CANADIAN SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of August 13, 1999, between CANADIAN
DRAWN STEEL COMPANY INC. (the "Guarantor"), a Canadian company, and BANKBOSTON,
N.A., a national banking association, as administrative agent (hereinafter in
such capacity, the "Agent") for itself and other lending institutions
(hereinafter, collectively, the "Banks") which are or may become parties to a
Revolving Credit Agreement of even date herewith (as amended and in effect from
time to time, the "Credit Agreement"), among the Guarantor, the Banks, the Agent
and the other parties thereto.
WHEREAS, it is a condition precedent to the Banks' making any loans
or otherwise extending credit to the Borrower under the Credit Agreement that
the Guarantor execute and deliver to the Agent, for the benefit of the Banks and
the Agent, a security agreement in substantially the form hereof; and
WHEREAS, the Guarantor wishes to grant security interests in favor
of the Agent, for the benefit of the Banks and the Agent, as herein provided;
NOW THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1.0 Definitions.
All capitalized terms used herein without definitions shall have the
respective meanings provided therefor in the Credit Agreement. All terms not
defined in the Credit Agreement but defined in the Personal Property Security
Act (Ontario) ("PPSA") and used herein shall have the same definitions herein as
specified therein.
2.0 Grant of Security Interest.
2.1 Collateral Granted.
The Guarantor hereby grants to the Agent, for the benefit of the
Banks and the Agent, to secure the payment and performance in full
of all of the Obligations of the Guarantor, a security interest in
and so pledges and assigns to the Agent, for the benefit of the
Banks and the Agent, all of the following properties, assets and
rights of the Guarantor, whether now owned or hereafter acquired or
arising, and all proceeds and products thereof and all general
intangibles, documents and instruments relating to any of the
following (all of the same being hereinafter called the
"Collateral"):
(a) all inventory, including raw materials, work in progress and
finished goods;
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(b) accounts, including accounts receivable, and chattel paper,
insurance refund claims and all other insurance claims and
proceeds to which the Agent is entitled pursuant to the
provisions of Section 8.7 of the Credit Agreement;
(c) all general intangibles (other than intellectual property),
including, without limitation, all rights to the payment of
money, to the extent relating to the Collateral described in
(a) and (b) above;
(d) all rights to all short term Investments described in section
9.3 of the Credit Agreement constituting Collateral described
in (a), (b) or (c) above or proceeds thereof, and to the
extent such Investments do not constitute Collateral for the
Notes , together with all income therefrom and increases
therein; and
(e) all patents, trademarks, trade names, including without
limitation, all right, title and interest of the Guarantor in
and to the trademarks, service marks, registrations of
trademarks and service marks and applications therefor,
patents and applications for patents set forth on the attached
Schedule "A" (collectively, the "Patents and Trademarks"),
together with all right, title and interest of the Guarantor
in and to all patents and trademarks which the Guarantor may
hereinafter acquire, the right to file and prosecute
applications for patents and trademarks, including the Patents
and Trademarks, and similar intellectual property anywhere in
the world and the good will of the business connected with the
use of and symbolized by the Patents and Trademarks, together
with all assets which uniquely reflect the good will of the
business of the Guarantor, including but not limited to, the
Guarantor's trade names, customer lists, trade secrets,
corporate and other business records, license rights,
advertising materials, operating manuals, methods, processes,
know-how, sales literature, drawings, specifications,
descriptions, inventions, name plates, catalogues, copyrights,
dealer contracts, supplier contracts, distribution agreements,
confidential information, consulting agreements, engineering
contracts and engineering drawings (all of the foregoing
described in this clause (d) collectively referred to herein
as the "Intellectual Property").
2.2 Delivery of Instruments, etc.
(a) Pursuant to the terms hereof, the Guarantor has endorsed,
assigned and delivered to the Agent all negotiable or non-negotiable
instruments and chattel paper pledged by it hereunder, together with
instruments of transfer or assignment duly executed in blank as the
Agent may have specified. In the event that the Guarantor shall,
after the date of this Agreement, acquire any other negotiable or
non-negotiable instruments or chattel paper to be pledged by it
hereunder, the Guarantor shall forthwith endorse, assign and deliver
the same to the Agent, accompanied by such instruments of transfer
or assignment duly executed in blank as the Agent may from time to
time specify.
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(b) To the extent that the Guarantor is a beneficiary under any
written letter of credit constituting Collateral now or hereafter
issued in favor of the Guarantor and pledged by it hereunder, the
Guarantor shall deliver such letter of credit to the Agent. The
Agent shall from time to time, at the request and expense of the
Guarantor, make such arrangements with the Guarantor as are in the
Agent's reasonable judgment necessary and appropriate so that the
Guarantor may make any drawing to which the Guarantor is entitled
under such letter of credit, without impairment of the Agent's
perfected security interest in the Guarantor's rights to proceeds of
such letter of credit or in the actual proceeds of such drawing. At
the Agent's request, the Guarantor shall, for any such letter of
credit, now or hereafter issued in favor of the Guarantor as
beneficiary, execute and deliver to the issuer and any confirmer of
such letter of credit an assignment of proceeds form, in favor of
the Agent and satisfactory to the Agent and such issuer or (as the
case may be) such confirmer, requiring the proceeds of any drawing
under such letter of credit to be paid directly to the Agent for
application as provided in the Credit Agreement, and the Guarantor
shall deliver to the Agent a consent in writing to such assignment
from the issuer of such letter of credit.
2.3 Excluded Collateral.
Notwithstanding the foregoing provisions of this Agreement, such
grant of security interest shall not extend to, and the term
"Collateral" shall not include, any chattel paper, general
intangibles and any intellectual property which are now or hereafter
held by the Guarantor as licensee, lessee or otherwise, to the
extent that (i) such chattel paper, general intangibles and such
intellectual property are not assignable or capable of being
encumbered as a matter of law or under the terms of the license,
lease or other agreement applicable thereto (but solely to the
extent that any such restriction shall be enforceable under
applicable law), without the consent of the licensor or lessor
thereof or other applicable party thereto and (ii) such consent has
not been obtained; provided, however, that the foregoing grant of
security interest shall extend to, and the term "Collateral" shall
include, (A) any and all proceeds of such chattel paper, general
intangibles and such intellectual property to the extent that the
assignment or encumbering of such proceeds is not so restricted and
(B) upon any such licensor, lessor or other applicable party consent
with respect to any such otherwise excluded chattel paper, general
intangibles and such intellectual property being obtained
(including, without limitation, any such consent contained in the
Other Asset Intercreditor Agreement), thereafter such chattel paper,
general intangibles and such intellectual property as well as any
and all proceeds thereof that might have theretofore been excluded
from such grant of a security interest and the term "Collateral".
2.4 Patent and Trademark Assignments.
Concurrently herewith, the Guarantor is also executing and
delivering to the Agent, for the benefit of the Banks and the Agent,
the Assignment of Intellectual Property pursuant
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to which the Guarantor is assigning to the Agent, for the benefit of
the Banks and the Agent, certain Collateral consisting of patents
and patent rights and trademarks, service marks and trademark and
service xxxx rights, together with the goodwill appurtenant thereto.
The provisions of the Assignment of Intellectual Property are
supplemental to the provisions of this Agreement, and nothing
contained in the Assignment of Intellectual Property shall derogate
from any of the rights or remedies of the Agent or any of the Banks
hereunder. Nor shall anything contained in the Assignment of
Intellectual Property be deemed to prevent or extend the time of
attachment or perfection of any security interest in such Collateral
created hereby.
3.0 Title to Collateral, etc.
The Guarantor is the owner of the Collateral pledged by it free from
any adverse lien, security interest or other encumbrance, except for the
security interest created by this Agreement and other liens permitted by the
Credit Agreement. None of the account debtors in respect of any accounts,
chattel paper or general intangibles and none of the obligors in respect of any
instruments included in the Collateral is a governmental authority subject to
the Financial Administrations Act.
4.0 Continuous Perfection.
The Guarantor's place of business or, if more than one, chief
executive office is indicated on the Perfection Certificate delivered to the
Agent herewith and the Guarantor will not change the same, or the name, identity
or corporate structure of the Guarantor in any manner, without providing at
least thirty (30) days prior written notice to the Agent. The Collateral, to the
extent not delivered to the Agent pursuant to this Agreement, will be kept at
those locations listed on Schedule "B" and except in the regular course of
business, will not remove the Collateral from such locations, without providing
at least thirty (30) days prior written notice to the Agent, unless such
Collateral is removed to another location in which the Agent has a perfected
security interest.
5.0 No Liens.
Except for the security interest herein granted and liens permitted
by the Credit Agreement, the Guarantor shall be the owner of the Collateral
pledged by it hereunder free from any lien, security interest or other
encumbrance, and the Guarantor shall defend the same against all claims and
demands of all persons at any time claiming the same or any interests therein
adverse to the Agent or any of the Banks. The Guarantor shall not pledge,
mortgage or create, or suffer to exist a security interest in the Collateral in
favor of any person other than the Agent, for the benefit of the Banks and the
Agent, except for liens permitted by the Credit Agreement.
6.0 No Transfers.
The Guarantor will not sell or offer to sell or otherwise transfer
the Collateral or any interest therein except for (i) sales of inventory in the
ordinary course of business, (ii) sales or other
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dispositions of obsolescent items of equipment in the ordinary course of
business consistent with past practices, and (iii) as otherwise permitted by the
Credit Agreement.
7.0 Maintenance of Collateral; Compliance with Law.
The Guarantor will keep the Collateral in good order and repair and
will not use the same in violation of law or any policy of insurance thereon,
except where the failure to do so would not reasonably be expected to have a
Material Adverse Effect. The Agent, or its designee, may inspect, wherever
located, the Collateral at such reasonable times and intervals as the Agent may
request. The Guarantor will pay promptly when due all taxes, assessments,
governmental charges and levies upon the Collateral or incurred in connection
with the use or operation of such Collateral or incurred in connection with this
Agreement, except as permitted by Section 8.8 of the Credit Agreement. The
Guarantor has at all times operated, and the Guarantor will continue to operate,
its business in compliance with all applicable provisions of federal, provincial
and local statutes and ordinances dealing with the control, shipment, storage or
disposal of hazardous materials or substances, except where the failure to do so
would not reasonably be expected to have a Material Adverse Effect.
8.0 Collateral Protection Expenses; Preservation of Collateral.
8.1 Expenses Incurred by Agent.
In its discretion, the Agent may discharge taxes and other
encumbrances at any time levied or placed on any of the Collateral,
make repairs thereto and pay any necessary filing fees. The
Guarantor agrees to reimburse the Agent on demand for any and all
expenditures so made. The Agent shall have no obligation to the
Guarantor to make any such expenditures, nor shall the making
thereof relieve the Guarantor of any default.
8.2 Agent's Obligations and Duties.
Anything herein to the contrary notwithstanding, the Guarantor shall
remain liable under each contract or agreement comprised in the
Collateral to be observed or performed by the Guarantor thereunder.
Neither the Agent nor any Bank shall have any obligation or
liability under any such contract or agreement by reason of or
arising out of this Agreement or the receipt by the Agent or any
Bank of any payment relating to any of the Collateral, nor shall the
Agent or any Bank be obligated in any manner to perform any of the
obligations of the Guarantor under or pursuant to any such contract
or agreement, to make inquiry as to the nature or sufficiency of any
payment received by the Agent or any Bank in respect of the
Collateral or as to the sufficiency of any performance by any party
under any such contract or agreement, to present or file any claim,
to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to the Agent or
to which the Agent or any Bank may be entitled at any time or times.
The Agent's sole duty with respect to the custody, safe keeping and
physical preservation of the Collateral in its possession shall be
to deal
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with such Collateral in the same manner as the Agent deals with
similar property for its own account.
9.0 Securities and Deposits.
The Agent may at any time during an Event of Default, at its option,
transfer to itself or any nominee any securities constituting
Collateral, receive any income thereon and hold such income as
additional Collateral or apply it to the Obligations. The Agent may
at any time during an Event of Default demand, xxx for, collect, or
make any settlement or compromise which it deems desirable with
respect to the Collateral. Regardless of the adequacy of Collateral
or any other security for the Obligations, any deposits or other
sums at any time credited by or due from the Agent or any Bank to
the Guarantor may at any time be applied to or set off against any
of the Obligations.
10.0 Notification to Account Debtors and Other Obligors.
If an Event of Default shall have occurred and be continuing, the
Guarantor shall, at the request of the Agent, notify account debtors
on accounts, chattel paper and general intangibles of the Guarantor
pledged by it hereunder and obligors on instruments pledged by it
hereunder for which the Guarantor is an obligee of the security
interest of the Agent in any account, chattel paper, general
intangible or instrument and that payment thereof is to be made
directly to the Agent or to any financial institution designated by
the Agent as the Agent's agent therefor (except to the extent that
such payment is already being made to the Agent to the satisfaction
of the Agent), and the Agent may itself, if a Default or an Event of
Default shall have occurred and be continuing, with notice to the
Guarantor, so notify such account debtors and obligors. After the
making of such a request or the giving of any such notification, the
Guarantor shall hold any proceeds of collection received by the
Guarantor of accounts, chattel paper, general intangibles and
instruments pledged by it hereunder as trustee for the Agent, for
the benefit of the Banks and the Agent, without commingling the same
with other funds of the Guarantor and shall turn the same over to
the Agent in the identical form received, together with any
necessary endorsements or assignments. The Agent shall apply the
proceeds of collection received by the Agent of accounts, chattel
paper, general intangibles and instruments pledged by the Guarantor
to the Obligations in accordance with the Credit Agreement, such
proceeds to be immediately entered after final payment in cash or
solvent credits of the items giving rise to them.
11.0 Further Assurances.
The Guarantor, at its own expense, shall do, make, execute and
deliver all such additional and further acts, things, deeds,
assurances and instruments as the Agent may reasonably require more
completely to vest in and assure to the Agent and the Banks their
respective rights hereunder or in any of the Collateral, including,
without limitation, (i) executing, delivering and, where
appropriate, filing financing statements
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and financing change statements under the PPSA, (ii) if available,
after taking reasonable steps within the powers of the Guarantor,
obtaining governmental and other third party consents and approvals,
including without limitation any consent of any licensor, lessor or
other applicable party referred to in this Agreement, and (iii)
obtaining waivers from mortgagees and landlords.
12.0 Power of Attorney.
12.1 Appointment and Powers of Agent.
The Guarantor hereby irrevocably constitutes and appoints the Agent
and any officer or agent thereof, with full power of substitution,
as its true and lawful attorneys-in-fact with full irrevocable power
and authority in the place and stead of the Guarantor or in the
Agent's own name, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any
and all documents and instruments that may be necessary or desirable
to accomplish the purposes of this Agreement and, without limiting
the generality of the foregoing, hereby gives said attorneys the
power and right, on behalf of the Guarantor, without notice to or
assent by the Guarantor (it being agreed that no such Person shall
exercise such power except during the continuance of an Event of
Default), upon the occurrence and during the continuance of a
Default or an Event of Default, generally to sell, transfer, pledge,
make any agreement with respect to or otherwise deal with any of the
Collateral in such manner as is consistent with the PPSA and as
fully and completely as though the Agent were the absolute owner
thereof for all purposes, and to do at the Guarantor's expense, at
any time, or from time to time, all acts and things which the Agent
deems necessary to protect, preserve or realize upon the Collateral
and the Agent's security interest therein, in order to effect the
intent of this Agreement, all as fully and effectively as the
Guarantor might do, including, without limitation (i) the filing and
prosecuting of registration and transfer applications with the
appropriate federal or local agencies or authorities with respect to
trademarks, copyrights ad patentable inventions and processes and
(ii) the execution, delivery and recording, in connection with any
sale or other disposition of any Collateral, of the endorsements,
assignments or other instruments of conveyance or transfer with
respect to such Collateral.
12.2 Ratification by Guarantor.
To the extent permitted by law, the Guarantor hereby ratifies all
that said attorneys shall lawfully do or cause to be done by virtue
hereof. This power of attorney is a power coupled with an interest
and shall be irrevocable.
12.3 No Duty on Agent.
The powers conferred on the Agent hereunder are solely to protect
the interests of the Agent and the Banks in the Collateral and shall
not impose any duty upon the Agent to
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exercise any such powers. The Agent shall be accountable only for
the amounts that it actually receives as a result of the exercise of
such powers and neither it nor any of its officers, directors,
employees or agents shall be responsible to the Guarantor for any
act or failure to act, except for the Agent's own gross negligence
or willful misconduct.
13.0 Remedies.
If an Event of Default shall have occurred and be continuing, the
Agent may, with notice to the Guarantor, declare this Agreement to be in
default, and the Agent shall thereafter have in any jurisdiction in which
enforcement hereof is sought, in addition to all other rights and remedies, the
rights and remedies of a secured party under the PPSA, including, without
limitation, the right to take possession of the Collateral, and for that purpose
the Agent may, so far as the Guarantor can give authority therefor, enter upon
any premises on which the Collateral may be situated and remove the same
therefrom. The Agent may in its discretion require the Guarantor to assemble all
or any part of the Collateral at such location or locations of the Guarantor's
principal office(s) or at such other locations as the Agent may designate.
Unless the Collateral is perishable or threatens to decline speedily in value or
is of a type customarily sold on a recognized market, the Agent shall give to
the Guarantor at least fifteen (15) Business Days prior written notice of the
time and place of any public sale of Collateral or of the time after which any
private sale or any other intended disposition is to be made. The Guarantor
hereby acknowledges that fifteen (15) Business Days prior written notice of such
sale or sales shall be reasonable notice. In addition, the Guarantor waives any
and all rights that it may have to a judicial hearing in advance of the
enforcement of any of the Agent's rights hereunder, including, without
limitation, its right following an Event of Default to take immediate possession
of the Collateral and to exercise its rights with respect thereto. To the extent
that any of the Obligations are to be paid or performed by a person other than
the Guarantor, the Guarantor waives and agrees not to assert any rights or
privileges which it may have under the PPSA.
14.0 No Waiver, etc.
The Guarantor waives demand, notice, protest, notice of acceptance
of this Agreement, notice of loans made, credit extended, Collateral received or
delivered or other action taken in reliance hereon and all other demands and
notices of any description. With respect to both the Obligations and the
Collateral, the Guarantor assents to any extension or postponement of the time
of payment or any other indulgence, to any substitution, exchange or release of
or failure to perfect any security interest in any Collateral, to the addition
or release of any party or person primarily or secondarily liable, to the
acceptance of partial payment thereon and the settlement, compromising or
adjusting of any thereof, all in such manner and at such time or times as the
Agent may deem advisable. The Agent shall have no duty as to the collection or
protection of the Collateral or any income thereon, nor as to the preservation
of rights against prior parties, nor as to the preservation of any rights
pertaining thereto beyond the safe custody thereof as set forth in this
Agreement. The Agent shall not be deemed to have waived any of its rights upon
or under the Obligations or the Collateral unless such waiver shall be in
writing and signed by the Agent with the consent of the Majority Banks. No delay
or omission on the part of the Agent in exercising any right shall operate as a
waiver of such right or any other right. A waiver on any one occasion shall not
be construed as a bar to or waiver of any right on any future occasion. All
rights
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and remedies of the Agent with respect to the Obligations or the Collateral,
whether evidenced hereby or by any other instrument or papers, shall be
cumulative and may be exercised singularly, alternatively, successively or
concurrently at such time or at such times as the Agent deems expedient.
15.0 Marshalling.
Neither the Agent nor any Bank shall be required to marshal any
present or future collateral security (including but not limited to this
Agreement and the Collateral) for, or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security or other
assurances of payment in any particular order, and all of the rights of the
Agent hereunder and of the Agent or any Bank in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, the Guarantor hereby agrees that it will not invoke any law relating to the
marshalling of collateral which might cause delay in or impede the enforcement
of the Agent's rights under this Agreement or under any other instrument
creating or evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
the Guarantor hereby irrevocably waives the benefits of all such laws.
16.0 Proceeds of Dispositions; Expenses.
The Guarantor promises to pay to the Agent on demand any and all
reasonable expenses, including reasonable attorneys' fees and disbursements,
incurred or paid by the Agent in protecting, preserving or enforcing the Agent's
rights under or in respect of any of the Obligations or any of the Collateral.
After deducting all of said expenses, the residue of any proceeds of collection
or sale of the Obligations or Collateral shall, to the extent actually received
in cash, be applied to the payment of the Obligations in such order or
preference as is provided in the Credit Agreement, proper allowance and
provision being made for any Obligations not then due. Upon the final payment
and satisfaction in full of all of the Obligations and after making any payments
required by the PPSA, any excess shall be returned to the Guarantor, and the
Guarantor shall remain liable for any deficiency in the payment of the
Obligations.
17.0 Overdue Amounts.
Until paid, all amounts due and payable by the Guarantor hereunder
shall be a debt secured by the Collateral and shall bear, whether before or
after judgment, interest at the rate of interest for overdue principal set forth
in the Credit Agreement.
18.0 Termination
At such time as all of the Obligations have been finally paid and
satisfied in full in cash and the commitments have been terminated, this
Agreement shall terminate and the Agent shall, upon the written request and at
the expense of the Guarantor, execute and deliver to the Guarantor all releases,
assignments and other instruments as may be necessary or proper to terminate the
Agent's security
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interest granted hereunder, as fully as if this Agreement had not been made,
subject to any disposition of all or any part thereof that may have been made by
the Agent pursuant hereto. Upon the sale of any Collateral in accordance with
the provisions of the Credit Agreement, the Agent shall, upon the written
request and at the expense of the Guarantor, execute and deliver to the
Guarantor, all releases, assignments and other instruments as may be necessary
or proper to terminate the Agent's security interest in such Collateral.
Notwithstanding the foregoing, this Agreement shall continue to be effective or
be reinstated, as the case may be, if at any time any amount received by the
Agent, any Co-Agent or any Bank in respect of the Obligations is rescinded or
must otherwise be restored or returned by the Agent, any Co-Agent or any Bank
upon insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower, upon the appointment of any intervenor or conservator of, or trustee
or similar official for the Borrower or any substantial part of its assets, or
otherwise, all as though such payments had not been made.
19.0 Governing Law; Consent to Jurisdiction.
THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE PROVINCE
OF ONTARIO. The Guarantor agrees that any suit for the enforcement of this
Agreement may be brought in the courts of the Province of Ontario and consents
to the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon the Guarantor by mail at the address specified in the
Credit Agreement. The Guarantor hereby waives any objection that it may now or
hereafter have to the venue of any such suit or any such court or that such suit
is brought in an inconvenient court.
20.0 Savings Clause.
Nothing contained in this Agreement shall be construed to narrow the
scope of the Agent's security interest in any of the Collateral or the
perfection or priority thereof or to impair or otherwise limit any of the
rights, powers, privileges or remedies of the Agent or any Bank hereunder.
21.0 Miscellaneous.
The headings of each section of this Agreement are for convenience
only and shall not define or limit the provisions thereof. This Agreement and
all rights and obligations hereunder shall be binding upon the Guarantor and its
respective successors and assigns, and shall inure to the benefit of the Agent,
the Banks and their respective successors and assigns. If any term of this
Agreement shall be held to be invalid, illegal or unenforceable, the validity of
all other terms hereof shall in no way be affected thereby, and this Agreement
shall be construed and be enforceable as if such invalid, illegal or
unenforceable term had not been included herein. The Guarantor acknowledges
receipt of a copy of this Agreement.
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IN WITNESS WHEREOF, intending to be legally bound, the Guarantor has
caused this Agreement to be duly executed as of the date first above written.
CANADIAN DRAWN STEEL COMPANY INC.
Per:
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Name:
Title:
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Name:
Title:
I/We have authority to bind the
Corporation.
Accepted:
BANKBOSTON N.A., as Agent
Per:
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Name:
Title:
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Name:
Title:
I/We have authority to bind the Agent.
