Exhibit 4(e)
US SECURITY AGREEMENT
This US SECURITY AGREEMENT ("US Security Agreement"), dated as of
May 15, 2003, among the US Grantors listed on the signature pages hereof and
those additional entities that hereafter become parties hereto by executing
the form of Supplement attached hereto as Annex 1 (collectively as "US
Grantors" and individually as a "US Grantor"), and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, individually and as agent (in such
capacity, "Agent") for itself, General Electric Capital Canada Inc., as
Canadian agent ("Canadian Agent") and the lenders from time to time signatory
to the Credit Agreement hereinafter defined.
W I T N E S S T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of the
date hereof by and among Xxxxxx, Inc., a Delaware corporation, the other
Credit Parties (as defined in the Credit Agreement) signatory thereto, Agent,
Canadian Agent and the other Persons signatory thereto from time to time as
lenders ("Lenders") (including all annexes, exhibits and schedules thereto, as
from time to time amended, restated, supplemented or otherwise modified, the
"Credit Agreement"), US Lenders have agreed to make the Loans (as defined in
the Credit Agreement) to, and to incur Letter of Credit Obligations (as
defined in the Credit Agreement) on behalf of US Borrowers (as defined in the
Credit Agreement), and Canadian Lenders have agreed to make Loans to Canadian
Borrowers;
WHEREAS, in order to induce Agent, Canadian Agent and Lenders to
enter into the Credit Agreement and other Loan Documents and to induce Lenders
to make the Loans and to incur Letter of Credit Obligations as provided for in
the Credit Agreement, (i) US Borrowers have agreed to grant a continuing Lien
(as defined in the Credit Agreement) on the Collateral (as hereinafter
defined) to secure the Obligations (as defined in the Credit Agreement) and to
secure their obligations under the US Guaranty and (ii) US Grantors that are
Guarantors have agreed to grant a continuing Lien on the Collateral to secure
their obligations under the US Guaranty and the other Loan Documents (as
defined in the Credit Agreement) ((i) and (ii) hereinafter, collectively, 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
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 or in Annex A thereto. All
other terms contained in this US 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) "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) To secure the prompt and complete payment, performance and
observance of all of the Secured Obligations (specifically including, without
limitation, each US Grantor's Obligations arising under the cross- guaranty
provisions of Section 12 of the Credit Agreement), each US Grantor hereby
grants, assigns, conveys, mortgages, pledges, hypothecates and transfers to
Agent, for itself, Canadian Agent and the benefit of Lenders, a Lien upon all
of its right, title and interest in, to and under all personal property and
other assets, whether now owned by or owing to, or hereafter acquired by or
arising in favor of such US Grantor (including under any trade names, styles
or derivations thereof), and whether owned or consigned by or to, or leased
from or to, such US Grantor, and regardless of where located (all of which
being hereinafter collectively referred to as the "Collateral"), including:
(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;
(viii) all Deposit Accounts, of any US Grantor, including
all Blocked Accounts, Concentration Accounts, Disbursement Accounts, and all
other bank accounts and all deposits therein;
(ix) all money, cash or cash equivalents of any US
Grantor;
(x) all Supporting Obligations and Letter-of-Credit Rights
of any US Grantor;
(xi) all commercial tort claims; 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.
Notwithstanding the foregoing, the Collateral shall not include (i) any Shared
Collateral or (ii) any other personal property and other assets to the extent
the grant by any US Grantor of a security interest pursuant to this US Security
Agreement in such personal property and other assets is prohibited by any
applicable contractual obligation or requirement of law or would give any party
thereto (other than US Grantors or Affiliates of US Grantors) the right to
terminate its obligations with respect to such personal property and other
assets (except that the foregoing limitation shall not affect, limit, restrict
or impair the grant by any US Grantor of a security interest pursuant to this
US Security Agreement in any money or other amounts due or to become due under
such personal property and other assets, including, without limitation, any
Account, Contract, agreement, Document, Instrument or indenture) and for the
purposes of the Trademarks Act (Canada), the granting of a security interest by
any US Grantor in trademarks (as defined in the Trademark Act (Canada)) under
this US Security Agreement shall be limited to a grant by such US Grantor of a
security interest in all of such US Grantor's right, title and interest in such
trademarks.
(b) In addition, to secure the prompt and complete
payment, performance and observance of the Secured Obligations and in order to
induce Agent, Canadian Agent and Lenders as aforesaid, each US Grantor hereby
grants to Agent, for itself, Canadian Agent, and the benefit of Lenders, a
right of setoff against the property of such US Grantor held by Agent,
Canadian Agent or any Lender, consisting of property described above in
Section 2(a) now or hereafter in the possession or custody of or in transit to
Agent, Canadian Agent or any Lender, for any purpose, including safekeeping,
collection or pledge, for the account of such US Grantor, or as to which such
US Grantor may have any right or power.
3. AGENT'S AND LENDERS' RIGHTS: LIMITATIONS ON AGENT'S AND LENDERS'
OBLIGATIONS.
(a) It is expressly agreed by US Grantors that, anything herein
to the contrary notwithstanding, each US 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. None
of Agent, Canadian Agent or any Lender shall have any obligation or liability
under any Contract or License by reason of or arising out of this US Security
Agreement or the granting herein of a Lien thereon or the receipt by Agent or
any Lender of any payment relating to any Contract or License pursuant hereto.
None of Agent, Canadian Agent or any Lender shall be required or obligated in
any manner to perform or fulfill any of the obligations of any US 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) Agent may at any time after an Event of Default has
occurred and is continuing (or if any rights of set-off (other than set-offs
against an Account arising under the Contract giving rise to the same Account)
or contra accounts may be asserted with respect to the
following), without prior notice to any US Grantor, notify Account Debtors and
other Persons obligated on the Collateral that Agent has a security interest
therein, and that payments shall be made directly to Agent. Upon the request
of Agent, each US 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 US Grantor
shall not give any contrary instructions to such Account Debtor or other
Person without Agent's prior written consent.
(c) Agent may at any time in Agent's own name, in the name of a
nominee of Agent or in the name of any US 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 Agent's
satisfaction, the existence, amount, terms of, and any other matter relating
to, Accounts, payment intangibles, Instruments or Chattel Paper; provided,
that prior to any such communication Agent shall endeavor to notify US
Grantors of its intended communication (unless an Event of Default has
occurred and is continuing). If a Default or Event of Default shall have
occurred and be continuing, each US Grantor, at its own expense, shall cause
the independent certified public accountants then engaged by such US Grantor
to prepare and deliver to Agent, Canadian Agent and each Lender at any time
and from time to time promptly upon Agent's request the following reports with
respect to each US Grantor: (i) a reconciliation of all Accounts; (ii) an
aging of all Accounts; (iii) trial balances; and (iv) a test verification of
such Accounts as Agent may request. Each US Grantor, at its own expense, shall
deliver to Agent the results of each physical verification, if any, which such
US 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.
4. REPRESENTATIONS AND WARRANTIES. Each US Grantor represents and
warrants that:
(a) Each US Grantor has rights in and the power to transfer
each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder
free and clear of any and all Liens other than, after giving effect to the
repayment of the Prior Lender Obligations, Permitted Encumbrances.
(b) After giving effect to the repayment of the Prior Lender
Obligations, 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) by any US Grantor in favor of Agent pursuant to this
US Security Agreement or the other Loan Documents, and (ii) in connection with
any other Permitted Encumbrances.
(c) This US Security Agreement is effective to create a valid
and continuing Lien on and, upon the filing of the appropriate financing
statements listed on Schedule I hereto, a perfected Lien in favor of Agent,
for the benefit of itself, Canadian Agent and Lenders, on the Collateral with
respect to which a Lien may be perfected by filing pursuant to the Code. Such
Lien is prior to all other Liens, except, after giving effect to the repayment
of the Prior Lender Obligations, Permitted Encumbrances that would be prior to
Liens in favor of Agent for the benefit of Agent, Canadian Agent and Lenders
as a matter of law, and is
enforceable as such as against any and all creditors of and purchasers from
any US 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 US Grantor necessary or
desirable to protect and perfect such Lien on each item of the Collateral has
been duly taken.
(d) Schedule II-A hereto lists all Instruments, Letter of Credit
Rights and Chattel Paper of each US Grantor. Except as disclosed on Schedule
II-B all action by any US Grantor necessary or desirable to protect and
perfect the Lien of Agent on each item set forth on Schedule II-A (including
the delivery of all originals thereof to Agent and the legending of all
Chattel Paper as required by Section 5(b) hereof or control of all electronic
Chattel Paper as required by Section 5(a)(vii)) has been duly taken. The Lien
of Agent, for the benefit of Agent, Canadian Agent and Lenders, on the
Collateral listed on Schedule II hereto is prior to all other Liens, except
Permitted Encumbrances that would be prior to the Liens in favor of Agent as a
matter of law, and is enforceable as such against any and all creditors of and
purchasers from any US Grantor.
(e) Each US Grantor's name as it appears in official filings in the
state of its incorporation or other organization, the type of entity of each
US Grantor (including corporation, partnership, limited partnership or limited
liability company), organizational identification number issued by each US
Grantor's state of incorporation or organization or a statement that no such
number has been issued, each US Grantor's state of organization or
incorporation, the location of each US 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-A, Schedule III-B,
Schedule III-C, Schedule III-D, Schedule III-E, Schedule III-F, Schedule
III-G, Schedule III-H, Schedule III-I, and Schedule III-J respectively,
hereto. Each US Grantor has only one state of incorporation or organization.
(f) With respect to the Accounts, except as specifically disclosed
in the most recent Collateral Report delivered to Agent (i) they represent
bona fide sales of Inventory or rendering of services to Account Debtors in
the ordinary course of each US Grantor's business and are not evidenced by a
judgment, Instrument or Chattel Paper; (ii) there are no setoffs, claims or
disputes existing or asserted with respect thereto and no US 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 US Grantor
in the ordinary course of its business for prompt payment and disclosed to
Agent; (iii) to each US Grantor's knowledge, 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 US Grantor's books and records and any invoices, statements and
Collateral Reports delivered to Agent, Canadian Agent and Lenders with respect
thereto; (iv) no US Grantor has received any notice of proceedings or actions
which are threatened or pending against any Account Debtor which might result
in any adverse change in such Account Debtor's financial condition; and (v) no
US 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
Collateral Reports which may be delivered to Agent with respect thereto are
actually and absolutely owing to such US 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
Agent as required pursuant to the terms of Annex C to the Credit Agreement;
and (z) to each US Grantor's knowledge, all Account Debtors have the capacity
to contract.
(g) With respect to any Inventory scheduled or listed on the most
recent Collateral Report delivered to Agent pursuant to the terms of this US
Security Agreement or the Credit Agreement, (i) such Inventory is located at
one of the applicable US Grantor's locations set forth on Schedule III-A,
Schedule III-B, Schedule III-C, Schedule III-D, Schedule III-E, Schedule
III-F, Schedule III-G, Schedule III-H, Schedule III-I, and Schedule III-J
hereto, as applicable, (ii) no Inventory is now, or shall at any time or times
hereafter be stored at any other location without Agent's prior consent, and
if Agent gives such consent, each applicable US Grantor will concurrently
therewith obtain, to the extent required by the Credit Agreement, bailee,
landlord and mortgagee agreements, (iii) the applicable US 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 Agent, for the benefit of Agent, Canadian Agent and
Lenders, and except for Permitted Encumbrances, (iv) except as specifically
disclosed in the most recent Collateral Report delivered to Agent, such
Inventory is Eligible Inventory of good and merchantable quality, free from
any defects, (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, and (vi) except as disclosed in the most recent
Collateral Report, the completion of manufacture, sale or other disposition of
such Inventory by Agent following an Event of Default shall not require the
consent of any Person and shall not constitute a breach or default under any
contract or agreement to which any US Grantor is a party or to which such
property is subject.
(h) No US Grantor has any interest in, or title to, any Patent,
Trademark or Copyright except as set forth in Schedule IV hereto. This US
Security Agreement is effective to create a valid and continuing Lien on and,
upon filing of the Copyright Security Agreements with the United States
Copyright Office and filing of the Patent Security Agreements and the
Trademark Security Agreements with the United State Patent and Trademark
Office, perfected Liens in favor of Agent on each US Grantor's Patents,
Trademarks and Copyrights and such perfected Liens are enforceable as such as
against any and all creditors of and purchasers from any US Grantor. Upon
filing of the Copyright Security Agreements with the United States Copyright
Office and filing of the Patent Security Agreements and the Trademark Security
Agreements with the United State Patent and Trademark Office and the filing of
appropriate financing statements listed on Schedule I hereto, all action
necessary or desirable to protect and perfect Agent's Lien on each US
Grantor's Patents, Trademarks or Copyrights shall have been duly taken.
5. COVENANTS. Each US Grantor covenants and agrees with Agent, for
the benefit of Agent, Canadian Agent and Lenders, that from and after the date
of this US 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 written
request of Agent and at the sole expense of US Grantors, each US Grantor shall
promptly and duly execute and deliver any and all such further instruments and
documents and take such further actions as Agent may deem desirable to obtain
the full benefits of this US 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 appropriate for the assignment
to or for the benefit of Agent of any License or Contract held by such US
Grantor 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 Loan Document as to those
jurisdictions that are not Uniform Commercial Code Jurisdictions.
(ii) Unless Agent shall otherwise consent in writing
(which consent may be revoked), each US Grantor shall deliver to 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. Notwithstanding the foregoing, so long as
no Event of Default shall have occurred and be continuing, the relevant US
Grantor may retain for collection in the ordinary course of business all
Chattel Paper or Instruments received by such US Grantor in the ordinary
course of business.
(iii) Each US Grantor shall, in accordance with the terms
of the Credit Agreement, obtain or use its commercially reasonable efforts to
obtain waivers or subordinations of Liens from landlords and mortgagees, and
each Credit Party shall in all instances obtain signed acknowledgements of
Agent's Liens from bailees having possession of any US Grantor's Goods that
they hold for the benefit of Agent.
(iv) If required by the terms of the Credit Agreement and
not waived by Agent in writing (which waiver may be revoked), each US Grantor
shall obtain authenticated Control Letters from each issuer of uncertificated
securities, securities intermediary, or commodities intermediary issuing or
holding any financial assets or commodities to or for any US Grantor.
(v) In accordance with Annex C to the Credit Agreement,
each US Grantor shall obtain a blocked account, lockbox or similar agreement
with each bank or financial institution holding a Deposit Account for such US
Grantor.
(vi) Each US Grantor that is or becomes the beneficiary of
a letter of credit in excess of $250,000 (or, upon request by Agent, any
letter of credit equal to or less than $250,000) shall promptly, and in any
event within two (2) Business Days after becoming a beneficiary, notify Agent
thereof and enter into a tri-party agreement with Agent and the issuer and/or
confirmation bank with respect to Letter-of-Credit Rights assigning such
Letter-of-Credit Rights to Agent and directing all payments thereunder to the
US Collection Account, all in form and substance reasonably satisfactory to
Agent.
(vii) Each US Grantor shall take all steps necessary to
grant 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.
(viii) Each US Grantor hereby irrevocably authorizes 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 US Grantor
or words of similar effect, 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 US Grantor is an
organization, the type of organization and any organization identification
number issued to such US 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 US Grantor agrees to furnish any such
information to Agent promptly upon request. Each US Grantor also ratifies its
authorization for 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 US Grantor shall promptly, and in any event
within two (2) Business Days after the same is acquired by it, notify Agent of
any commercial tort claim (as defined in the Code) acquired by it and unless
otherwise consented by Agent, such US Grantor shall enter into a supplement to
this US Security Agreement, granting to Agent a Lien in such commercial tort
claim.
(b) Maintenance of Records. US 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. US Grantors shall xxxx their books and records pertaining
to the Collateral to evidence this US Security Agreement and the Liens granted
hereby. If any US Grantor retains possession of any Chattel Paper or
Instruments with 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 General Electric
Capital Corporation, as Agent, for the benefit of Agent, Canadian Agent and
certain Lenders."
(c) Covenants Regarding Patent, Trademark and Copyright
Collateral.
(i) US Grantors shall notify Agent immediately if they
know or have reason to know that any application or registration relating to
any Patent, Trademark or Copyright (now or hereafter existing) may become
abandoned or dedicated, or of any 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 any US Grantor's ownership of
any Patent, Trademark or Copyright, its right to register the same, or to keep
and maintain the same.
(ii) In no event shall any US Grantor, either itself or
through any agent, employee, licensee or designee, file an application for the
registration of any Patent, Trademark or Copyright with the United States
Patent and Trademark Office, the United States Copyright Office or any similar
office or agency without giving Agent written notice thereof on or before the
immediately following date with respect to which quarterly financial
statements of Holdings are due pursuant to Annex E of the Credit Agreement,
and, upon request of Agent, US Grantor shall execute and deliver any and all
Patent Security Agreements, Copyright Security Agreements or Trademark
Security Agreements as Agent may request to evidence Agent's Lien on such
Patent, Trademark or Copyright, and the General Intangibles of such US Grantor
relating thereto or represented thereby.
(iii) US Grantors shall take all actions necessary or
requested by Agent to maintain and pursue each application, to obtain the
relevant registration and to maintain the registration of each of the Patents,
Trademarks and 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 Patent, Trademark or
Copyright Collateral is infringed upon, or misappropriated or diluted by a
third party, such US Grantor shall comply with Section 5(a)(ix) of this US
Security Agreement. Such US Grantor shall, unless such US Grantor shall
reasonably determine that such Patent, Trademark or Copyright Collateral is in
no way material to the conduct of its business or operations, promptly xxx for
infringement if such US Grantor reasonably determines that such suit would
have a reasonable probability of success, misappropriation or dilution and to
recover any and all damages for such infringement, misappropriation or
dilution, and shall take such other actions as Agent shall reasonably deem
appropriate under the circumstances to protect such Patent, Trademark or
Copyright Collateral.
(d) Indemnification. In any suit, proceeding or action brought
by Agent, Canadian Agent or any Lender relating to any Collateral for any sum
owing with respect thereto or to enforce any rights or claims with respect
thereto, each US Grantor will save, indemnify and keep Agent, Canadian Agent
and Lenders 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 US 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 US Grantor, except in the
case of Agent, Canadian Agent or any Lender, to the extent such expense, loss,
or damage is attributable solely to the gross negligence or willful misconduct
of Agent, Canadian Agent or such Lender as finally determined by a court of
competent jurisdiction. All such obligations of US Grantors shall be and
remain enforceable against and only against US Grantors and shall not be
enforceable against Agent, Canadian Agent or any Lender. This indemnification
provision shall survive the termination of this US Security Agreement and the
repayment of the Secured Obligations.
(e) Compliance with Terms of Accounts, etc. In all material
respects, each US Grantor will perform and comply with all 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 US Grantor will
create, permit or suffer to exist, and each US Grantor will defend the
Collateral against, and take such other action as is necessary to remove, any
Lien on the Collateral except Permitted Encumbrances, and will defend the
right, title and interest of Agent, Canadian Agent and Lenders in and to any
of such US Grantor's rights under the Collateral against the claims and
demands of all Persons whomsoever.
(g) Limitations on Disposition. No US 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.
(h) Further Identification of Collateral. US Grantors will, if
so requested by Agent, furnish to Agent, as often as Agent requests,
statements and schedules further identifying and describing the Collateral and
such other reports in connection with the Collateral as Agent may reasonably
request, all in such detail as Agent may specify.
(i) Notices. US Grantors will advise Agent promptly, in
reasonable detail, (i) of any Lien (other than Permitted Encumbrances) 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 Loan Document.
(j) Good Standing Certificates. Not less frequently than once
during each calendar quarter, each US Grantor shall, unless Agent shall
otherwise consent, provide to Agent a certificate of good standing from its
state of incorporation or organization.
(k) No Reincorporation. Without limiting the prohibitions on
mergers involving the US Grantors contained in the Credit Agreement, no US
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 the prior written consent of Agent.
(l) Terminations; Amendments Not Authorized. Each US 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 Agent and agrees that it will not do so
without the prior written consent of Agent, subject to such US Grantor's
rights under Section 9-509(d)(2) of the Code.
(m) Authorized Terminations. Agent will promptly deliver to
each US Grantor for filing or authorize each US Grantor to prepare and file
termination statements and releases in accordance with Section 11.2(e) of the
Credit Agreement.
6. AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
On the Closing Date each US Grantor shall execute and deliver to
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 Agent, for the benefit of
Agent, Canadian Agent and Lenders, under the Power of Attorney are solely to
protect
Agent's interests (for the benefit of Agent, Canadian Agent and Lenders) in
the Collateral and shall not impose any duty upon Agent, Canadian Agent or any
Lender to exercise any such powers. 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 (b) Agent shall account for any
moneys received by Agent in respect of any foreclosure on or disposition of
Collateral pursuant to the Power of Attorney provided that none of Agent,
Canadian Agent or any Lender shall have any duty as to any Collateral, and
Agent, Canadian Agent and Lenders shall be accountable only for amounts that
they actually receive as a result of the exercise of such powers. NONE OF
AGENT, CANADIAN AGENT, LENDERS OR THEIR RESPECTIVE AFFILIATES, OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE RESPONSIBLE TO ANY US
GRANTOR FOR ANY ACT OR FAILURE TO ACT UNDER ANY POWER OF ATTORNEY OR
OTHERWISE, EXCEPT IN RESPECT OF DAMAGES ATTRIBUTABLE SOLELY TO THEIR OWN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT AS FINALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION, 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 US Security Agreement, the Credit Agreement, the other Loan
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, Agent may exercise all rights and remedies of a
secured party under the Code. Without limiting the generality of the
foregoing, each US Grantor expressly agrees that in any such event 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) to or upon such US 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 forthwith enter
upon the premises of such US Grantor where any Collateral is located through
self-help, without judicial process, without first obtaining a final judgment
or giving such US Grantor or any other Person notice and opportunity for a
hearing on Agent's claim or action and may collect, receive, assemble,
process, appropriate and realize upon the Collateral, or any part thereof, and
may 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. Agent, Canadian Agent or any Lender 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 for the benefit of Agent, Canadian
Agent and Lenders, the whole or any part of said Collateral so sold, free of
any right or equity of redemption, which equity of redemption each US Grantor
hereby releases. Such sales may be adjourned and continued from time to time
with or without notice. Agent shall have the right to conduct such sales on
any US Grantor's premises or elsewhere and shall have the right to use any US
Grantor's premises without charge for such time or times as Agent deems
necessary or advisable.
If any Event of Default shall have occurred and be continuing,
each US Grantor further agrees, at Agent's request, to assemble the Collateral
and make it available to Agent at a place or places designated by Agent which
are reasonably convenient to Agent and such US Grantor, whether at such US
Grantor's premises or elsewhere. Until Agent is able to effect a sale, lease,
or other disposition of 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 Agent. Agent shall have no obligation to any US Grantor
to maintain or preserve the rights of such US Grantor as against third parties
with respect to Collateral while Collateral is in the possession of Agent.
Agent may, if it so elects, seek the appointment of a receiver or keeper to
take possession of Collateral and to enforce any of Agent's remedies (for the
benefit of Agent, Canadian Agent and Lenders), with respect to such
appointment without prior notice or hearing as to such appointment. Agent
shall apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale to the Secured Obligations as provided in
the Credit Agreement, and only after so paying over such net proceeds, and
after the payment by Agent of any other amount required by any provision of
law, need Agent account for the surplus, if any, to any US Grantor. To the
maximum extent permitted by applicable law, each US Grantor waives all claims,
damages, and demands against Agent, Canadian Agent or any Lender 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 Agent, Canadian
Agent or such Lender as finally determined by a court of competent
jurisdiction. Each US Grantor agrees that ten (10) days prior notice by 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. US 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 Agent, Canadian
Agent or any Lender to collect such deficiency.
(b) Except as otherwise specifically provided herein, each US
Grantor hereby waives presentment, demand, protest or any notice (to the
maximum extent permitted by applicable law) of any kind in connection with
this US Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on Agent
to exercise remedies in a commercially reasonable manner, each US Grantor
acknowledges and agrees that it is not commercially unreasonable for Agent (i)
to fail to incur expenses reasonably deemed significant by Agent to prepare
Collateral for disposition or otherwise to complete raw material or work in
process into finished goods or other finished products for disposition, (ii)
to fail to obtain third party consents for access to Collateral to be disposed
of, or to obtain or, if not required by other law, to fail to obtain
governmental or third party consents for the collection or disposition of
Collateral to be collected or disposed of, (iii) to fail to exercise
collection remedies against Account Debtors or other Persons obligated on
Collateral or to remove Liens on or any adverse claims against Collateral,
(iv) to exercise collection remedies against Account Debtors and other Persons
obligated on Collateral directly or through the use of collection agencies and
other collection specialists, (v) to advertise dispositions of Collateral
through publications or media of general circulation, whether or not the
Collateral is of a specialized nature, (vi) to contact other Persons, whether
or not in the same business as the US Grantor, for expressions of interest in
acquiring all or any portion of such Collateral, (vii) to hire one or more
professional auctioneers to assist in the disposition of Collateral, whether
or not the Collateral is of a
specialized nature, (viii) to dispose of Collateral by utilizing internet
sites that provide for the auction of assets of the types included in the
Collateral or that have the reasonable capacity of doing so, or that match
buyers and sellers of assets, (ix) to dispose of assets in wholesale rather
than retail markets, (x) to disclaim disposition warranties, such as title,
possession or quiet enjoyment, (xi) to purchase insurance or credit
enhancements to insure Agent against risks of loss, collection or disposition
of Collateral or to provide to Agent a guaranteed return from the collection
or disposition of Collateral, or (xii) to the extent deemed appropriate by
Agent, to obtain the services of other brokers, investment bankers,
consultants and other professionals to assist Agent in the collection or
disposition of any of the Collateral. Each US Grantor acknowledges that the
purpose of this Section 7(c) is to provide non- exhaustive indications of what
actions or omissions by Agent would not be commercially unreasonable in
Agent's exercise of remedies against the Collateral and that other actions or
omissions by Agent shall not be deemed commercially unreasonable solely on
account of not being indicated in this Section 7(c). Without limitation upon
the foregoing, nothing contained in this Section 7(c) shall be construed to
grant any rights to any US Grantor or to impose any duties on Agent that would
not have been granted or imposed by this US Security Agreement or by
applicable law in the absence of this Section 7(c).
(d) Agent, Canadian Agent and Lenders shall not be required to
make any demand upon, or pursue or exhaust any of their rights or remedies
against, any US 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 their rights or remedies with respect to any Collateral
therefor or any direct or indirect guarantee thereof. Agent, Canadian Agent
and Lenders 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 and their rights and
remedies hereunder or under any other Loan Document shall be cumulative. To
the extent it may lawfully do so, each US Grantor absolutely and irrevocably
waives and relinquishes the benefit and advantage of, and covenants not to
assert against Agent, Canadian Agent or any Lender, 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 US Security Agreement, or otherwise.
8. GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY COLLATERAL. For the
purpose of enabling 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
Agent shall be lawfully entitled to exercise such rights and remedies, each US
Grantor hereby grants to Agent, for the benefit of Agent, Canadian Agent and
Lenders, effective as of the occurrence and during the continuance of an Event
of Default, an irrevocable, nonexclusive license (exercisable without payment
of royalty or other compensation to such US Grantor) to use, license or
sublicense any Intellectual Property now owned or hereafter acquired by such
US 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. LIMITATION ON AGENT'S, CANADIAN AGENT'S AND LENDERS' DUTY IN
RESPECT OF COLLATERAL. Agent, Canadian Agent and each Lender shall use
reasonable care with respect to the Collateral in its possession or under its
control. None of Agent, Canadian Agent or any Lender shall 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 Agent, Canadian Agent or such Lender, or
any income thereon or as to the preservation of rights against prior parties
or any other rights pertaining thereto.
10. REINSTATEMENT. This US Security Agreement shall remain in full
force and effect and continue to be effective should any petition be filed by
or against any US Grantor for liquidation or reorganization, should any US
Grantor become insolvent or make an assignment for the benefit of any creditor
or creditors or should a receiver, interim receiver, receiver and manager or
trustee be appointed for all or any significant part of any US Grantor's
assets, and shall continue to be effective or be reinstated, as the case may
be, if at any time payment and performance of the Secured Obligations, or any
part thereof, is, pursuant to applicable law, rescinded or reduced in amount,
or must otherwise be restored or returned by any obligee of the Secured
Obligations, whether as a "voidable preference," "fraudulent conveyance," or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored
or returned, the Secured Obligations shall be reinstated and deemed reduced
only by such amount paid and not so rescinded, reduced, restored or returned.
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 US
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 Section 11.10 of the
Credit Agreement.
12. SEVERABILITY. Whenever possible, each provision of this US
Security Agreement shall be interpreted in a manner as to be effective and
valid under applicable law, but if any provision of this US 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 US Security Agreement. This US Security Agreement is to be read,
construed and applied together with the Credit Agreement and the other Loan
Documents which, taken together, set forth the complete understanding and
agreement of Agent, Canadian Agent, Lenders and US Grantors with respect to
the matters referred to herein and therein.
13. NO WAIVER; CUMULATIVE REMEDIES. None of Agent, Canadian Agent or
any Lender shall by any act, delay, omission or otherwise be deemed to have
waived any of its rights or remedies hereunder, and no waiver shall be valid
unless in writing, signed by Agent and then only to the extent therein set
forth. A waiver by Agent of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which Agent would
otherwise have had on any future occasion. No failure to exercise nor any
delay in exercising on the part of Agent, Canadian Agent or any Lender, 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 US Security
Agreement may be waived, altered, modified or amended except by an instrument
in writing, duly executed by Agent and US Grantors.
14. LIMITATION BY LAW. All rights, remedies and powers provided in
this US 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 US Security Agreement are intended to be subject 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 US 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. TERMINATION OF THIS US SECURITY AGREEMENT. Subject to Section 10
hereof, this US Security Agreement shall terminate upon the Termination Date.
16. SUCCESSORS AND ASSIGNS. This US Security Agreement and all
obligations of US Grantors hereunder shall be binding upon the successors and
assigns of each US Grantor (including any debtor-in-possession on behalf of
such US Grantor) and shall, together with the rights and remedies of Agent,
for the benefit of itself, Canadian Agent and Lenders, hereunder, inure to the
benefit of Agent, Canadian Agent and Lenders, 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 impair the Lien granted to Agent, for the benefit of
Agent, Canadian Agent and Lenders, hereunder. No US Grantor may assign, sell,
hypothecate or otherwise transfer any interest in or obligation under this US
Security Agreement.
17. COUNTERPARTS. This US Security Agreement may be authenticated in
any number of separate counterparts, each of which shall collectively and
separately constitute one agreement. This US Security Agreement may be
authenticated by manual signature, facsimile or, if approved in writing by
Agent, electronic means, all of which shall be equally valid.
18. GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF
THE LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS US SECURITY AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN THAT STATE, AND ANY APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA. EACH US GRANTOR HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN NEW YORK COUNTY, CITY OF NEW YORK, NEW YORK, SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN US GRANTORS, AGENT, CANADIAN
AGENT AND LENDERS PERTAINING TO THIS US SECURITY AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS US SECURITY
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, PROVIDED, THAT AGENT, CANADIAN
AGENT, LENDERS AND US GRANTORS ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK COUNTY, AND,
PROVIDED, FURTHER, NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO
PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
SECURED OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
AGENT AND US GRANTORS MAY MAKE ANY COUNTERCLAIMS RELATING TO THE SAME MATTER,
REQUESTS FOR EQUITABLE RELIEF RELATING TO THE SAME MATTER OR AFFIRMATIVE
DEFENSES IN CONNECTION THEREWITH. EACH US GRANTOR EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN
ANY SUCH COURT, AND EACH US GRANTOR HEREBY WAIVES ANY OBJECTION WHICH IT MAY
HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH US GRANTOR HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY
SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND
OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH US
GRANTOR AT THE ADDRESS SET FORTH ON ANNEX I TO THE CREDIT AGREEMENT AND THAT
SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT
THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE
PREPAID.
19. WAIVER OF JURY TRIAL. THE PARTIES HERETO KNOWINGLY WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE
ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG AGENT,
CANADIAN AGENT, LENDERS, AND US GRANTORS ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED IN CONNECTION WITH,
THIS US SECURITY AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO.
20. SECTION TITLES. The Section titles contained in this US 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 US Security Agreement. In the
event an ambiguity or question of intent or interpretation arises, this US
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 US
Security Agreement.
22. ADVICE OF COUNSEL. Each of the parties represents to each other
party hereto that it has discussed this US Security Agreement and,
specifically, the provisions of Section 18 and Section 19, with its counsel.
23. BENEFIT OF LENDERS. All Liens granted or contemplated hereby
shall be for the benefit of Agent, individually, Canadian Agent and Lenders,
and all proceeds or payments realized from Collateral in accordance herewith
shall be applied to the Secured Obligations in accordance with the terms of
the Credit Agreement.
24. NEW SUBSIDIARIES. To the extent required pursuant to Section
5.13 of the Credit Agreement, any new United States domestic Subsidiary of any
Credit Party is required to enter into this US Security Agreement by executing
and delivering in favor of Agent an instrument in the form of Annex 1 attached
hereto. Upon the execution and delivery of Annex 1 by such new United States
domestic Subsidiary, such United States domestic Subsidiary shall become a US
Grantor hereunder with the same force and effect as if originally named as a
US Grantor herein. The execution and delivery of any instrument addition an
additional US Grantor as a party to this US Security Agreement shall not
require the consent of any US Grantor hereunder. The rights and obligations of
each US Grantor hereunder shall remain in full force and effect
notwithstanding the addition of any new US Grantor hereunder.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of the parties hereto has caused this US
Security Agreement to be executed and delivered by its duly authorized officer
as of the date first set forth above.
US GRANTORS: XXXXXX, INC., a Delaware corporation
By:_____________________________
Name:___________________________
Title:__________________________
XXXXXX INTERNATIONAL, INC., a
Delaware corporation
By:_____________________________
Name:___________________________
Title:__________________________
FABTEK CORPORATION, a Michigan
corporation
By:_____________________________
Name:___________________________
Title:__________________________
GEAR PRODUCTS, INC., an Oklahoma
corporation
By:_____________________________
Name:___________________________
Title:__________________________
XXXXX INDUSTRIES, INC., a Kansas
corporation
By:_____________________________
Name:___________________________
Title:__________________________
XXXXXXXXX MANUFACTURING CORPORATION,
a Delaware corporation
By:_____________________________
Name:___________________________
Title:__________________________
WINDSOR FORESTRY TOOLS LLC, a
Tennessee limited liability company
By: Xxxxxx, Inc., its sole member
By:_____________________________
Name:___________________________
Title:__________________________
4520 CORP., INC., a Delaware
corporation
By:_____________________________
Name:___________________________
Title:__________________________
OMARK PROPERTIES, INC., an Oregon
corporation
By:_____________________________
Name:___________________________
Title:__________________________
BI, L.L.C., a Delaware limited
liability company
By: Xxxxxx, Inc., its managing
member
By:_____________________________
Name:___________________________
Title:__________________________
AGENT: GENERAL ELECTRIC CAPITAL
CORPORATION, AS AGENT
By:_____________________________
Name:___________________________
Title: duly authorized signatory
EXHIBIT A
POWER OF ATTORNEY
This Power of Attorney is executed and delivered by
______________________, a _____________________ corporation ("US Grantor") to
General Electric Capital Corporation, a Delaware corporation (hereinafter
referred to as "Attorney"), as Agent for itself, General Electric Capital
Canada Inc., as Canadian agent and the lenders from time to time signatory to
the Credit Agreement, under a Credit Agreement and that certain US Security
Agreement, both dated as of May 15, 2003, and other related documents (the
"Loan Documents"). No person to whom this Power of Attorney is presented, as
authority for Attorney to take any action or actions contemplated hereby,
shall be required to inquire into or seek confirmation from US Grantor as to
the authority of Attorney to take any action described below, or as to the
existence of or fulfillment of any condition to this Power of Attorney, which
is intended to grant to Attorney unconditionally the authority to take and
perform the actions contemplated herein, and US Grantor irrevocable waives any
right to commence any suit or action, in law or equity, against any person or
entity which acts in reliance upon or acknowledges the authority granted under
this Power of Attorney. The power of attorney granted hereby is coupled with
an interest, and may not be revoked or canceled by US Grantor without
Attorney' s written consent. Capitalized terms used herein and not defined
herein shall have the meanings ascribed to them in the US Security Agreement.
US Grantor hereby irrevocably constitutes and appoints Attorney (and
all officers, employees or agents designated by Attorney), with full power of
substitution, as US Grantor's true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of US Grantor and in
the name of US Grantor or in its own name, from time to time in Attorney's
discretion, to take any and all appropriate action and to execute and deliver
any and all documents and instruments which may be necessary or desirable to
accomplish the purposes of the Loan Documents and, without limiting the
generality of the foregoing, US Grantor hereby grants to Attorney the power
and right, on behalf of US Grantor, without notice to or assent by US Grantor,
and at any time, to do the following: (a) change the mailing address of US
Grantor, open a post office box on behalf of US Grantor, open mail for US
Grantor, and ask, demand, collect, give acquittances and receipts for, take
possession of, endorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications, and notices in connection with any property of US Grantor; (b)
effect any repairs to any asset of US Grantor, or continue or obtain any
insurance and pay all or any part of the premiums therefor and costs thereof,
and make, settle and adjust all claims under such policies of insurance, and
make all determinations and decisions with respect to such policies; (c) pay
or discharge any taxes, liens, security interests, or other encumbrances
levied or placed on or threatened against US Grantor or its property; (d)
defend any suit, action or proceeding brought against US Grantor if US Grantor
does not defend such suit, action or proceeding or if Attorney believes that
US Grantor is not pursuing such defense in a manner that will maximize the
recovery to Attorney, and settle, compromise or adjust any suit, action, or
proceeding described above and, in connection therewith, give such discharges
or releases as Attorney may deem appropriate; (e) file or prosecute any claim,
litigation, suit or proceeding in any court of
competent jurisdiction or before any arbitrator, or take any other action
otherwise deemed appropriate by Attorney for the purpose of collecting any and
all such moneys due to US Grantor whenever payable and to enforce any other
right in respect of US Grantor's property; (f) cause the certified public
accountants then engaged by US Grantor to prepare and deliver to Attorney at
any time and from time to time, promptly upon Attorney's request, the
following reports: (1) a reconciliation of all accounts, (2) an aging of all
accounts, (3) trial balances, (4) test verifications of such accounts as
Attorney may request, and (5) the results of each physical verification of
inventory; (g) communicate in its own name with any party to any Contract with
regard to the assignment of the right, title and interest of such US Grantor
in and under the Contracts and other matters relating thereto; (h) to file
such financing statements with respect to the US Security Agreement, with or
without US Grantor's signature, or to file a photocopy of the US Security
Agreement in substitution for a financing statement, as Agent may deem
appropriate and to execute in US Grantor's name such financing statements and
amendments thereto and continuation statements which may require the US
Grantor's signature; and (i) execute, in connection with any sale provided for
in any Loan Document, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral and to otherwise direct
such sale or resale, all as though Attorney were the absolute owner of the
property of US Grantor for all purposes, and to do, at Attorney's option and
US Grantor's expense, at any time or from time to time, all acts and other
things that Attorney reasonably deems necessary to perfect, preserve, or
realize upon US Grantor's property or assets and Attorney's Liens thereon, all
as fully and effectively as US Grantor might do. US Grantor hereby ratifies,
to the extent permitted by law, all that said Attorney shall lawfully do or
cause to be done by virtue hereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Power of Attorney is executed by US
Grantor, and US Grantor has caused its seal to be affixed pursuant to the
authority of its board of directors this _____________ day of
______________________.
[ US GRANTOR
]
By:______________________________
Name:____________________________
Title:___________________________
NOTARY PUBLIC CERTIFICATE
On this _____ day of ______________, 2003, [officer's name] who is
personally known to me appeared before me in his/her capacity as the [title]
of [US Grantor] ("Company") and executed on behalf of Company the Power of
Attorney in favor of General Electric Capital Corporation to which this
Certificate is attached.
---------------------------------
Notary Public
ANNEX 1
FORM OF SUPPLEMENT
Supplement No. ____ (this "Supplement") dated as of _______________,
20__, to the US Security Agreement dated as of May 15, 2003 (as amended,
restated, supplemented or otherwise modified from time to time, the "US
Security Agreement") among US Grantors listed on the signature pages thereof
and those additional entities that thereafter become parties thereto
(collectively as "US Grantors" and individually as a "US Grantor"), and
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, individually and
as agent (in such capacity, "Agent") for itself, General Electric Capital
Canada Inc., as Canadian agent ("Canadian Agent") and the lenders from time to
time signatory to the Credit Agreement thereinafter defined.
W I T N E S S E T H:
WHEREAS, Xxxxxx, Inc., a Delaware corporation, the other Credit
Parties (as defined in the Credit Agreement) signatory thereto, Agent,
Canadian Agent and the other Persons signatory thereto from time to time as
lenders ("Lenders") are parties to that certain Credit Agreement dated as of
May 15, 2003 (including all annexes, exhibits and schedules thereto, as from
time to time amended, restated, supplemented or otherwise modified, the
"Credit Agreement"); and
WHEREAS, capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the US Security
Agreement; and
WHEREAS, in order to induce Agent, Canadian Agent and Lenders to
enter into the Credit Agreement and other Loan Documents and to induce Lenders
to make the Loans and to incur Letter of Credit Obligations as provided for in
the Credit Agreement, (i) US Borrowers have agreed to grant a continuing Lien
(as defined in the Credit Agreement) on the Collateral (as hereinafter
defined) to secure the Obligations (as defined in the Credit Agreement) and to
secure their obligations under the US Guaranty and (ii) US Grantors that are
Guarantors have agreed to grant a continuing Lien on the Collateral to secure
their obligations under the US Guaranty and the other Loan Documents (as
defined in the Credit Agreement) ((i) and (ii) hereinafter, collectively, the
"Secured Obligations");
WHEREAS, pursuant to Section 5.13 of the Credit Agreement, new
United States domestic Subsidiaries of any Credit Party, must execute and
deliver certain Loan Documents, including the US Security Agreement, and the
execution of the US Security Agreement by the undersigned new US Grantor or US
Grantors (collectively, "New US Grantors") may be accomplished by the
execution of this Supplement in favor of Agent for the benefit of itself,
Canadian Agent, and Lenders;
NOW, THEREFORE, for and in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, New US Grantor hereby agrees as follows:
1. In accordance with Section 24 of the US Security Agreement, New
US Grantor, by its signature below, becomes a "US Grantor" under the US
Security Agreement with the same force and effect as if originally named
therein as a "US Grantor" and New US Grantor hereby (a) agrees to all of the
terms and provisions of the US Security Agreement applicable to it as a "US
Grantor" thereunder and (b) represents and warrants that the representations
and warranties made by it as a "US Grantor" thereunder are true and correct on
and as of the date hereof. In furtherance of the foregoing, New US Grantor, as
security for the payment and performance in full of the Secured Obligations,
does hereby grant, assign, convey, mortgage, pledge, hypothecate and transfers
to Agent, for the benefit of itself, Canadian Agent and Lenders, a Lien upon
all of its right, title and interest in, to and under all personal property
and other assets, whether now owned by or owing to, or hereafter acquired by
or arising in favor of New US Grantor to secure the prompt and complete
payment, performance and observance of the Secured Obligations. Schedule I,
"Filing Jurisdictions," Schedule II, "Instruments, Chattel Paper and Letter of
Credit Rights," Schedule III, "Collateral Locations" Schedule IV, "Patents,
Trademarks And Copyrights" attached hereto supplements Schedule I, Schedule
II-A, Schedule III-A, Schedule III-B, Schedule III-C, Schedule III-D, Schedule
III-E, Schedule III-F, Schedule III-G, Schedule III-H, Schedule III-I, and
Schedule III-J, respectively, to the US Security Agreement and shall be deemed
a part thereof for all purposes of the US Security Agreement. Each reference
to a "US Grantor" in the US Security Agreement shall be deemed to include the
New US Grantor. The US Security Agreement is incorporated herein by reference.
2. New US Grantor represents and warrants to Agent, Canadian Agent
and Lenders that this Supplement has been duly executed and delivered by New
US Grantor and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
3. This Supplement may be executed in any number of counterparts,
each of which shall collectively and separately constitute one and the same
agreement. This Supplement may be authenticated by manual signature, facsimile
or, if approved in writing by Agent, electronic means, all of which shall be
equally valid.
4. Except as expressly supplemented hereby, the US Security
Agreement shall remain in full force and effect.
5. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN
DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, THIS SUPPLEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE,
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH US GRANTOR
HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW
YORK COUNTY, CITY OF NEW YORK, NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN US GRANTORS, AGENT, CANADIAN
AGENT AND LENDERS PERTAINING TO THIS SUPPLEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS SUPPLEMENT OR
ANY OF THE
OTHER LOAN DOCUMENTS, PROVIDED, THAT AGENT, CANADIAN AGENT, LENDERS
AND US GRANTORS ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK COUNTY, AND, PROVIDED, FURTHER,
NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO
REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE SECURED OBLIGATIONS,
OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT AND US
GRANTORS MAY MAKE ANY COUNTERCLAIMS RELATING TO THE SAME MATTER, REQUESTS FOR
EQUITABLE RELIEF RELATING TO THE SAME MATTER OR AFFIRMATION DEFENSES IN
CONNECTION THEREWITH. EACH US GRANTOR EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH
COURT, AND EACH US GRANTOR HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH US GRANTOR HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE
BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH US GRANTOR AT THE ADDRESS
SET FORTH ON ANNEX I TO THE CREDIT AGREEMENT AND THAT SERVICE SO MADE SHALL BE
DEEMED COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS
AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, New US Grantor and Agent have duly executed this
Supplement to the US Security Agreement as of the day and year first above
written.
NEW US GRANTOR: [NAME OF NEW US GRANTOR]
By:_____________________________
Name:___________________________
Title:__________________________
Address:
________________________________
________________________________
________________________________
AGENT: GENERAL ELECTRIC CAPITAL
CORPORATION
By:_____________________________
Name:___________________________
Title:__________________________
