for sale, sell or otherwise dispose of
Collateral) at such time as Collateral Agent shall be lawfully entitled to exercise such rights and
remedies, each Grantor hereby grants to Collateral Agent, effective only at such time an Event of
Default shall have occurred and be continuing and Required Notice has been given, an irrevocable,
nonexclusive license (exercisable without payment of royalty or other compensation to such Grantor)
to use, license or sublicense any patent, trademark, trade secret or copyright now owned or
hereafter acquired by such Grantor, and wherever the same may be located, and including in such
license access to all media in which any of the licensed items may be recorded or stored and to all
computer software and programs used for the compilation or printout thereof.
9. APPLICATION OF PROCEEDS. All moneys collected by the Collateral Agent (or, to the
extent the Pledge Agreement requires proceeds of Collateral under such
13
agreement to be applied in accordance with the provisions of this Security Agreement, the
Collateral Agent under such other agreement) upon any sale or other disposition of the Collateral,
together with all other moneys received by the Collateral Agent hereunder, shall be applied as set
forth in Section 9.5 of the Credit Agreement.
10. LIMITATION ON COLLATERAL AGENT’S DUTY IN RESPECT OF COLLATERAL. Collateral Agent
shall use reasonable care with respect to the Collateral in its possession or under its control.
Collateral Agent shall not have any other duty as to any Collateral in its possession or control or
in the possession or control of any agent or nominee of Collateral Agent, or any income thereon or
as to the preservation of rights against prior parties or any other rights pertaining thereto.
11. NOTICES. Except as otherwise provided herein, whenever it is provided herein that
any notice, demand, request, consent, approval, declaration or other communication shall or may be
given to or served upon any of the parties by any other party, or whenever any of the parties
desires to give and serve upon any other party any communication with respect to this Security
Agreement, each such notice, demand, request, consent, approval, declaration or other communication
shall be in writing and shall be given in the manner, and deemed received, as provided for in the
Credit Agreement.
12. SEVERABILITY. Whenever possible, each provision of this Security Agreement shall
be interpreted in a manner as to be effective and valid under applicable law, but if any provision
of this Security Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this Security Agreement. This Security
Agreement is to be read, construed and applied together with the Credit Agreement and the other
Credit Documents which, taken together, set forth the complete understanding and agreement of
Collateral Agent and Grantors with respect to the matters referred to herein and therein.
13. NO WAIVER; CUMULATIVE REMEDIES; AMENDMENT. Collateral Agent shall not by any act,
delay, omission or otherwise be deemed to have waived any of its rights or remedies hereunder. A
waiver by Collateral Agent of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which Collateral Agent would otherwise have had on any
future occasion. No failure to exercise nor any delay in exercising on the part of Collateral
Agent, any right, power or privilege hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude any other or future
exercise thereof or the exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently, and are not
exclusive of any rights and remedies provided by law. None of the terms or provisions of this
Security Agreement may be waived, altered, modified or amended except by an instrument in writing,
duly executed by the Grantors and Collateral Agent (with the written consent of the Majority
Lenders, or to the extent required by Section 11.10 of the Credit Agreement, all the Lenders);
provided, however, that any change, waiver, modification or variance affecting the
rights and benefits of the Other Creditors shall require the written consent of the holders of at
least 51% in amount of all of the Approved Secured Derivative Transaction Liabilities.
14
14. LIMITATION BY LAW. All rights, remedies and powers provided in this Security
Agreement may be exercised only to the extent that the exercise thereof does not violate any
applicable provision of law, and all the provisions of this Security Agreement are intended to be
subject to the giving by the Collateral Agent of Required Notice and to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent necessary so that they
shall not render this Security Agreement invalid, unenforceable, in whole or in part, or not
entitled to be recorded, registered or filed under the provisions of any applicable law.
15. RELEASE OF COLLATERAL; TERMINATION OF THIS SECURITY AGREEMENT. (a) After the
Termination Date, this Security Agreement shall automatically terminate and the Collateral Agent,
at the request and expense of the Grantors, will execute and deliver to each Grantor a proper
instrument or instruments (including Uniform Commercial Code termination statements on form UCC-3)
acknowledging the satisfaction and termination of this Security Agreement, and will duly assign,
transfer and deliver to each Grantor (without recourse and without any representation or warranty)
such of the Collateral of such Grantor as has not theretofore been sold or otherwise applied or
released pursuant to this Security Agreement.
(b) In the event that any part of the Collateral is sold or otherwise disposed of in
connection with a sale or other disposition permitted by Section 8.5 of the Credit Agreement or is
otherwise released at the direction of the Majority Lenders (or all the Lenders if required by
Section 11.10 of the Credit Agreement), such Collateral will be sold free and clear of the Liens
created by this Security Agreement and the Collateral Agent, at the request and expense of the
Grantors, will duly assign, transfer and deliver to the relevant Grantor (without recourse and
without any representation or warranty) such of the Collateral as is then being (or has been) so
sold or released and has not theretofore been released pursuant to this Security Agreement,
provided that the Liens created by this Security Agreement will attach to the proceeds of any such
sale with a priority consistent with the Financing Orders. The Collateral Agent shall also be
entitled to and is hereby authorized and directed to duly assign, transfer and deliver such of the
Collateral as provided in Section 10.10(b) or (c) of the Credit Agreement.
(c) At any time that a Grantor desires that the Collateral Agent take any action to
acknowledge or give effect to any release of Collateral pursuant to the foregoing Section
15(a) or (b), as the case may be, it shall deliver to the Collateral Agent a
certificate signed by an Authorized Officer stating that the release of the respective Collateral
is permitted pursuant to Section 15(a) or (b), as the case may be.
(d) The Collateral Agent shall have no liability whatsoever to any Secured Creditor as a
result of any release of Collateral by it in accordance with this Section 15.
16. SUCCESSORS AND ASSIGNS. This Security Agreement and all obligations of Grantors
hereunder shall be binding upon the successors and assigns of each Grantor (including any
debtor-in-possession on behalf of such Grantor) and shall, together with the rights and remedies of
Collateral Agent hereunder, inure to the benefit of Collateral Agent, all future holders of any
instrument evidencing any of the Secured Obligations and their respective successors and assigns.
No sales of participations, other sales, assignments, transfers or other dispositions of any
agreement governing or instrument evidencing the Secured Obligations or any portion thereof or
interest therein shall in any manner affect the Lien granted
15
to Collateral Agent hereunder. No Grantor may assign, sell, hypothecate or otherwise transfer
any interest in or obligation under this Security Agreement.
17. COUNTERPARTS. This Security Agreement may be authenticated in any number of
separate counterparts, each of which shall collectively and separately constitute one and the same
agreement. This Security Agreement may be authenticated by manual signature, facsimile or, if
approved in writing by Collateral Agent, electronic means, all of which shall be equally valid.
18. CONSENT TO JURISDICTION; MUTUAL WAIVER OR JURY TRIAL. ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR
ANY OF THE SECURED OBLIGATIONS, MAY BE BROUGHT IN THE BANKRUPTCY COURT, AND IF THE BANKRUPTCY COURT
DOES NOT HAVE (OR ABSTAINS FROM) JURISDICTION, OR THE CHAPTER 11 CASES HAVE BEEN DISMISSED, ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY
EXECUTING AND DELIVERING THIS SECURITY AGREEMENT, EACH PARTY HERETO, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY (1) ACCEPTS GENERALLY AND UNCONDITIONALLY THE JURISDICTION AND
VENUE OF SUCH COURTS; (2) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (3) AGREES THAT SERVICE OF
ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO IT AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 11.5 OF THE
CREDIT AGREEMENT; (4) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (3) ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (5) AGREES THE PARTIES
HERETO RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
PROCEEDINGS AGAINST ANY PARTY HERETO IN THE COURTS OF ANY OTHER JURISDICTION. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS SECURITY
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE
PARTIES TO THIS SECURITY AGREEMENT HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY
IN ANY COURT OR JURISDICTION, INCLUDING WITHOUT LIMITATION THOSE REFERRED TO ABOVE, IN RESPECT TO
ANY MATTER ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT AND THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
19. GOVERNING LAW. THE RIGHTS AND DUTIES OF THE GRANTORS AND THE COLLATERAL AGENT
UNDER THIS SECURITY AGREEMENT AND THE OTHER CREDIT DOCUMENTS SHALL, PURSUANT TO NEW YORK
16
GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK, EXCEPT AS GOVERNED BY THE BANKRUPTCY CODE.
20. SECTION TITLES. The Section titles contained in this Security Agreement are and
shall be without substantive meaning or content of any kind whatsoever and are not a part of the
agreement between the parties hereto.
21. NO STRICT CONSTRUCTION. The parties hereto have participated jointly in the
negotiation and drafting of this Security Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Security Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this Security Agreement.
22. ADVICE OF COUNSEL. Each of the parties represents to each other party hereto that
it has discussed this Security Agreement and, specifically, the provisions of Section 18
and Section 19, with its counsel.
23. EFFECT OF FINANCING ORDERS. Notwithstanding anything to the contrary in this
Security Agreement or any other Credit Document, this Security Agreement (including, without
limitation, each Grantor’s representations, warranties and covenants contained herein) shall be
subject to the terms and provisions of the Financing Orders. In the event of any conflict or
inconsistency between the terms and provisions of the Financing Orders and this Security Agreement,
the terms and provisions of the Financing Orders shall control.
[signature page follows]
17
IN WITNESS WHEREOF, each of the parties hereto has caused this Security Agreement to be
executed and delivered by its duly authorized officer as of the date first set forth above.
| XXXXXXX, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| PRINCE, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| XXXXXXX OF MISSISSIPPI, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| FIBER INDUSTRIES, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| CARPET RECYCLING OF GEORGIA, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| ALG, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| WAREHOUSE ASSOCIATES, INC. USA | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| MRF, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| JOSDAV INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| MED RESINS, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
[Signature Page to Security Agreement]
| PTA RESOURCES, LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent |
||||||
| By: | /s/ Xxxxxxxxxx Xxxxxx | |||||
| Name: | Xxxxxxxxxx Xxxxxx | |||||
| Title: | Director | |||||
| By: | /s/ Xxxxx X. Xxxx | |||||
| Name: | Xxxxx X. Xxxx | |||||
| Title: | Managing Director | |||||
[Signature Page to Security Agreement]
