GRANT OF SECURITY INTEREST IN
INTELLECTUAL PROPERTY
THIS GRANT OF SECURITY INTEREST IN INTELLECTUAL PROPERTY made as of May 31, 2001
(the "Agreement") by each of the entities identified on the signature pages
hereof as Grantor (each "Grantor") and Hilco Capital LP (the "Lender") under the
Financing Agreement referred to below.
W I T N E S S E T H:
WHEREAS the Lender and, as joint and several obligors, Harvard Industries, Inc.,
Xxxxxxx-Xxxxxx, Inc., Harvard Transportation Corporation, Xxxxxxx-Xxxxxx
Greeneville, Inc., Pottstown Precision Casting, Inc., Harvard Industries Risk
Management, Inc., Xxxxxxx-Xxxxxx Toledo, Inc., Xxxxxx Automotive, Inc.,
Xxxxx-Albion Corporation, and KWCI Liquidating Corporation (the "Companies")
and, as Guarantors, Trim Trends Canada Limited and 000000 Xxxxxx Inc. (the
"Guarantors") have entered into a Financing Agreement of even date herewith (the
"Financing Agreement"); and
WHEREAS the Financing Agreement provides (i) that the Lender will, on the terms
and subject to the conditions set forth therein, make a term loan to the
Companies, and (ii) for Grantor to grant to the Lender a security interest in
certain of Grantor's assets, including, without limitation, its copyrights,
patents, patent applications and/or registrations, trademarks, trademark
applications and/or registrations, tradenames, goodwill and licenses, all as
more fully set forth therein;
NOW, THEREFORE, in consideration of the premises set forth herein and for other
good and valuable consideration, receipt and sufficiency of which is hereby
acknowledged, Grantor agrees as follows:
ARTICLE 1: DEFINITIONS
1.01. Definitions. Unless otherwise specifically defined herein, capitalized
terms used herein shall have the meanings set forth in the Financing
Agreement.
"Copyright License" means any written or unwritten agreement, naming
Grantor as licensor or licensee, granting any right under any
Copyright.
"Patent License" means all agreements, whether written or oral,
providing for the grant by or to Grantor of any right to manufacture,
use or sell any invention covered by a Patent.
"Trademark License" means any agreement, written or oral, providing for
the grant by or to Grantor of any right to use any Trademark.
ARTICLE 2: GRANT OF SECURITY INTEREST
2.01. Grant of Security Interest. As security for the prompt payment in full
of all Obligations, Grantor hereby pledges and grants to the Lender a
security interest, effective immediately, in all of Grantor's right,
title and interest in and to all of the following described property,
whether now owned or hereafter acquired (collectively herein the "IP
Collateral"):
(a) all Patents, including, without limitation, the patents and
applications, listed on (1) Schedule A and (2) Schedule
Foreign Patents attached hereto and made a part hereof along
with any and all (i) inventions and improvements described and
claimed therein, (ii) any and all reissues and renewals,
divisions, continuations, extensions and continuations-in-part
thereof, (iii) all income, royalties, damages and payments now
and hereafter due and/or payable in connection therewith,
including, without limitation, damages and payments for past,
present or future infringements thereof, and (iv) rights to
xxx for past, present or future infringements thereof (all of
the foregoing are sometimes hereinafter individually and/or
collectively referred to as the "Patent Collateral");
(b) all Trademarks, including federal, state and common law
trademark registrations and/or applications and tradenames
including, without limitation, the trademarks and
applications, if any, listed on (1) Schedule B and (2)
Schedule Foreign Trademarks attached hereto and made a part
hereof along with any and all (i) reissues and/or renewals
thereof, and (ii) all income, royalties, damages and payments
now and hereafter due and/or payable in connection therewith,
including, without limitation, damages and payments for past,
present or future infringements thereof and rights to xxx for
past, present or future infringements thereof (all of the
foregoing are sometimes hereinafter individually and/or
collectively referred to as the "Trademark Collateral");
(c) all Copyrights, including, without limitation, registrations,
recordings and applications in the United States Copyright
Office, including, without limitation, any thereof referred to
in Schedule C attached hereto;
(d) any Copyright License, Patent License or Trademark License,
including, without limitation, such licenses, if any, listed
on Schedule D attached hereto and made a part hereof along
with (i) any renewals, extensions, supplement and
continuations thereof, (ii) all income, royalties, damages and
payments now and hereafter due and/or payable in connection
therewith, including, without limitation, damages and payments
for past, present or future breaches thereof, (iii) rights to
xxx for past, present or future breaches thereof, and (iv) any
other rights to use, exploit or practice any or all of the
patents, trademarks or copyrights pertaining thereto (all of
the foregoing are sometimes referred to herein individually
and/or collectively as the "License Collateral");
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(e) all goodwill of Grantor's business connected with and
symbolized by the Trademarks and other general intangibles,
including, without limitation, know-how, trade secrets,
customer lists, proprietary information, inventions, methods,
procedures and formulae;
(f) all cash and non-cash proceeds of the foregoing described in
clauses (a) through (e), and, to the extent not otherwise
included, any
(i) payments under any insurance, indemnity, warranty or
guarantee or letter of credit payable with respect to
any of the foregoing described in clauses (a) through
(e);
(ii) payments (in any form whatsoever) made or due and
payable to Grantor from time to time in connection
with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of any of
the foregoing described in clauses (a) through (e) by
any Governmental Authority (or any person acting under
color of a Governmental Authority);
(iii) instruments representing obligations to pay amounts
in respect of any products of any of the foregoing
described in clauses (a) through (e); and
(iv) other amounts from time to time paid or payable under
or in connection with any of any of the foregoing
described in clauses (a) through (e).
(g) all books, records, ledger cards, files, correspondence,
computer programs, tapes, disks, and related data processing
software (owned by Grantor or in which it has an interest)
that at any time evidence or contain information relating to
any IP Collateral or are otherwise necessary or helpful in the
use thereof, collection thereof or realization thereupon.
(h) to the extent not otherwise included in the foregoing, all
General Intangibles; Grantor and the Lender hereby acknowledge
and agree that the security interest created hereby in the IP
Collateral (i) constitutes continuing collateral security for
all of the Obligations, whether now existing or hereafter
arising, (ii) is not to be construed as an assignment or
license of any IP Collateral, and (iii) shall remain in full
force and effect until the termination of the Commitments and
the full, final and indefeasible payment and performance of
the Obligations.
2.02. The Lender's Rights as Secured Party. Upon the occurrence of any Event
of Default, the Lender shall have all the rights and remedies of a
secured party under the UCC and any other applicable state or federal
laws. If any Event of Default or if a Default consisting of a failure
of payment of a kind referred to in Paragraph 10.1(g) of the Financing
Agreement (a "Payment Default") occurs and is continuing, then on ten
(10) days' prior notice to Grantor, without the curing of such default
within such
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time, the Lender may, without demand of performance, advertisement or
notice of intention to sell, or of the time or place of sale, and
without notice to redeem, or other notice or demand whatsoever
(including those referred to in section 5.12 hereof) to or upon Grantor
(all and each of which demands, advertisements and/or notices are
hereby expressly waived by Grantor), forthwith or at any time or times
thereafter
(a) transfer to and/or register in the Lender's name, or the name
of the Lender's nominee, any or all of the IP Collateral
and/or collect, receive, appropriate and realize upon said IP
Collateral;
(b) sell, assign, transfer and deliver to any other person all
right, title and interest in and to all or any part of the IP
Collateral then held by the Lender under this Agreement or
subject to this Agreement.
(c) Grantor agrees that any notice of sale, disposition, or other
intended action by the Lender that may be required by
applicable law, if sent to Grantor at least ten (10) days
prior to such action shall constitute reasonable notice to
Grantor. Notwithstanding anything to the contrary elsewhere in
this Agreement, if the Obligations are declared or
automatically become immediately due and payable pursuant to
Paragraph 10.2 of the Financing Agreement, in connection with
an Event of Default, the rights and remedies of the Lender
provided for herein, including, without limitation, your
rights to exercise the powers granted to the Lender in the
power of attorney included in the Financing Agreement and this
Agreement, shall continue and shall not cease to be effective
until the full, final and indefeasible payment of all the
Obligations, regardless of whether such Event of Default is
subsequently remedied.
2.03. Power of Attorney. Grantor hereby confirms the power of attorney that
it has granted to the Lender in Paragraph 9.1 of Section 9 of the
Financing Agreement and Grantor confirms that the Lender, or any person
or agent designated by the Lender may, as Grantor's attorney-in-fact
thereunder, at Grantor's cost and expense, exercise all of the powers
there granted to the Lender with respect to the IP Collateral as well
as each of those set forth below:
(a) to perform or cause the performance of any obligation of
Grantor hereunder;
(b) to liquidate any IP Collateral and otherwise to deal in or
with the IP Collateral or the proceeds or avails thereof, as
fully and effectually as if the Lender were absolute owner
thereof, and to apply the proceeds thereof to payment of the
Obligations, notwithstanding the fact that such liquidation
may give rise to penalties;
(c) to transmit to any persons indebted on any IP Collateral
notice of the Lender's interest therein and to notify any
persons indebted on any IP Collateral to make payment directly
to the Lender for Grantor's account and receive and
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give acquittance and receipts for moneys due and to be come
due under or in respect of any of the IP Collateral;
Notwithstanding anything hereinabove contained to the contrary, the
powers set forth in (b) and (c) above may only be exercised after the
occurrence of an Event of Default and until such time as such Event of
Default is waived in writing by the Lender. Grantor hereby ratifies and
approves all of the Lender's acts taken pursuant to the foregoing
appointment, other than acts constituting gross negligence or willful
misconduct, and the Lender, as Grantor's attorney-in-fact, will not be
liable for any acts of commission or omission, or for any error of
judgment or mistake of fact or law, other than those that constitute
gross negligence or willful misconduct on the part of the Lender.
Grantor agrees that, in the event the Lender exercises its rights
hereunder and/or pursuant to said power of attorney in accordance with
its terms, after written notification of such exercise from the Lender
to Grantor, Grantor shall never thereafter, without the prior written
authorization of the owner or owners of such IP Collateral, use any of
such IP Collateral. The condition of the foregoing provision is such
that unless and until there occurs an Event of Default, Grantor shall
continue to own and use the IP Collateral in the normal course of its
business and to enjoy the benefits, royalties and profits therefrom;
provided, however, that from and after the occurrence of an Event of
Default such right will, upon the exercise by the Lender of the rights
contemplated in this Agreement (including those provided for in any
other Loan Document or by applicable law), be revoked and the right of
Grantor to enjoy the uses, benefits, royalties and profits of said IP
Collateral will wholly cease, whereupon the Lender or its transferee(s)
shall be entitled to all of Grantor's right, title and interest in and
to the IP Collateral hereby so assigned. This Agreement will not
operate to place upon the Lender any duty or responsibility to maintain
the IP Collateral.
ARTICLE 3: COVENANTS
3.01. Filings to Confirm Perfection of Security Interest. On a continuing
basis, Grantor shall, at its sole cost and expense, make, execute,
acknowledge and deliver, and file and record in the proper filing and
recording offices, all such instruments or documents, including,
without limitation, appropriate UCC financing and continuation
statements and collateral agreements and the notices attached as
Schedules A, B and C hereto, and take all such action as may be deemed
necessary by the Lender to carry out the intent and purpose of this
Agreement, to assure and confirm to the Lender the grant or perfection
of a first priority security interest in the IP Collateral, and to
enable the Lender to exercise and enforce its rights and remedies
hereunder with respect to any IP Collateral. Notwithstanding the
foregoing, Grantor's obligations to record Lender's security interest
in any Patent or Trademark application or registration or any
application or registration for Copyrights shall apply only to (a)
those U.S. and Canadian Patent and Trademark applications and
registrations listed in (1) Schedule A and Schedule B, (2) future
applications for Patents and Trademarks and applications or
registrations for Copyrights, in each case, that are useful in the
business of Grantor or any other direct or indirect subsidiary of
Harvard, and (3) Patents and Trademarks listed on the Schedule Foreign
Patents or Schedule Foreign Trademarks, if such Patent or Trademark is
necessary for the
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operation of any material portion of the business of Harvard or any of
its direct or indirect subsidiaries.
3.02. Fees. Grantor shall pay all filing fees with respect to the security
interest created hereby which the Lender may deem necessary or
advisable in order to perfect and maintain the perfection of its
security interest in the IP Collateral.
3.03. Applications and Preservation of IP Collateral. Grantor shall
diligently prosecute all applications for Patents or Trademarks now or
hereafter pending the registration of which would be necessary to any
material portion of the business of Grantor, and shall do all acts
necessary to preserve and maintain all rights in the IP Collateral
necessary for the operation of any material portion of Grantor's
business. Any and all costs and expenses incurred in connection with
any such actions shall be borne by Grantor. Grantor shall not abandon
any right to file a Patent or Trademark application claiming priority
from another pending Patent or Trademark application or registration,
or any pending Patent or Trademark application or any Patent or
Trademark the registration of which would be necessary for the
operation of any material portion of Grantor's business without the
consent of the Lender.
3.04. Notice to Lender and Lenders.
(a) Abandonments or Adverse Proceedings. Grantor shall promptly
provide written notice in the manner provided in Section 5.08
to the Lender if it knows, or has reason to know, that any
application or registration for any Patent, Trademark or
Copyright (1) in the U.S. or Canada or (2) in any other
country if such application or registration is necessary for
the operation of a material portion of Grantor's business may
become abandoned or dedicated, or of any adverse determination
or proceeding in the United States Patent and Trademark Office
(other than nonfinal office actions in the course of patent or
trademark prosecution) or the United States Copyright Office
or any court or tribunal in any country regarding the
ownership of any Patent, Trademark or Copyright in the U.S. or
Canada or in any other country if such Patent, Trademark or
Copyright is necessary for the operation of a material portion
of Grantor's business or any application or registration for
such Patent, Trademark or Copyright or its right to register
the same or to keep and maintain the same.
(b) Filing an application for registration of any Patent,
Trademark or Copyright. Whenever Grantor, either (i) by itself
or through an agent, employee, licensee or designee, shall
file an application for the registration of any Patent or
Trademark with the United States Patent and Trademark Office
or any Copyright with the United States Copyright Office or
any similar offices or agencies in any other country or any
political subdivision thereof; or (ii) otherwise acquires any
Patent, Trademark or Copyright application therefor, Grantor
shall report such filing to the Lender within five Business
Days after the last day of the fiscal quarter in which such
filing occurs.
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(c) Infringement, Misappropriation or Dilution. Grantor shall
promptly provide written notice in the manner provided in
Section 5.08 to the Lender whenever Grantor learns that any
Patent, Trademark or Copyright included in the IP Collateral
is infringed, misappropriated or diluted by a third party and,
in the case of any such Patent, Trademark or Copyright which
is material to the Grantor's business, promptly xxx for
infringement, misappropriation or dilution, to seek injunctive
relief where appropriate and to recover any and all damages
for such infringement, misappropriation or dilution, and, in
any case, to take such actions as it shall reasonably deem
appropriate under the circumstances to protect such Patent,
Trademark or Copyright.
(d) General Obligation to Notify. To the extent not otherwise
included in the foregoing Grantor covenants and agrees that,
with respect to the IP Collateral, it will promptly provide
the Lender written notice in the manner provided in Section
5.08 of: (i) any claim by a third party that Grantor has
infringed on the rights of a third party; (ii) any suspected
infringement by a third party on the rights of Grantor; or
(iii) any IP Collateral except such IP Collateral the absence
of which would not be material to Grantor's business or the
business of any other direct or indirect subsidiary of Harvard
or any application or registration for IP Collateral created,
arising or acquired by Grantor after the date hereof.
3.05. Defense of Claims. Grantor will defend at its own cost and expense any
action, claim or proceeding affecting the IP Collateral and/or the
interest of the Lender therein.
3.06. Change of Location/Name. Grantor agrees that it shall not (i) change
the location of its chief executive office/chief place of business from
its address specified for notices herein, or (ii) change its name
(including the adoption of any new trade name), jurisdiction of
incorporation, identity or corporate structure, unless, in any such
case, it shall have provided at least thirty (30) days' prior written
notice to the Lender of any such change and until such filings and
other measures as may be required under applicable law to continue
uninterrupted the perfected lien or security interest created hereunder
on and in the IP Collateral shall have been taken, and until the Lender
shall have received such opinions of counsel with respect thereto as it
may have reasonably requested.
ARTICLE 4: REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties.
(a) Ownership, No Liens, Prior Assignments, or Infringements.
Notwithstanding anything to the contrary elsewhere in the Loan
Documents, Grantor makes no representation as to subsistence
or maintenance of the IP Collateral referred to in the
Schedule Foreign Patents or Schedule Foreign Trademarks.
Grantor represents and warrants and covenants that Grantor
lawfully possesses and owns the IP Collateral and that, except
for the security interest granted hereby and the Permitted
Encumbrances, the IP Collateral is and will continue to be
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kept free from all liens, security interests, claims and
encumbrances whatsoever; that Grantor has not made or given
any prior assignment, transfer or security interest in the IP
Collateral or any of the proceeds thereof; the IP Collateral
listed in Schedules A, B and C hereto is and will continue to
be, in all respects, in full force and effect; and, except as
disclosed in Schedule 11 to the Financing Agreement there are
no known or threatened claims by a third party that Grantor
has infringed on the rights of a third party.
(b) Valid Security Interest/Priority. Grantor represents and
warrants that this Agreement creates a valid security interest
in favor of the Lender in the IP Collateral and, when the
appropriate UCC filings, registrations, recordings and other
notices, which are those listed in Schedules A, B and C
attached hereto, have been filed, registered or recorded (as
applicable), the Lender shall have a valid perfected security
interest in the IP Collateral, to the extent such security can
be perfected by filing under the UCC, with the United States
Patent and Trademark Office and/or with the United States
Copyright Office, free and clear of any and all liens and
encumbrances except for Permitted Encumbrances.
ARTICLE 5: GENERAL
5.01. Application of Proceeds. The proceeds of any disposition of the IP
Collateral shall be applied, first, to all costs and expenses,
including, but not limited to, reasonable attorneys' fees and expenses
and court costs, incurred by the Lender in connection with such
disposition and its exercise of its rights and remedies hereunder and
under the other Loan Documents, and, next, to the payment in whole or
in part, in such order as the Lender may elect, of the Obligations,
whether then due or not due, in accordance with the terms of the
Financing Agreement and the Intercreditor Agreement. The Lender agrees
to pay over any remaining balance to Grantor or to any person entitled
thereto or as a court of competent jurisdiction may direct, upon proper
demand being made therefor. If the Obligations are not fully and
finally satisfied through this application of proceeds and the
application of the proceeds of other Collateral as contemplated in the
other Loan Documents and the Intercreditor Agreement, Grantor shall
continue to be fully liable for the deficiency to the extent provided
in the Financing Agreement.
5.02. Rights Cumulative. The security interest granted herein and the rights
and remedies provided to you in this Agreement shall be in addition to,
and not in substitution, reduction, replacement, or satisfaction of,
any other endorsements or guarantees of the Obligations under the
Financing Agreement or any other Loan Document now existing or
hereafter executed by Grantor or any other Person, and shall not be
deemed to affect, prejudice modify or limit the Financing Agreement,
any other Loan Document or any other rights, collateral, agreements or
security that the Lender has under the Financing Agreement or any other
Loan Document whether granted or given to you by Grantor, any Company
or Guarantor or by any other Person. In addition, nothing in this
Agreement shall be deemed to affect, prejudice, modify or limit any of
your agreements with the Senior Lien Administrative Agent or the Senior
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Xxxx Lenders, as applicable, under the Financing Agreement or the
Intercreditor Agreement as to what rights and remedies you, the Senior
Lien Administrative Agent or the Senior Lien Lenders may have, the
order in which you or they may elect to exercise them or as to the
conditions to their exercise.
5.03. Grantor and (by its acceptance of the benefits of this Pledge
Agreement) the Lender hereby agree that if any provision hereof or of
any other agreement made in connection herewith is held to be illegal
or unenforceable, such provision shall be fully severable, and the
remaining provisions of the applicable agreement shall remain in full
force and effect and shall not be affected by such provision's
severance. Furthermore, in lieu of any such provision, there shall be
added automatically as a part of the applicable agreement a legal and
enforceable provision as similar in terms to the severed provision as
may be possible.
5.04. Waiver of Jury Trial. NEITHER GRANTOR NOR ITS SUCCESSOR, ASSIGN OR
PERSONAL REPRESENTATIVE SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE INVOLVING
GRANTOR, ITS SUCCESSOR, ASSIGN OR PERSONAL REPRESENTATIVE (OR ANY
OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF ANY OF THEM) BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, ANY
IP COLLATERAL OR ANY COLLATERAL FOR THE PAYMENT OF ANY OF THE
OBLIGATIONS OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG SUCH
PERSONS OR ENTITIES, OR ANY OF THEM OR ANY OTHER PARTY TO ANY LOAN
DOCUMENT. NONE OF GRANTOR, ITS SUCCESSOR, ASSIGN OR PERSONAL
REPRESENTATIVE WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS SECTION 5.04 HAVE
BEEN FULLY DISCUSSED BY GRANTOR AND THE LENDER, AND THE PROVISIONS
HEREOF SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF
THIS SECTION 5.04 WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
5.05. Governing Law. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
5.06. Submission to Jurisdiction; Service of Process. Grantor hereby
irrevocably:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the State of New York, the courts
of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
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(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that nothing contained herein shall affect the
right to effect service of process in any other manner permitted by law
or shall limit the right to xxx in any other jurisdiction;
(d) appoints CT Corporation, Inc., at 000 Xxxxxx Xxxxxx, 00xx
xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its agent to receive service of
process or other summons in connection with any such action or
proceeding and waives personal service of process and consents to
service of process by certified or registered mail, return receipt
requested, addressed to Grantor at its address for notices under the
Financing Agreement.
5.07. Events of Default. Grantor shall be in default under this Agreement
upon the occurrence of any Event of Default under the Financing
Agreement.
5.08. Notices. Any notice or other communication required hereunder or
relating to this Agreement shall be given as provided in Paragraph 13.6
of Section 13 of the Financing Agreement for notices relating thereto.
5.09. Further Assurances. Grantor will take any such action as the Lender may
reasonably require to further confirm or protect the Lender's rights
under this Agreement in the IP Collateral. Grantor agrees to execute
and deliver to the Lender (at Grantor's expense) any further
documentation or papers necessary to carry out the intent or purpose of
this Agreement, including, without limitation, financing statements
under the UCC and notices attached hereto as Schedules A, B and C.
5.10. Termination. This Agreement shall terminate upon termination of the
Line of Credit and full, final and indefeasible payment of all
Obligations of Grantor thereunder. Upon Grantor's request, the Lender
shall within a reasonable time after any such termination execute and
deliver to Grantor (at Grantor's expense) such documents and
instruments as are reasonably necessary to evidence such termination
and release of the security interest granted herein on any applicable
public record.
5.11. Indemnification. Grantor hereby acknowledges that this Agreement is a
Loan Document and as such Grantor is subject to the provisions
respecting indemnification of Paragraph 7.7 of Section 7 of the
Financing Agreement.
5.12. No Limitations of Remedies; No Waiver. It is understood and agreed that
the rights and remedies herein enumerated are not intended to be
exhaustive but are in addition to any other rights or remedies provided
at law, in equity, by contract (including, without limitation, the
other Loan Documents) or otherwise. The Lender shall have the absolute
right in its sole discretion to determine the order in which its rights
and remedies are to be exercised, and its exercise of any right or
remedy shall
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not preclude the exercise of any other rights or remedies or be deemed
to be a waiver thereof. Grantor hereby waives diligence, notice of
intent to accelerate, notice of acceleration, demand, presentment and
protest and any notices thereof as well as notice of nonpayment. No
delay or omission of the Lender to exercise any right or remedy
hereunder, whether before or after the happening of any Event of
Default, shall impair any such right or shall operate as a waiver
thereof or as a waiver of any such Event of Default. No single or
partial exercise by the Lender or Grantor of any right or remedy
precludes any other or further exercise thereof, or precludes any other
right or remedy. A waiver on any one occasion shall not be construed as
a bar to, or waiver of, any right or remedy on any future occasion. No
waiver of any right or remedy provided for herein shall be effective as
a waiver unless it is in writing and signed by the Lender.
5.13. Assignment. This Agreement may be assigned by the Lender and shall be
for the benefit of each of its successors, assignees or transferees,
and shall cover any Obligations at the time of assignment or transfer
as well as any and all future Obligations, loans, advances or
extensions of credit made to the Companies by, or otherwise owed by
Grantor to such assignee or transferee.
5.14. Survival. The representations, covenants and agreements of Grantor
herein contained shall survive the date hereof, and shall be deemed to
have been remade on and as of the date on which any additional
Obligations are created.
5.15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an
original and such counterparts shall together constitute but one and
the same document.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date set forth above.
GRANTORS:
---------
Harvard Industries, Inc.
By
--------------------------
Name:
Title:
Xxxxxxx-Xxxxxx, Inc.
By
--------------------------
Name:
Title:
Xxxxx-Albion Corporation
By
--------------------------
Name:
Title:
Xxxxxx Automotive, Inc.
By
--------------------------
Name:
Title:
Harvard Industries Risk
Management, Inc.
By
--------------------------
Name:
Title:
Agreed and Accepted as of
the date set forth above
HILCO CAPITAL LP
By
--------------------------
Name:
Title:
SCHEDULE A
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
PATENTS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Grant of Security Interest in
Intellectual Property dated as of May 31, 2001 (as the same may be amended,
modified, extended or restated from time to time, the "IP Security Agreement")
by and between [Entity Name], a [______________] corporation ("Grantor"), and
Hilco Capital LP ("Lender"), Grantor has granted to the Lender a continuing
security interest in and a continuing lien upon, the patents and patent
applications shown on Annex I attached hereto.
Grantor and the Lender hereby acknowledge and agree that the security
interest in the foregoing patents and patent applications (i) may only be
terminated in accordance with the terms of the IP Security Agreement and (ii) is
not to be construed as an assignment or license of any patent or patent
application.
Very truly yours,
[Entity Name]
a [_______________] corporation
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this ____ day of _______________, 200_, before me
personally came ____________________, to me known to be the person who executed
the foregoing instrument, and who, being duly sworn by me, did depose and say
that he is the _______________ of ____________________, a _______________
corporation, and that he executed the foregoing instrument in the firm name of
____________________, and that he had authority to sign the same, and he
acknowledged to me that he executed the same as the act and deed of said firm
for the uses and purposes therein mentioned.
-----------------------------
ANNEX I
PATENTS
Patent No. Description of Patent Item Date of Patent
----------------------- -------------------------------- ---------------------
PATENT APPLICATIONS
Patent Description of Patent Date of Patent
Applications No. Applied For Applications
----------------------- -------------------------------- ---------------------
SCHEDULE B
NOTICE
OF
GRANT OF SECURITY INTEREST
TRADEMARKS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Grant of Security Interest in
Intellectual Property dated as of May 31, 2001 (as the same may be amended,
modified, extended or restated from time to time, the "IP Security Agreement")
by and between [Entity Name], a [__________________] corporation (the "Grantor"
), and Hilco Capital LP ("Lender"), Grantor has granted to the Lender a
continuing security interest in and continuing lien upon, the trademarks and
trademark applications shown on Annex I attached hereto:
Grantor and the Lender hereby acknowledge and agree that the security
interest in the foregoing trademarks and trademark applications (i) may only be
terminated in accordance with the terms of the IP Security Agreement and (ii) is
not to be construed as an assignment or license of any trademark or trademark
application.
Very truly yours,
[Entity Name]
a [_______________] corporation
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this ____ day of _______________, 200_, before me
personally came ____________________, to me known to be the person who executed
the foregoing instrument, and who, being duly sworn by me, did depose and say
that he is the _______________ of ____________________, a _______________
corporation, and that he executed the foregoing instrument in the firm name of
____________________, and that he had authority to sign the same, and he
acknowledged to me that he executed the same as the act and deed of said firm
for the uses and purposes therein mentioned.
-----------------------------
ANNEX I
TRADEMARKS
Trademark No. Description of Trademark Item Date of Trademark
----------------------- -------------------------------- ---------------------
TRADEMARK APPLICATIONS
Trademark Description of Trademark Date of Trademark
Applications No. Applied For Applications
----------------------- -------------------------------- ---------------------
SCHEDULE C
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
COPYRIGHTS
United States Copyright Office
Gentlemen:
Please be advised that pursuant to the Grant of Security Interest in
Intellectual Property dated as of May 31, 2001 (as the same may be amended,
modified, extended or restated from time to time, the "IP Security Agreement")
by and between [Entity Name], a [__________] corporation (the "Grantor"), and
Hilco Capital LP ("Lender"), Grantor has granted to the Lender a continuing
security interest in and a continuing lien upon, the copyrights and copyright
applications shown on Annex I attached hereto.
Grantor and the Lender hereby acknowledge and agree that the security
interest in the foregoing copyrights and copyright applications (i) may only be
terminated in accordance with the terms of the IP Security Agreement and (ii) is
not to be construed as an assignment or license of any copyright or copyright
application.
Very truly yours,
[Entity Name]
a [_______________] corporation
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this ____ day of _______________, 200_, before me
personally came ____________________, to me known to be the person who executed
the foregoing instrument, and who, being duly sworn by me, did depose and say
that he is the _______________ of ____________________, a _______________
corporation, and that he executed the foregoing instrument in the firm name of
____________________, and that he had authority to sign the same, and he
acknowledged to me that he executed the same as the act and deed of said firm
for the uses and purposes therein mentioned.
-----------------------------
ANNEX I
COPYRIGHTS
Copyright No. Description of Copyright Date of Copyright
----------------------- -------------------------------- ---------------------
COPYRIGHT APPLICATIONS
Copyright Description of Copyright Date of Copyright
Applications No. Applied For Applications
----------------------- -------------------------------- ---------------------
SCHEDULE FOREIGN PATENTS
SCHEDULE FOREIGN TRADEMARKS
SCHEDULE D
PATENT, TRADEMARK AND COPYRIGHT LICENSES
