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EXHIBIT 10.38
AMENDED AND RESTATED
SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT, dated as of March 24,
1997 (this " Security Agreement"), amends and restates that certain Amended and
Restated Security Agreement entered into as of September 16, 1996 among IPC,
INC., a Delaware corporation (the "Borrower"), IVEX PACKAGING CORPORATION, a
Delaware corporation ("Holdings"), certain Subsidiaries of the Borrower party
thereto (the "Prior Guarantors") and NATIONSBANK, N.A., in its capacity as
agent (in such capacity, the "Agent") for the lenders from time to time party
to the Original Credit Agreement described below (the "Prior Lenders").
RECITALS
WHEREAS, the Borrower, Holdings, the Prior Guarantors, the Prior
Lenders and the Agent entered into that certain Credit Agreement, dated as of
December 7, 1995 (as amended and/or modified from time to time thereafter, the
"Original Credit Agreement");
WHEREAS, the Original Credit Agreement has been amended and restated
pursuant to that certain Amended and Restated Credit Agreement, dated as of the
date hereof (as amended, modified, extended, renewed or replaced from time to
time, the "Credit Agreement"), among the Borrower, Holdings, the Domestic
Subsidiaries of the Borrower party thereto (such Domestic Subsidiaries,
together with Holdings, individually a "Guarantor" and collectively the
"Guarantors"), the lenders from time to time party thereto (the "Lenders") and
the Agent; and
WHEREAS, the Lenders have required that the Borrower and the
Guarantors (the Guarantors together with the Borrower, individually an
"Obligor", and collectively the "Obligors") secure or resecure, as applicable,
their respective obligations under the Credit Agreement and the other Credit
Documents in accordance with the terms of this Security Agreement.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Unless otherwise defined herein, capitalized terms used
herein shall have the meanings ascribed to such terms in the Credit
Agreement. All terms used in this Security Agreement that are
defined in the Uniform Commercial Code in effect in the State of New
York (the "UCC") and which are not otherwise defined herein shall have
the meanings set forth therein.
(b) In addition, the following terms shall have the following
meanings:
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"Copyright Licenses": any written agreement, naming any Obligor as
licensor, granting any right under any Copyright including, without
limitation, any thereof referred to in Schedule 7.19(a) to the Credit
Agreement.
"Copyrights": (i) all copyrights in all Works, now existing or
hereafter created or acquired, all registrations and recordings thereof, and
all applications in connection therewith, whether in the United States
Copyright Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision thereof, or
otherwise, including, without limitation, any thereof referred to in Schedule
7.19(a) to the Credit Agreement, and (ii) all renewals thereof including,
without limitation, any thereof referred to in Schedule 7.19(a) to the Credit
Agreement.
"Excluded Equipment": all de-inking equipment (not to exceed a
maximum aggregate value of $6,000,000) purchased from Milnor Corporation for
use at the Detroit, Michigan facility of IPMC, Inc.
"Patent License": all agreements, whether written or oral, providing
for the grant by or to an Obligor of any right to manufacture, use or sell any
invention covered by a Patent, including, without limitation, any thereof
referred to in Schedule 7.19(a) to the Credit Agreement.
"Patents": (a) all letters patent of the United States or any other
country and all reissues and extensions thereof, including, without limitation,
any thereof referred to in Schedule 7.19(a) to the Credit Agreement, and (b)
all applications for letters patent of the United States or any other country
and all divisions, continuations and continuations-in-part thereof, including,
without limitation, any thereof referred to in Schedule 7.19(a) to the Credit
Agreement.
"Trademark License": means any agreement, written or oral, providing
for the grant by or to an Obligor of any right to use any Trademark, including,
without limitation, any thereof referred to in Schedule 7.19(a) to the Credit
Agreement.
"Trademarks": (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and the goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, including, without
limitation, any thereof referred to in Schedule 7.19(a) to the Credit
Agreement, and (b) all renewals thereof including, without limitation, any
thereof referred to in Schedule 7.19(a) to the Credit Agreement.
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"Work": any work which is subject to copyright
protection pursuant to Title 17 of the United States Code or
the applicable copyright legislation of any other country.
2. Grant of Security Interest in the Collateral. To secure the
prompt payment and performance in full when due, whether by lapse of time,
acceleration or otherwise, of the Secured Obligations (as defined in Section 3
hereof), each Obligor hereby grants to the Agent, for the benefit of the
Lenders, a continuing security interest in, and a right to set off against, any
and all right, title and interest of such Obligor in and to the following,
whether now owned or existing or owned, acquired, or arising hereafter
(collectively, the "Collateral"):
(a) All equipment, including, without limitation, all
vehicles, rolling stock, machinery, tools, furniture, furnishings,
office equipment and trade fixtures, but excluding any computer
equipment in which ABB Credit has a first priority security interest
as of the date hereof; provided, however that no security interest
shall exist in the Excluded Equipment until such time as the
Michigan Department of Natural Resources shall have released its
security interest in the same;
(b) All accounts and receivables and all goods
represented by or securing accounts and receivables, including,
without limitation, all rents and tenant payments, if any; provided,
that such security interest will be released if, and to the extent
that, Receivables Transaction occurs;
(c) All inventory, including, without limitation, all raw
materials, all work in process and all goods held by an Obligor for
sale or lease;
(d) All contract rights, including, without limitation,
all rights under management agreements, tax sharing agreements and
lease agreements and all rights to payment of money, tax refunds and
insurance proceeds, but excluding (i) any contract identified on
Schedule 5(e) hereto, and (ii) any immaterial contract that expressly
prohibits a grant of security interest in such contract and that would
subject an Obligor to damages for such breach;
(e) All other general intangibles;
(f) All instruments, documents, chattel paper,
securities, policies and certificates of insurance, deposits, cash or
other goods;
(g) All books, records, files, computer software and
other similar writings or evidence of each Obligor's business;
(h) All Copyrights, Copyright Licenses, Patents, Patent
Licenses, Trademarks and Trademark Licenses;
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(i) All other personal property of any kind or type
whatsoever owned by an Obligor;
(j) All accessions and additions to, and substitutions
and replacements of, any and all of the foregoing, whether now
existing or hereafter arising; and
(k) All proceeds and products of the foregoing and all
insurance relating to the foregoing collateral and all proceeds
thereof (including, without limitation, insurance proceeds payable on
account of business interruption), whether now existing or hereafter
arising.
The Obligors and the Agent, on behalf of the Lenders, hereby
acknowledge and agree that (i) the Collateral shall exclude the Xxxxxx Property
until such time as any Obligor shall obtain a fee interest in the Xxxxxx
Property and (ii) the security interest created hereby in the Collateral is not
to be construed as an assignment of any Copyrights, Copyright Licenses,
Patents, Patent Licenses, Trademarks or Trademark Licenses.
3. Security for Obligations. The security interest created
hereby in the Collateral constitutes continuing collateral security for all of
the following, whether now existing or hereafter incurred (the "Secured
Obligations"):
(a) In the case of the Borrower, the prompt performance
and observance by the Borrower of all obligations of the Borrower
under the Credit Agreement, the Notes, this Security Agreement and
the other Credit Documents to which the Borrower is a party;
(b) In the case of the Guarantors, the prompt performance
and observance by such Guarantor of all obligations of such Guarantor
under the Credit Agreement, this Security Agreement and the other
Credit Documents to which such Guarantor is a party, including,
without limitation, its guaranty obligations arising under Section 5
of the Credit Agreement; and
(c) Subject to clause 25(c)(iii) hereof, all other
indebtedness, liabilities and obligations of any kind or nature owing
from any Obligor to any Lender or the Agent in connection with (i)
this Security Agreement or any other Credit Document, whether now
existing or hereafter arising, due or to become due, direct or
indirect, absolute or contingent, and howsoever evidenced, held or
acquired, together with any and all modifications, extensions,
renewals and/or substitutions of any of the foregoing, (ii) collecting
and enforcing the Credit Party Obligations and (iii) liabilities
arising under interest rate protection agreements entered into
pursuant to the Credit Agreement.
4. Provisions Relating to Accounts Receivable.
(a) Anything herein to the contrary notwithstanding, each
of the Obligors shall remain liable under each of the accounts
receivable to observe and perform all the conditions and obligations
to be observed and performed by it thereunder, all in accordance
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with the terms of any agreement giving rise to each such account
receivable. Neither the Agent nor any Lender shall have any
obligation or liability under any account receivable (or any agreement
giving rise thereto) by reason of or arising out of this Security
Agreement or the receipt by the Agent or any Lender of any payment
relating to such account receivable pursuant hereto, nor shall the
Agent or any Lender be obligated in any manner to perform any of the
obligations of an Obligor under or pursuant to any account receivable
(or any agreement giving rise thereto), to make any payment, to make
any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any
party under any account receivable (or any agreement giving rise
thereto), 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 it or to which it may be entitled at any time or
times; provided, however, that the Agent agrees to execute all
documents reasonably necessary to enable the Obligors to collect upon
any accounts receivable.
(b) Once during each calendar year or at any time after
the occurrence and during the continuation of an Event of Default, the
Agent shall have the right, but not the obligation, to make test
verifications of the accounts receivable in any manner and through any
medium that it reasonably considers advisable, and the Obligors shall
furnish all such assistance and information as the Agent may require
in connection with such test verifications. At any time and from time
to time, upon the Agent's request, the Obligors shall cause
independent public accountants or others satisfactory to the Agent to
furnish (once each calendar year at the expense of the Obligors and at
all other times at the expense of the Lenders) to the Agent reports
showing reconciliations, aging and test verifications of, and trial
balances for, the accounts receivable. The Agent in its own name or
in the name of others may communicate with account debtors on the
accounts receivable to verify with them to the Agent's satisfaction
the existence, amount and terms of any accounts receivable.
5. Representations and Warranties. Each Obligor hereby represents
and warrants to the Agent, for the benefit of the Lenders, that so long as any
of the Secured Obligations remain outstanding or any Credit Document is in
effect (other than any obligations with respect to the indemnities and the
representations and warranties set forth in the Credit Documents) or any Letter
of Credit shall remain outstanding, and until all of the Commitments shall have
been terminated:
(a) Chief Executive Office; Books & Records. Each Obligor's
chief executive office and chief place of business is (and for the
prior four months have been) located at the locations set forth on
Schedule 7.23(c) to the Credit Agreement, and each Obligor keeps its
books and records at such locations.
(b) Location of Collateral. The location of all tangible
property included in the Collateral owned by each Obligor is as shown
on Schedule 7.23(b) to the Credit Agreement; provided, however that
the Obligors, in the aggregate, may have up to $2,500,000 (determined
on the basis of Obligors' costs) of inventory held by customers
pursuant to consignment arrangements.
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(c) Ownership. Each Obligor is the legal and beneficial
owner of its Collateral and has the right to pledge, sell, assign or
transfer the same (excluding any Collateral which is non-assignable by
its terms). Each Obligor's legal name is as shown in this Security
Agreement and no Obligor has in the past four months changed its name,
been party to a merger, consolidation or other change in structure or
used any tradename except as set forth in Schedule 5(c) attached
hereto.
(d) Security Interest/Priority. This Security Agreement
creates a valid security interest in favor of the Agent, for the
benefit of the Lenders, in the Collateral (excluding any Collateral
which is non-assignable by its terms) of such Obligor and, when
properly perfected by filing or registration, shall constitute a valid
perfected security interest in such Collateral, to the extent such
security can be perfected by filing under the UCC or other applicable
personal property security legislation, free and clear of all Liens
except for Permitted Liens.
(e) Contracts; Agreements. Except as provided in
Schedule 5(e) attached hereto, the Borrower has no material contracts
or agreements which are non-assignable by their terms or which prevent
the granting of a security interest therein.
(f) Receivables. (i) Each receivable of the Obligors and the
papers and documents relating thereto are genuine and in all material
respects what they purport to be, (ii)_in the case of each receivable
which is an account receivable, each receivable arises out of (A) a
bona fide sale of goods sold and delivered by such Obligor (or is in
the process of being delivered) or (B) services theretofore actually
rendered by such Obligor to, the account debtor named therein, (iii)
no receivable (excluding inter-company receivables) of an Obligor is
evidenced by any instrument or chattel paper valued in excess of
$100,000, unless such instrument or chattel paper has been theretofore
endorsed over and delivered to the Agent and (iv) no surety bond was
required or given in connection with any receivables of an Obligor or
the contracts or purchase orders out of which they arose.
(g) Inventory. Except as permitted under Section 5(b)
hereof, no inventory is held by an Obligor pursuant to consignment,
sale or return, sale on approval or similar arrangement.
(h) Copyrights, Patents and Trademarks.
(i) Schedule 7.19(a) to the Credit Agreement
includes all material Copyrights, Copyright Licenses, Patents,
Patent Licenses, Trademarks and Trademark Licenses owned by
the Obligors in their own names as of the date hereof.
(ii) Except as set forth in Schedule 7.19(a) to
the Credit Agreement, to the best of each Obligor's knowledge,
each material Copyright, Patent and
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Trademark of such Obligor is valid, subsisting, unexpired,
enforceable and has not been abandoned.
(iii) Except as set forth in Schedule 7.19(a) to
the Credit Agreement and except for immaterial oral or written
non-commercial permissions, none of such material Copyrights,
Patents and Trademarks is the subject of any licensing or
franchise agreement.
(iv) No holding, decision or judgment has been
rendered by any Governmental Authority which would be
reasonably likely to limit, cancel or question the validity of
any material Copyright, Patent or Trademark.
(v) No action or proceeding is pending seeking to
limit, cancel or question the validity of any material
Copyright, Patent or Trademark, or which, if adversely
determined, would be reasonably likely to have a Material
Adverse Effect.
(vi) All applications pertaining to the material
Copyrights, Patents and Trademarks of each Obligor have been
duly and properly filed, and all registrations or letters
pertaining to such Copyrights, Patents and Trademarks have
been duly and properly filed and issued.
(vii) Except as permitted under the Credit
Agreement, no Obligor has made any assignment or agreement in
conflict with the security interest in the material
Copyrights, Patents or Trademarks of each Obligor hereunder.
6. Covenants. Each Obligor covenants that, so long as any of the
Secured Obligations remain outstanding or any Credit Document is in effect
(other than any obligations with respect to the indemnities and the
representations and warranties set forth in the Credit Documents) or any Letter
of Credit shall remain outstanding, and until all of the Commitments shall have
been terminated, such Obligor shall:
(a) Other Liens. Defend the Collateral against the
claims and demands of all other parties claiming an interest therein,
keep the Collateral free from all Liens, except for Permitted Liens
and Liens arising pursuant to consignment arrangements permitted under
Sections 5(b) and 5(g) hereto, and not sell, exchange, transfer,
assign, lease or otherwise dispose of the Collateral or any interest
therein, except as permitted under the Credit Agreement.
(b) Preservation of Collateral. Keep the Collateral in
good order, condition and repair in all material respects and not use
the Collateral in violation of the provisions of this Security
Agreement or any other agreement relating to the Collateral or any
policy insuring the Collateral or any applicable statute, law, bylaw,
rule, regulation or ordinance, except as permitted under the Credit
Agreement.
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(c) Instruments/Chattel Paper. Deliver to the Agent all
instruments and chattel paper valued in excess of $100,000 which
represents or relates to the Collateral.
(d) Change in Location. Not, without providing 30 days
prior written notice to the Agent and without filing such further
financing statements or amendments to any previously filed financing
statements as the Agent may require, (i) change the location of its
chief executive office and chief place of business (as well as its
books and records) from the locations set forth on Schedule 7.23(c)
to the Credit Agreement, (ii) change the location of its Collateral
from the locations set forth for such Obligor on Schedule 7.23(b) of
the Credit Agreement, except as otherwise permitted by Section 5(b)
hereof or as set forth in the Credit Agreement, or (iii) change its
name, be party to a merger, consolidation or other change in structure
or use any tradename other than as set forth on Schedule 5(c) attached
hereto.
(e) Inspection. Upon reasonable notice, and during
reasonable hours, at all times allow the Agent or its representatives
to visit and inspect the Collateral as set forth in Section 8.11 of
the Credit Agreement.
(f) Perfection of Security Interest. Execute and deliver
to the Agent such agreements, assignments or instruments (including
affidavits, notices, reaffirmations and amendments and restatements of
existing documents, as the Agent may reasonably request) and do all
such other things as the Agent may reasonably deem necessary or
appropriate (i) to assure to the Agent its security interests
hereunder, including, but not limited to, (A) such financing
statements (including renewal statements) or amendments thereof or
supplements thereto or other instruments as the Agent may from time to
time reasonably request in order to perfect and maintain the security
interests granted hereunder in accordance with the UCC, (B) with
regard to material Copyrights, a Notice of Grant of Security Interest
in Copyrights for filing with the United States Copyright Office in
the form of Schedule 6(f)-1 attached hereto, (C) with regard to
material Patents, a Notice of Grant of Security Interest in Patents
for filing with the United States Patent and Trademark Office in the
form of Schedule 6(f)-2 attached hereto, and (D) with regard to
material Trademarks, a Notice of Grant of Security Interest in
Trademarks for filing with the United States Patent and Trademark
Office in the form of Schedule 6(f)-3 attached hereto, (ii) to
consummate the transactions contemplated hereby and (iii) to otherwise
protect and assure the Agent of its rights and interests hereunder.
To that end, each Obligor agrees that the Agent may file one or more
financing statements disclosing the Agent's security interest in any
or all of the Collateral of such Obligor without, to the extent
permitted by law, such Obligor's signature thereon, and further each
Obligor also hereby irrevocably makes, constitutes and appoints the
Agent, its nominee or any other person whom the Agent may designate,
as such Obligor's attorney in fact with full power and for the limited
purpose to sign in the name of such Obligor any such financing
statements, or amendments and supplements to financing statements,
renewal financing statements, notices or any similar documents which
in the Agent's reasonable discretion would be necessary, appropriate
or convenient in order to perfect and maintain perfection of the
security interests granted hereunder, such power, being coupled with
an interest,
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being and remaining irrevocable so long as the Credit Agreement is in
effect (other than any obligations with respect to the indemnities and
the representations and warranties set forth in the Credit Documents)
or any amounts payable thereunder or under any other Credit Document
or any Letter of Credit shall remain outstanding, and until all of the
Commitments thereunder shall have terminated. Each Obligor hereby
agrees that a carbon, photographic or other reproduction of this
Security Agreement or any such financing statement is sufficient for
filing as a financing statement by the Agent without notice thereof to
such Obligor wherever the Agent may in its sole discretion desire to
file the same. In the event for any reason the law of any
jurisdiction other than New York becomes or is applicable to the
Collateral of any Obligor or any part thereof, or to any of the
Secured Obligations, such Obligor agrees to execute and deliver all
such instruments and to do all such other things as the Agent in its
sole discretion reasonably deems necessary or appropriate to preserve,
protect and enforce the security interests of the Agent under the law
of such other jurisdiction (and, if an Obligor shall fail to do so
promptly upon the request of the Agent, then the Agent may execute any
and all such requested documents on behalf of such Obligor pursuant to
the power of attorney granted hereinabove). If any Collateral is in
the possession or control of an Obligor's agents and the Agent so
requests, such Obligor agrees to notify such agents in writing of the
Agent's security interest therein and, upon the Agent's request,
instruct them to hold all such Collateral for the Lenders' account and
subject to the Agent's instructions. Each Obligor agrees to xxxx its
books and records to reflect the security interest of the Agent in the
Collateral.
(g) Treatment of Receivables. Not grant or extend the
time for payment of any receivable, or compromise or settle any
receivable for less than the full amount thereof, or release any
person or property, in whole or in part, from payment thereof, or
allow any credit or discount thereon, other than as normal and
customary in the ordinary course of an Obligor's business (including
the acceptance of certain notes by the Borrower in its sales of
polystyrene sheets and films).
(h) Covenants Relating to Copyrights. Except as
otherwise permitted by the Credit Agreement,
(i) Employ the Copyright for each material Work
with such notice of copyright as may be required by law to
secure copyright protection.
(ii) Not do any act or knowingly omit to do any
act whereby any material Copyright may become invalidated and
(A) not do any act, or knowingly omit to do any act, whereby
any material Copyright may become injected into the public
domain; (B) notify the Agent immediately if it knows, or has
reason to know, that any material Copyright may become
injected into the public domain or of any adverse
determination or development (including, without limitation,
the institution of, or any such determination or development
in, any court or tribunal in the United States or any other
country), other than a non-final determination of any such
court, regarding an Obligor's ownership of any such Copyright
or its
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validity; (C) take all necessary steps as it shall deem
appropriate under the circumstances to maintain and pursue
each application (and to use its best efforts to obtain the
relevant registration) and to maintain each registration of
each material Copyright owned by an Obligor including, without
limitation, filing of applications for renewal where
necessary; and (D) promptly notify the Agent of any material
infringement of any material Copyright of an Obligor of which
it becomes aware and take such actions as it shall reasonably
deem appropriate under the circumstances to protect such
Copyright, including, where appropriate, the bringing of suit
for infringement, seeking injunctive relief and seeking to
recover any and all damages for such infringement.
(iii) Not make any assignment or agreement in
conflict with the security interest in the Copyrights of each
Obligor hereunder.
(i) Covenants Relating to Patents and Trademarks.
(i) (A) Except as otherwise permitted by the
Credit Agreement, continue to use each material Trademark in
such a manner as to maintain such Trademark in full force free
from any claim of abandonment for non-use, (B) use its best
efforts to maintain as in the past the quality of products and
services offered under such Trademark, (C) employ such
Trademark with the appropriate notice of registration or
notice of trademark, as applicable, sufficient to protect such
Trademark, (D) not adopt or use any xxxx which is confusingly
similar or a colorable imitation of such Trademark unless the
Agent, for the ratable benefit of the Lenders, shall obtain a
perfected security interest in such xxxx pursuant to this
Security Agreement, and (E) except as otherwise permitted by
the Credit Agreement, not (and not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any
act whereby any such Trademark may become invalidated.
(ii) Except as otherwise permitted by the Credit
Agreement, not do any act, or omit to do any act, whereby any
Patent may become abandoned or dedicated, if the same can be
reasonably expected to have a Material Adverse Effect.
(iii) Notify the Agent and the Lenders immediately
if it knows, or has reason to know, that any application or
registration relating to any material Patent or Trademark may
become abandoned or dedicated, or of any adverse determination
or development (including, without limitation, the institution
of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office or
any court or tribunal in any country), other than non-final
determinations of any such office or court, regarding an
Obligor's ownership of any material Patent or Trademark or its
right to register the same or to keep and maintain the same.
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(iv) Take all reasonable and necessary steps, as
it shall deem appropriate under the circumstances, including,
without limitation, in any proceeding before the United States
Patent and Trademark Office, or any similar office or agency
in any other country or any political subdivision thereof, to
maintain and pursue each application (and use its best efforts
to obtain the relevant registration) and to maintain each
registration of the material Patents and Trademarks,
including, without limitation, filing of applications for
renewal, affidavits of use and affidavits of incontestability.
(v) Promptly notify the Agent and the Lenders
after it learns that any material Patent or Trademark included
in the Collateral is materially infringed, misappropriated or
diluted by a third party, and take such actions as it shall
reasonably deem appropriate under the circumstances to protect
such material Patent or Trademark, including, where
appropriate, the bringing of suit for infringement,
misappropriation or dilution, seeking injunctive relief where
appropriate and seeking to recover any and all damages for
such infringement, misappropriation or dilution.
(vi) Except as otherwise permitted by the Credit
Agreement, not make any assignment or agreement in conflict
with the security interest in the Patents or Trademarks of
each Obligor hereunder.
(j) New Patents, Copyrights and Trademarks. Whenever an
Obligor, either by itself or through an agent, employee, licensee or
designee, shall file an application for the registration of any
Copyright, Patent or Trademark with the United States Patent and
Trademark Office or any similar office or agency in any other country
or any political subdivision thereof, an Obligor shall report such
filing to the Agent and the Lenders within five Business Days after
the last day of the fiscal quarter in which such filing occurs. Upon
request of the Agent, an Obligor shall promptly provide the Agent with
(i) a listing of all such applications (together with a listing of the
issuance of registrations or letters on present applications), which
new applications and issued registrations or letters shall be subject
to the terms and conditions hereunder, and (ii) (A) with respect to
Copyrights, a duly executed amendment or modification to the Notice of
Security Interest in Copyrights, (B) with respect to Patents, a duly
executed amendment or modification to the Notice of Security Interest
in Patents, (C) with respect to Trademarks, a duly executed amendment
or modification to the Notice of Security Interest in Trademarks or
(D) such other duly executed documents as the Agent may request in a
form acceptable to counsel for the Agent and suitable for recording to
evidence the security interest in the Copyright, Patent or Trademark
which is the subject of such new application to the Agent as provided
in Section 2 hereof, and subject to all the terms hereof.
(k) Insurance. Insure, repair and replace the Collateral
of such Obligor as set forth in the Credit Agreement. All insurance
proceeds received in connection with the Collateral shall be subject
to the security interest of the Agent hereunder.
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7. Advances by Lenders. On failure of any Obligor to perform any
of the covenants and agreements contained herein, the Agent may, at its sole
option and in its sole discretion, perform the same and in so doing may expend
such sums as the Agent may reasonably deem advisable in the performance
thereof, including, without limitation, the payment of any insurance premiums,
the payment of any taxes, a payment to obtain a release of a Lien or potential
Lien, expenditures made in defending against any adverse claim and all other
expenditures which the Agent or the Lenders may make for the protection of the
security hereof or which may be compelled to make by operation of law. All
such sums and amounts so expended shall be repayable by the Obligors on a joint
and several basis promptly upon timely notice thereof and demand therefor,
shall constitute additional Secured Obligations and shall bear interest from
the date said amounts are expended at the default rate provided in Section
3.1(b) of the Credit Agreement for Revolving Loans that are Base Rate Loans.
No such performance of any covenant or agreement by the Agent or the Lenders on
behalf of any Obligor, and no such advance or expenditure therefor, shall
relieve the Obligors of any default under the terms of this Security Agreement
or the other Credit Documents. The Lenders may make any payment hereby
authorized in accordance with any xxxx, statement or estimate procured from the
appropriate public office or holder of the claim to be discharged without
inquiry into the accuracy of such xxxx, statement or estimate or into the
validity of any tax assessment, sale, forfeiture, tax lien, title or claim
except to the extent such payment is being contested in good faith by an
Obligor in appropriate proceedings and against which adequate reserves are
being maintained in accordance with GAAP.
8. Events of Default.
The occurrence of an event which under the Credit Agreement would
constitute an Event of Default shall be an Event of Default hereunder (an
"Event of Default").
9. Remedies.
(a) General Remedies. Upon the occurrence of an Event of
Default and during continuation thereof, the Lenders shall have, in
addition to the rights and remedies provided herein, in the Credit
Documents or by law (including, but not limited to, the rights and
remedies set forth in the Uniform Commercial Code of the jurisdiction
applicable to the affected Collateral), the rights and remedies of a
secured party under the UCC to the extent permitted by law (regardless
of whether the UCC is the law of the jurisdiction where the rights and
remedies are asserted and regardless of whether the UCC applies to the
affected Collateral), and further, the Agent may, with or without
judicial process or the aid and assistance of others, (i) enter on any
premises on which any of the Collateral may be located and, without
resistance or interference by the Obligors, take possession of the
Collateral, (ii) dispose of any Collateral on any such premises,
(iii) require the Obligors to assemble and make available to the Agent
at the expense of the Obligors any Collateral at any place and time
designated by the Agent which is reasonably convenient to both
parties, (iv) remove any Collateral from any such premises for the
purpose of effecting sale or other disposition thereof, and/or (v)
without demand and without advertisement, notice, hearing or process
of law, all of which each of the
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13
Obligors hereby waives to the fullest extent permitted by law, at any
place and time or times, sell and deliver any or all Collateral held
by or for it at public or private sale, by one or more contracts, in
one or more parcels, for cash, upon credit or otherwise, at such
prices and upon such terms as the Agent deems advisable, in its sole
discretion (subject to any and all mandatory legal requirements). In
addition to all other sums due the Agent and the Lenders with respect
to the Secured Obligations, the Obligors shall pay the Agent and each
of the Lenders all reasonable documented costs and expenses incurred
by the Agent or any such Lender, including, but not limited to,
reasonable attorneys' fees and court costs, in obtaining or
liquidating the Collateral, in enforcing payment of the Secured
Obligations, or in the prosecution or defense of any action or
proceeding by or against the Agent or the Lenders or the Obligors
concerning any matter arising out of or connected with this Security
Agreement, any Collateral or the Secured Obligations, including,
without limitation, any of the foregoing arising in, arising under or
related to a case under the Bankruptcy Code. To the extent the rights
of notice cannot be legally waived hereunder, each Obligor agrees that
any requirement of reasonable notice shall be met if such notice is
personally served on or mailed, postage prepaid, to the Borrower in
accordance with the notice provisions of Section 12.1 of the Credit
Agreement at least 10 days before the time of sale or other event
giving rise to the requirement of such notice. The Agent and the
Lenders shall not be obligated to make any sale or other disposition
of the Collateral regardless of notice having been given. To the
extent permitted by law, any Lender may be a purchaser at any such
sale. To the extent permitted by applicable law, each of the Obligors
hereby waives all of its rights of redemption with respect to any such
sale. Subject to the provisions of applicable law, the Agent and the
Lenders may postpone or cause the postponement of the sale of all or
any portion of the Collateral by announcement at the time and place of
such sale, and such sale may, without further notice, to the extent
permitted by law, be made at the time and place to which the sale was
postponed, or the Agent and the Lenders may further postpone such sale
by announcement made at such time and place.
(b) Remedies relating to Receivables. Upon the
occurrence of an Event of Default and during the continuation thereof,
whether or not the Agent has exercised any or all of its rights and
remedies hereunder, each Obligor will promptly upon written request of
the Agent instruct all account debtors to remit all payments in
respect of the receivables to a mailing location selected by the
Agent. In addition, the Agent or its designee may notify any
Obligor's customers and account debtors that the receivables of such
Obligor have been assigned to the Agent or of the Agent's security
interest therein, and may (either in its own name or in the name of an
Obligor or both) demand, collect (including without limitation by way
of a lockbox arrangement), receive, take receipt for, sell, xxx for,
compound, settle, compromise and give acquittance for any and all
amounts due or to become due on receivables, and, in the Agent's
discretion, file any claim or take any other action or proceeding to
protect and realize upon the security interest of the Lenders in the
receivables. Each Obligor acknowledges and agrees that the proceeds
of its receivables remitted to or on behalf of the Agent in accordance
with the provisions hereof shall be solely for the Agent's own
convenience and that such Obligor shall not have any right, title or
interest in such accounts or in any such other amounts except as
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14
expressly provided herein. The Agent and the Lenders shall have no
liability or responsibility to any Obligor for acceptance of a check,
draft or other order for payment of money bearing the legend "payment
in full" or words of similar import or any other restrictive legend or
endorsement or be responsible for determining the correctness of any
remittance. Each Obligor hereby agrees to indemnify the Agent and the
Lenders from and against all liabilities, damages, losses, actions,
claims, judgments, costs, expenses, charges and reasonable attorneys'
fees suffered or incurred by the Agent or the Lenders because of the
maintenance of the foregoing arrangements except as relating to or
arising out of the gross negligence or willful misconduct of the Agent
or a Lender or its officers, employees or agents. The foregoing
indemnity shall survive the repayment of the Secured Obligations and
the termination of the Commitments.
(c) Access. In addition to the rights and remedies
hereunder, upon the occurrence of an Event of Default and during the
continuance thereof, the Agent shall have the right to enter and
remain upon the various premises of the Obligors without cost or
charge to the Agent, and use the same, together with materials,
supplies, books and records of the Obligors for the purpose of
collecting and liquidating the Collateral, or for preparing for sale
and conducting the sale of the Collateral, whether by foreclosure,
auction or otherwise. In addition, the Agent may remove Collateral,
or any part thereof, from such premises and/or any records with
respect thereto, in order to effectively collect or liquidate such
Collateral.
(d) Nonexclusive Nature of Remedies. Failure by the
Agent or the Lenders to exercise any right, remedy or option under
this Agreement or any other Credit Document or as provided by law, or
any delay by the Agent or the Lenders in exercising the same, shall
not operate as a waiver of any such right, remedy or option. No
waiver hereunder shall be effective unless it is in writing, signed by
the party against whom such waiver is sought to be enforced and then
only to the extent specifically stated, which in the case of the Agent
or the Lenders shall only be granted as provided herein. To the
extent permitted by law, neither the Agent, the Lenders, nor any party
acting as attorney for the Agent or the Lenders, shall be liable
hereunder for any acts or omissions or for any error of judgment or
mistake of fact or law other than their gross negligence or willful
misconduct hereunder. The rights and remedies of the Agents and the
Lenders under this Agreement shall be cumulative and not exclusive of
any other right or remedy which the Agent or the Lenders may have.
(e) Retention of Collateral. The Agent may, after
providing the notices required by Section 9-505(2) of the UCC or
otherwise complying with the requirements of applicable law of the
relevant jurisdiction, to the extent the Agent is in possession of any
of the Collateral, retain the Collateral in satisfaction of the
Secured Obligations. Unless and until the Agent shall have provided
such notices, however, the Agent shall not be deemed to have retained
any Collateral in satisfaction of any Secured Obligations for any
reason.
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(f) Deficiency. In the event that the proceeds of any
sale, collection or realization are insufficient to pay all amounts to
which the Agent or the Lenders are legally entitled, the Obligors
shall be jointly and severally liable for the deficiency, together
with interest thereon at the default rate specified in Section 3.1(b)
of the Credit Agreement for Revolving Loans that are Base Rate Loans,
together with the costs of collection and the reasonable fees of any
attorneys employed by the Agent to collect such deficiency. Any
surplus remaining after the full payment and satisfaction of the
Secured Obligations shall be returned to the Obligors or to whomsoever
a court of competent jurisdiction shall determine to be entitled
thereto.
10. Rights of the Agent.
(a) Power of Attorney. In addition to other powers of
attorney contained herein, each Obligor hereby designates and appoints
the Agent, on behalf of the Lenders, and each of its designees or
agents, as attorney-in-fact of such Obligor, irrevocably and with
power of substitution, with authority to take any or all of the
following actions upon the occurrence and during the continuance of an
Event of Default:
(i) to demand, collect, settle, compromise,
adjust and give discharges and releases concerning the
Collateral, all as the Agent may reasonably determine;
(ii) to commence and prosecute any actions at any
court for the purposes of collecting any Collateral and
enforcing any other right in respect thereof;
(iii) to defend, settle or compromise any action
brought and, in connection therewith, give such discharge or
release as the Agent may deem reasonably appropriate;
(iv) receive, open and dispose of mail addressed
to an Obligor and endorse checks, notes, drafts, acceptances,
money orders, bills of lading, warehouse receipts or other
instruments or documents evidencing payment, shipment or
storage of the goods giving rise to the Collateral of such
Obligor on behalf of and in the name of such Obligor, or
securing, or relating to such Collateral;
(v) sell, assign, transfer, make any agreement in
respect of, or otherwise deal with or exercise rights in
respect of, any Collateral or the goods or services which have
given rise thereto, as fully and completely as though the Bank
were the absolute owner thereof for all purposes;
(vi) adjust and settle claims under any insurance
policy relating thereto;
(vii) execute and deliver all assignments,
conveyances, statements, financing statements, renewal
financing statements, security agreements,
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affidavits, notices and other agreements, instruments and
documents that the Agent may determine necessary in order to
perfect and maintain the security interests and liens granted
in this Security Agreement and in order to fully consummate
all of the transactions contemplated therein;
(viii) institute any foreclosure proceedings that
the Agent may deem appropriate; and
(ix) do and perform all such other acts and things
as the Agent may reasonably deem to be necessary, proper or
convenient in connection with the Collateral.
This power of attorney is a power coupled with an interest and shall be
irrevocable (i) for so long as any of the Secured Obligations remain
outstanding, any Credit Document is in effect or any Letter of Credit shall
remain outstanding and (ii) until all of the Commitments shall have been
terminated. The Agent shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges and options expressly or
implicitly granted to the Agent in this Security Agreement, and shall not be
liable for any failure to do so or any delay in doing so. The Agent shall not
be liable for any act or omission or for any error of judgment or any mistake
of fact or law in its individual capacity or its capacity as attorney-in-fact
except acts or omissions resulting from its gross negligence or willful
misconduct. This power of attorney is conferred on the Agent solely to
protect, preserve and realize upon its security interest in the Collateral.
(b) Performance by the Agent of Obligations. If any
Obligor fails to perform any agreement or obligation contained herein,
the Agent itself may perform, or cause performance of, such agreement
or obligation, and the expenses of the Agent incurred in connection
therewith shall be payable by the Obligors on a joint and several
basis pursuant to Section 12 hereof.
(c) Assignment by the Agent. The Agent may from time to
time assign the Collateral and any portion thereof, and the assignee
shall be entitled to all of the rights and remedies of the Agent under
this Security Agreement in relation thereto.
(d) The Agent's Duty of Care. Other than the exercise of
reasonable care to assure the safe custody of the Collateral while
being held by the Agent hereunder, the Agent shall have no duty or
liability to preserve rights pertaining thereto, it being understood
and agreed that the Obligors shall be responsible for preservation of
all rights in the Collateral, and the Agent shall be relieved of all
responsibility for the Collateral upon surrendering it or tendering
the surrender of it to the Obligors. The Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Agent accords its own property,
which shall be no less than the treatment employed by a reasonable and
prudent agent in the industry, it being understood that the
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Agent shall not have responsibility for taking any necessary steps to
preserve rights against any parties with respect to any of the
Collateral.
11. Application of Proceeds. Upon the occurrence and during the
continuance of an Event of Default, any payments in respect of the Secured
Obligations and any proceeds of the Collateral, when received by the Agent or
any of the Lenders in cash or its equivalent, will be applied in reduction of
the Secured Obligations in the order set forth in Section 3.7 of the Credit
Agreement, and each Obligor irrevocably waives the right to direct the
application of such payments and proceeds and acknowledges and agrees that the
Agent shall have the continuing and exclusive right to apply and reapply any
and all such payments and proceeds in the Agent's sole discretion,
notwithstanding any entry to the contrary upon any of its books and records.
12. Costs of Counsel. At all times hereafter, the Obligors agree
to promptly pay upon demand any and all reasonable documented costs and
expenses of the Agent or the Lenders, (i) as required under Section 12.5 of the
Credit Agreement and (ii) as necessary to protect the Collateral or to exercise
any rights or remedies under this Security Agreement or with respect to any
Collateral. All of the foregoing costs and expenses shall constitute Secured
Obligations hereunder.
13. Continuing Agreement.
(a) This Security Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect
so long as the Credit Agreement is in effect or any amounts payable
thereunder or under any other Credit Document or any Letter of Credit
shall remain outstanding, and until all of the Commitments thereunder
shall have terminated (other than any obligations with respect to the
indemnities and the representations and warranties set forth in the
Credit Documents). Upon such payment and termination, this Security
Agreement shall be automatically terminated and, the Agent and the
Lenders shall, upon the request and at the expense of the Obligors,
forthwith release all of its liens and security interests hereunder
and shall execute and deliver all UCC termination statements and/or
other documents reasonably requested by the Obligors evidencing such
termination. Notwithstanding the foregoing all releases and
indemnities provided hereunder shall survive termination of this
Security Agreement.
(b) This Security Agreement shall continue to be
effective or be automatically reinstated, as the case may be, if at
any time payment, in whole or in part, of any of the Secured
Obligations is rescinded or must otherwise be restored or returned by
the Agent or any Lender as a preference, fraudulent conveyance or
otherwise under any bankruptcy, insolvency or similar law, all as
though such payment had not been made; provided that in the event
payment of all or any part of the Secured Obligations is rescinded or
must be restored or returned, all reasonable costs and expenses
(including without limitation any reasonable legal fees and
disbursements) incurred by the Agent or any Lender in defending and
enforcing such reinstatement shall be deemed to be included as a part
of the Secured Obligations.
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14. Amendments; Waivers; Modifications. This Security Agreement
and the provisions hereof may not be amended, waived, modified, changed,
discharged or terminated except as set forth in Section 12.6 of the Credit
Agreement.
15. Successors in Interest. This Security Agreement shall create
a continuing security interest in the Collateral and shall be binding upon each
Obligor, its successors and assigns and shall inure, together with the rights
and remedies of the Agent and the Lenders hereunder, to the benefit of the
Agent and the Lenders and their successors and assigns; provided, however, that
none of the Obligors may assign its rights or delegate its duties hereunder
without the prior written consent of each Lender or the Required Lenders, as
required by the Credit Agreement. To the fullest extent permitted by law, each
Obligor hereby releases the Agent and each Lender, and its successors and
assigns, from any liability for any act or omission relating to this Security
Agreement or the Collateral, except for any liability arising from the gross
negligence or willful misconduct of the Agent, or such Lender, or its officers,
employees or agents.
16. Notices. All notices required or permitted to be given under
this Security Agreement shall be in conformance with Section 12.1 of the Credit
Agreement.
17. Counterparts. This Security Agreement may be executed in any
number of counterparts, each of which where so executed and delivered shall be
an original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Security Agreement to produce or
account for more than one such counterpart.
18. Headings. The headings of the sections and subsections hereof
are provided for convenience only and shall not in any way affect the meaning
or construction of any provision of this Security Agreement.
19. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS SECURITY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. Any legal action or proceeding with respect to this
Security Agreement may be brought in the courts of the State of North
Carolina, or of the United States for the Western District of North
Carolina, and, by execution and delivery of this Security Agreement,
each Obligor hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of such
courts. Each Obligor further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address for notices pursuant to
Section 12.1 of the Credit Agreement, such service to become
effective 30 days after such mailing. Nothing herein shall affect the
right of the Agent to serve process in any other manner permitted
by law or to commence legal proceedings or to otherwise proceed
against any Obligor in any other jurisdiction.
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(b) Each Obligor hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection
with this Security Agreement brought in the courts referred to in
subsection (a) hereof and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an
inconvenient forum.
20. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES TO THIS SECURITY AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
21. Severability. If any provision of any of the Security
Agreement is determined to be illegal, invalid or unenforceable, such provision
shall be fully severable and the remaining provisions shall remain in full
force and effect and shall be construed without giving effect to the illegal,
invalid or unenforceable provisions.
22. Entirety. This Security Agreement and the other Credit
Documents represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
23. Survival. All representations and warranties of the Obligors
hereunder shall survive the execution and delivery of this Security Agreement
and the other Credit Documents, the delivery of the Notes and the making of the
Loans and the issuance of the Letters of Credit under the Credit Agreement.
24. Other Security. To the extent that any of the Secured
Obligations are now or hereafter secured by property other than the Collateral
(including, without limitation, real property and securities owned by an
Obligor), or by a guarantee, endorsement or property of any other Person, then
the Agent and the Lenders shall have the right to proceed against such other
property, guarantee or endorsement upon the occurrence of any Event of Default,
and the Agent and the Lenders have the right, in their sole discretion, to
determine which rights, security, liens, security interests or remedies the
Agent and the Lenders shall at any time pursue, relinquish, subordinate, modify
or take with respect thereto, without in any way modifying or affecting any of
them or any of the Agent's and the Lenders' rights or the Secured Obligations
under this Security Agreement or under any other of the Credit Documents.
25. Joint and Several Obligations of Obligors.
(a) Subject to clause (c), each of the Obligors is accepting
joint and several liability hereunder in consideration of the
financial accommodation to be provided by the Lenders under the Credit
Agreement, for the mutual benefit, directly and indirectly, of
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each of the Obligors and in consideration of the undertakings of each
of the Obligors to accept joint and several liability for the
obligations of each of them.
(b) Subject to clause (c), each of the Obligors jointly and
severally hereby irrevocably and unconditionally accepts, not merely
as a surety but also as a co-debtor, joint and several liability with
the other Obligors with respect to the payment and performance of all
of the Secured Obligations arising under this Security Agreement and
the other Credit Documents, it being the intention of the parties
hereto that all the Obligations shall be the joint and several
obligations of each of the Obligors without preferences or distinction
among them.
(c) Notwithstanding any provision to the contrary
contained herein or in any other of the Credit Documents,
(i) to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any
reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of each
Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or
state and including, without limitation, the Bankruptcy Code),
and
(ii) the obligations of Holdings hereunder shall
be limited hereunder and in all the Credit Documents, in the
aggregate, to an amount equal to $153,000,000.
26. Rights of Required Lenders. All rights of the Agent
hereunder, if not exercised by the Agent, may be exercised by the Required
Lenders.
[remainder of page intentionally left blank]
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Each of the parties hereto has caused a counterpart of this Amended
and Restated Security Agreement to be duly executed and delivered as of the
date first above written.
BORROWER: IPC, INC.
a Delaware corporation
By:_____________________
Name:___________________
Title:__________________
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GUARANTORS: IVEX PACKAGING CORPORATION,
a Delaware corporation
By:______________________
Name:____________________
Title:___________________
IVEX PAPER MILL CORPORATION,
a Delaware corporation
IPMC HOLDING CORPORATION,
a Delaware corporation
IPMC, INC.,
a Delaware corporation
VALLEY EXPRESS LINES, INC.,
a Delaware corporation
KAMA OF ILLINOIS CORPORATION,
a Delaware corporation
PACKAGING PRODUCTS, INC.,
a Delaware corporation
CFI INDUSTRIES, INC.,
a Delaware corporation
PLASTOFILM INDUSTRIES, INC.,
a Delaware corporation
CFI RECYCLING, INC.,
a Delaware corporation
TRIO PRODUCTS, INC.,
a Delaware corporation
By:________________________
Name:______________________
Title:_____________________ of each of
the above named Guarantors
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Accepted and agreed to as of the date first above written.
NATIONSBANK, N.A., as Agent
By:_____________________
Name:___________________
Title:__________________
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SCHEDULE 6(f)-1
to
Amended and Restated
Security Agreement
dated as of March 24, 1997
in favor of NationsBank, N.A.,
as Agent
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
COPYRIGHTS
United States Copyright Office
Gentlemen:
Please be advised that pursuant to the Amended and Restated Security Agreement
dated as of March 24, 1997 (as the same may be amended, modified, extended or
restated from time to time, the "Security Agreement") by and among the Obligors
party thereto (each an "Obligor" and collectively, the "Obligors") and
NationsBank, N.A., as Agent (the "Agent") for the lenders referenced therein
(the "Lenders"), the undersigned Obligor has granted a continuing security
interest in and continuing lien upon, the copyrights and copyright applications
shown below to the Agent for the ratable benefit of the Lenders:
COPYRIGHTS
Date of
Copyright No. Description of Copyright Copyright
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Copyright Applications
Copyright Description of Copyright Date of Copyright
Applications No. Applied For Applications
The Obligors and the Agent, on behalf of the Lenders, hereby
acknowledge and agree that the security interest in the attached copyrights and
copyright applications (i) may only be terminated in accordance with the terms
of the Security Agreement and (ii) is not to be construed as an assignment of
any copyright or copyright application.
Very truly yours,
__________________________________
[Obligor]
By:___________________________
Name:_________________________
Title:________________________
Acknowledged and Accepted:
NATIONSBANK, N.A., as Agent
By:__________________________
Name:________________________
Title:_______________________
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26
SCHEDULE 6(f)-2
to
Amended and Restated
Security Agreement
dated as of March 24, 1997
in favor of NationsBank, N.A.,
as Agent
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
PATENTS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Amended and Restated Security Agreement
dated as of March 24, 1997 (as the same may be amended, modified, extended or
restated from time to time, the "Security Agreement") by and among the Obligors
party thereto (each an "Obligor" and collectively, the "Obligors") and
NationsBank, N.A., as Agent (the "Agent") for the lenders referenced therein
(the "Lenders"), the undersigned Obligor has granted a continuing security
interest in and continuing lien upon, the patents and patent applications shown
below to the Agent for the ratable benefit of the Lenders:
PATENTS
Description of Patent Date of
Patent No. Item Patent
Patent Applications
Patent Description of Patent Date of Patent
Applications No. Applied For Applications
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The Obligors and the Agent, on behalf of the Lenders, hereby acknowledge and
agree that the security interest in the attached patents and patent
applications (i) may only be terminated in accordance with the terms of the
Security Agreement and (ii) is not to be construed as an assignment of any
patent or patent application.
Very truly yours,
__________________________________
[Obligor]
By:__________________________
Name:________________________
Title:_______________________
Acknowledged and Accepted:
NATIONSBANK, N.A., as Agent
By:__________________________
Name:________________________
Title:_______________________
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28
SCHEDULE 6(f)-3
to
Amended and Restated
Security Agreement
dated as of March 24, 1997
in favor of NationsBank, N.A.,
as Agent
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
TRADEMARKS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Amended and Restated Security Agreement
dated as of March 24, 1997 (as the same may be amended, modified, extended or
restated from time to time, the "Security Agreement") by and among the Obligors
party thereto (each an "Obligor" and collectively, the "Obligors") and
NationsBank, N.A., as Agent (the "Agent") for the lenders referenced therein
(the "Lenders"), the undersigned Obligor has granted a continuing security
interest in and continuing lien upon, the trademarks and trademark applications
shown below to the Agent for the ratable benefit of the Lenders:
TRADEMARKS
Description of Trademark Date of
Trademark No. Item Trademark
Trademark Applications
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Trademark Description of Trademark Date of Trademark
Applications No. Applied For Applications
The Obligors and the Agent, on behalf of the Lenders, hereby acknowledge and
agree that the security interest in the attached trademarks and trademark
applications (i) may only be terminated in accordance with the terms of the
Security Agreement and (ii) is not to be construed as an assignment of any
trademark or trademark application.
Very truly yours,
__________________________________
[Obligor]
By:___________________________
Name:_________________________
Title:________________________
Acknowledged and Accepted:
NATIONSBANK, N.A., as Agent
By:__________________________
Name:________________________
Title:_______________________
-31-
