AMENDED AND RESTATED GENERAL SECURITY AGREEMENT
This AMENDED AND RESTATED GENERAL SECURITY AGREEMENT (the
"Agreement"), dated as of May __, 1997, made by XXXXX ALUMINUM CORPORATION, a
Maryland corporation having an office at 000 Xxxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000 ("Pledgor"), in favor of CREDIT AGRICOLE INDOSUEZ
(successor to Banque Indosuez), having an office at 1211 Avenue of the
Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as pledgee, assignee and secured
party, in its capacity as collateral agent (in such capacities and together
with any successors in such capacity, "Collateral Agent") for the lending
institutions (the "Banks") under the Credit Agreement (as hereinafter defined).
R E C I T A L S :
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A. Pursuant to a certain credit agreement, dated as of December 21,
1994 (as amended prior to the date hereof, the "Original Credit Agreement"), by
and among Pledgor, the Banks and Banque Indosuez, New York Branch, as Agent for
the Banks, the Banks agreed (i) to make to or for the account of Pledgor
certain Term Loans up to an aggregate principal amount of $40,000,000 and
certain Revolving Loans up to an aggregate principal amount of $22,000,000 and
(ii) to issue certain Letters of Credit for the account of Pledgor.
B. To secure its obligations under the Original Credit Agreement,
Pledgor entered into a certain general security agreement, dated as of December
21, 1994 (as amended prior to the date hereof, the "Original General Security
Agreement"), in favor of Banque Indosuez, New York Branch, as Collateral Agent
for its benefit and the benefit of the Banks.
C. The parties to the Original Credit Agreement are amending and
restating the Original Credit Agreement pursuant to a certain amended and
restated credit agreement, dated as of the date hereof (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Amended
and Restated Credit Agreement"; unless otherwise defined herein, capitalized
terms used herein have the meanings assigned to them in the Amended and
Restated Credit Agreement), pursuant to which Pledgor and the Banks have agreed
to the repayment and
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termination of the Term Loans under the Original Credit Agreement and the
reduction in the Total Revolving Loan Commitment to $15,000,000.
D. Contemporaneously with the execution and delivery of the Amended
and Restated Credit Agreement, the parties to the Original General Security
Agreement desire to amend and restate that agreement to reflect the termination
and reduction of loans under the Amended and Restated Credit Agreement and the
release of certain of the Pledged Collateral under the Original General
Security Agreement.
E. Pledgor is the legal and beneficial owner of the Pledged
Collateral (as hereinafter defined).
F. It is a condition to the obligations of the Banks to make the
Loans under the Amended and Restated Credit Agreement and a condition to any
Bank issuing Letters of Credit under the Amended and Restated Credit Agreement
that Pledgor execute and deliver this Agreement.
G. This Agreement is given by Pledgor in favor of Collateral Agent
for its benefit and the benefit of the Banks and the Agent (collectively, the
"Secured Parties") to secure the payment and performance of all of the Secured
Obligations (as defined in Section 2).
A G R E E M E N T :
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NOW, THEREFORE, in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Pledgor and Collateral Agent hereby agree as follows:
Section 1. Pledge. As collateral security for the payment and
performance when due of all the Secured Obligations, Pledgor hereby pledges,
assigns, transfers and grants to Collateral Agent for its benefit and the
benefit of the Secured Parties, a continuing first priority security interest
(except as set forth in Schedule A hereto) in and to all of the right, title
and interest of Pledgor in, to and under the following (collectively, the
"Pledged Collateral"):
(a) each and every Receivable (as herein-
after defined) now existing or hereafter arising
from time to time;
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(b) all Inventory (as hereinafter defined)
now existing or hereafter acquired from time to
time;
(c) all books, records, ledgers, printouts, file materials and
other papers containing information relating to Inventory or Receivables
and any account debtors in respect thereof, together with all Contracts
(as hereinafter defined) relating to Inventory or Receivables now
existing or hereafter arising from time to time;
(d) all Documents (as hereinafter defined)
relating to Inventory or Receivables now existing
or hereafter acquired from time to time;
(e) all Instruments (as hereinafter
defined) relating to Inventory or Receivables now
existing or hereafter acquired from time to time;
and
(f) all Proceeds (as hereinafter defined)
of any and all of the foregoing.
To the extent that items or types of property constituting "Pledged
Collateral" under the Original General Security Agreement do not constitute
Pledged Collateral hereunder, such items or types of property are released from
the Lien of the Original General Security Agreement and are not subject to the
Lien hereunder.
Section 2. Secured Obligations. This Agreement secures, and the
Pledged Collateral is collateral security for, the payment and performance in
full when due, whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and other amounts which
would accrue and become due but for the filing of a petition in bankruptcy or
the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. Section 362(a)), of (i) all Obligations of Pledgor now existing
or hereafter arising under or in respect of the Amended and Restated Credit
Agreement (including, without limitation, the obligations of Pledgor to pay
principal, interest and all other charges, fees, expenses, commissions,
reimbursements, premiums, indemnities and other payments related to or in
respect of the Obligations contained in the Amended and Restated Credit
Agreement) and (ii) without duplication of the amounts described in clause
(i), all
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obligations of Pledgor now existing or hereafter arising under or in respect of
this Agreement, including, without limitation, all charges, fees, expenses,
commissions, reimbursements, premiums, indemnities and other payments related
to or in respect of the obligations contained in this Agreement whether in the
regular course of business or otherwise (the obligations described in clauses
(i) and (ii) of this Section 2, collectively, the "Secured Obligations").
Section 3. No Release. Nothing set forth in this Agreement shall
relieve Pledgor from the performance of any term, covenant, condition or
agreement on Pledgor's part to be performed or observed under or in respect of
any of the Pledged Collateral or from any liability to any Person under or in
respect of any of the Pledged Collateral or shall impose any obligation on
Collateral Agent or any Secured Party to perform or observe any such term,
covenant, condition or agreement on Pledgor's part to be so performed or
observed or shall impose any liability on Collateral Agent or any Secured Party
for any act or omission on the part of Pledgor relating thereto or for any
breach of any representation or warranty on the part of Pledgor contained in
this Agreement, or under or in respect of the Pledged Collateral or made in
connection herewith or therewith. The obligations of Pledgor contained in this
Section 3 shall survive the termination of this Agreement and the discharge of
Pledgor's other obligations under this Agreement.
Section 4. Supplements by Collateral Agent. Pledgor hereby
authorizes Collateral Agent, without relieving Pledgor of any obligations
hereunder, to file financing statements, continuation statements, amendments
thereto and other documents, relative to all or any part thereof, without the
signature of Pledgor where permitted by law, and Pledgor agrees to do such
further acts and things, and to execute and deliver to Collateral Agent such
additional assignments, agreements, powers and instruments, as Collateral Agent
may deem necessary or appropriate, in order to perfect and preserve the rights
and interests granted to Collateral Agent hereunder or to carry into effect the
purposes of this Agreement or better to assure and confirm unto Collateral
Agent its respective rights, powers and remedies hereunder. All of the
foregoing shall be at the sole cost and expense of Pledgor.
Section 5. Representations, Warranties and Covenants. Pledgor
represents, warrants and covenants as follows:
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(a) Necessary Filings. Upon filing of UCC-1 financing statements in
the appropriate filing offices under the Uniform Commercial Code as
enacted in any and all relevant jurisdictions (the "UCC"), the security
interest granted to Collateral Agent for the benefit of the Secured
Parties pursuant to this Agreement in and to the Pledged Collateral will
constitute a valid and duly perfected security interest in and to the
Pledged Collateral, superior and prior to the rights of all other Persons
therein and subject to no Liens other than the Liens identified in
Schedule A relating to the items of Pledged Collateral identified on such
schedule (collectively, "Prior Liens").
(b) No Liens. Pledgor is as of the date hereof, and, as to Pledged
Collateral acquired by it from time to time after the date hereof,
Pledgor will be, the owner of all Pledged Collateral free from any Lien
or other right, title or interest of any Person other than (i) Prior
Liens, (ii) the Lien and security interest created by this Agreement,
(iii) Liens of the type described in clauses (b), (d) and (g) of the
definition of Permitted Encumbrances; provided, however, that with
respect to the Liens described in clauses (b) and (d) of the definition
of Permitted Encumbrances, Pledgor shall comply with the provisions of
subsection 7(d) of this Agreement; and (iv) Liens for taxes, assessments,
governmental charges or claims being contested in accordance with the
provisions of subsection 7(d) of this Agreement. Pledgor shall defend the
Pledged Collateral against all claims and demands of all Persons at any
time claiming any interest therein adverse to Collateral Agent or any
Secured Party.
(c) Other Financing Statements. There is no financing statement (or
similar statement or instrument of registration under the law of any
jurisdiction) covering or purporting to cover any interest of any kind in
the Pledged Collateral other than financing statements relating to Prior
Liens, and so long as any of the Secured Obligations remain unpaid or the
Commitments of the Banks to make any Loan or to issue any Letter of
Credit shall not have expired or been sooner terminated, Pledgor shall
not execute, authorize or permit to be filed in any public office any
financing statement (or similar statement or instrument of registration
under the law of any jurisdiction) or statements relating to the Pledged
Collateral, except, in each case, financing statements filed or to be
filed in respect of and covering (i) the security
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interests granted by Pledgor pursuant to this Agreement, (ii) Prior Liens
and (iii) Liens of the type described in clause (iii) of subsection 5(b)
of this Agreement.
(d) Chief Executive Office; Records. The chief executive office
of Pledgor is located at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
Pledgor shall not move its chief executive office except to such new
location as Pledgor may establish in accordance with the last sentence of
this subsection 5(d). All tangible evidence of all Receivables and the
only original books of account and records of Pledgor relating thereto
are, and will continue to be, kept at such chief executive office, or at
such new location for such chief executive office as Pledgor may establish
in accordance with the last sentence of this subsection 5(d). All
Receivables of Pledgor are, and will continue to be, controlled and
monitored (including, without limitation, for general accounting purposes)
from such chief executive office location shown above, or such new
location as Pledgor may establish in accordance with the last sentence of
this subsection 5(d). Pledgor shall not establish a new location for its
chief executive office nor shall it change its name until (i) it shall
have given Collateral Agent not less than thirty (30) days' prior written
notice of its intention so to do, clearly describing such new location or
name and providing such other information in connection therewith as
Collateral Agent or any Secured Party may request and (ii) with respect to
such new location or name, Pledgor shall have taken all action
satisfactory to Collateral Agent and the Secured Parties to maintain the
perfection and priority of the security interest of Collateral Agent for
the benefit of the Secured Parties in the Pledged Collateral intended to
be granted hereby, including, without limitation, obtaining waivers of
landlord's or warehouseman's liens with respect to such new location, if
applicable.
(e) Location of Inventory. All Inventory held on the date hereof by
Pledgor is located at one of the locations shown in Schedule B hereto,
except for Inventory in transit in the ordinary course of business to or
from one or more of such locations. All Inventory now held or subsequently
acquired shall be kept at one of the locations shown in Schedule B hereto,
except for Inventory in transit in the ordinary course of business to or
from one or more of such locations, or at such new location as Pledgor may
establish if (i) it shall have given to Collateral
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Agent at least thirty (30) days' prior written notice of its intention so
to do, clearly describing such new location and providing such other
information in connection therewith as Collateral Agent or any Secured
Party may reasonably request and (ii) with respect to such new location,
Pledgor shall have taken all action satisfactory to Collateral Agent and
the Secured Parties to maintain the perfection and priority of the
security interest in the Pledged Collateral intended to be granted hereby,
including, without limitation, obtaining waivers of landlord's or
warehouseman's liens with respect to such new location, if applicable.
(f) Authorization, Enforceability. Pledgor has the requisite
corporate power, authority and legal right to pledge and grant a security
interest in all the Pledged Collateral pursuant to this Agreement, and
this Agreement constitutes the legal, valid and binding obligation of
Pledgor, enforceable against Pledgor in accordance with its terms.
(g) No Consents, etc. No consent of any party (including, without
limitation, stockholders or creditors of Pledgor or any account debtor
under a Receivable) and no consent, authorization, approval, or other
action by, and no notice to or filing with, any Governmental Authority or
regulatory body or other Person is required (x) for the pledge by Pledgor
of the Pledged Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by Pledgor, or (y) for the
exercise by Collateral Agent of the rights provided for in this Agreement
or (z) for the exercise by Collateral Agent of the remedies in respect of
the Pledged Collateral pursuant to this Agreement.
(h) Pledged Collateral. All information set forth herein, including
the Schedules annexed hereto, and all information contained in any
documents, schedules and lists heretofore delivered to any Secured Party
in connection with this Agreement, in each case, relating to the Pledged
Collateral is accurate and complete in all respects.
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Section 6. Special Provisions Concerning Receivables.
(a) Special Representations and Warranties. As of the time when
each of its Receivables arises, Pledgor shall be deemed to have represented and
warranted that such Receivable and all records, papers and documents relating
thereto (i) are genuine and correct and in all respects what they purport to
be, (ii) to the best of Pledgor's knowledge, represent the legal, valid and
binding obligation of the account debtor, evidencing indebtedness unpaid and
owed by such account debtor, arising out of the performance of labor or
services or the sale or lease and delivery of the merchandise listed therein or
out of an advance or a loan, (iii) will, in the case of a Receivable, except
for the original or duplicate original invoice sent to a purchaser evidencing
such purchaser's account, be the only original writings evidencing and
embodying such obligation of the account debtor named therein, (iv) constitute
and evidence true and valid obligations, enforceable in accordance with their
respective terms, not subject to the fulfillment of any contract or condition
whatsoever or to any defenses, set-offs or counterclaims except with respect to
refunds, returns and allowances in the ordinary course of business, or stamp or
other taxes and (v) are in compliance and conform with all applicable federal,
state and local laws and applicable laws of any relevant foreign jurisdiction.
(b) Maintenance of Records. Pledgor shall keep and maintain at its
own cost and expense complete records of each Receivable, in a manner
consistent with prudent business practice, including, without limitation,
records of all payments received, all credits granted thereon, all merchandise
returned and all other documentation relating thereto, and Pledgor shall make
the same available to Collateral Agent or any Secured Party for inspection upon
prior notice to Pledgor, at such reasonable times as Collateral Agent or any
Secured Party may request. Pledgor shall, at Pledgor's sole cost and expense,
upon Collateral Agent's demand made at any time after the occurrence of any
Event of Default, deliver all tangible evidence of Receivables, including,
without limitation, all documents evidencing Receivables and any books and
records relating thereto to Collateral Agent or to its representatives (copies
of which evidence and books and records may be retained by Pledgor). Upon the
occurrence of an Event of Default, Collateral Agent may transfer a full and
complete copy of Pledgor's books, records, credit information, reports,
memoranda and all other writings relating to the Receivables to and for the use
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by any Person that has acquired or is contemplating acquisition of an interest
in the Receivables or Collateral Agent's security interest therein without the
consent of Pledgor.
(c) Legend. Pledgor shall legend, at the request of Collateral
Agent and in form and manner satisfactory to Collateral Agent, the Receivables
and other books, records and documents of Pledgor evidencing or pertaining to
the Receivables with an appropriate reference to the fact that the Receivables
have been assigned to Collateral Agent for the benefit of the Secured Parties
and that Collateral Agent has a security interest therein.
(d) Modification of Terms, etc. Pledgor shall not rescind or cancel
any indebtedness evidenced by any Receivable or modify any term thereof or make
any adjustment with respect thereto except in the ordinary course of business
consistent with prudent business practice, or extend or renew any such
indebtedness except in the ordinary course of business consistent with prudent
business practice or compromise or settle any dispute, claim, suit or legal
proceeding relating thereto or sell any Receivable or interest therein without
the prior written consent of Collateral Agent. Pledgor shall timely fulfill
all obligations on its part to be fulfilled under or in connec-
tion with the Receivables.
(e) Collection. Pledgor shall cause to be collected from the
account debtor of each of the Receivables, as and when due (including, without
limitation, Receivables that are delinquent, such Receivables to be collected
in accordance with generally accepted commercial collection procedures), any
and all amounts owing under or on account of such Receivable, and apply
forthwith upon receipt thereof all such amounts as are so collected to the
outstanding balance of such Receivable, except that prior to the occurrence of
an Event of Default Pledgor may, with respect to a Receivable, allow in the
ordinary course of business (i) a refund or credit due as a result of returned
or damaged or defective merchandise and (ii) such extensions of time to pay
amounts due in respect of Receivables and such other modifications of payment
terms or settlements in respect of Receivables as shall be commercially
reasonable in the circumstances, all in accordance with Pledgor's ordinary
course of business consistent with its collection practices as in effect from
time to time. The costs and expenses (including, without limitation, attorneys'
fees) of collection, in any case, whether incurred by Pledgor, Collateral Agent
or any Secured Party, shall be paid by Pledgor.
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(f) Instruments. Pledgor shall deliver to Collateral Agent, within
five (5) days after receipt thereof by Pledgor any Instrument evidencing
Receivables which is in the principal amount of $500,000 or more. Any
Instrument delivered to Collateral Agent pursuant to this subsection 6(f) shall
be appropriately endorsed (if applicable) to the order of Collateral Agent, as
agent for the Secured Parties, and shall be held by Collateral Agent as further
security hereunder.
(g) Cash Collateral. Upon the occurrence of an Event of Default, if
Collateral Agent so directs, Pledgor shall cause all payments on account of the
Receivables to be held by Collateral Agent as cash collateral, upon
acceleration or otherwise. Without notice to or assent by Pledgor, Collateral
Agent may apply any or all amounts then or thereafter held as cash collateral
in the manner provided in Section 11. The costs and expenses (including,
without limitation, attorneys' fees) of collection, whether incurred by
Collateral Agent or any Secured Party, shall be paid by Pledgor.
Section 7. Provisions Concerning All Pledged Collateral.
(a) Protection of Collateral Agent's Security. Pledgor shall not
take any action that impairs the rights of Collateral Agent or any Secured
Party in the Pledged Collateral. Pledgor shall at all times keep the Inventory
insured, at Pledgors' own expense, to Collateral Agent's satisfaction against
fire, theft and all other risks to which the Pledged Collateral may be subject,
in such amounts and with such deductibles as would be maintained by operators
of businesses similar to the business of Pledgor or as Collateral Agent may
otherwise reasonably require. Each policy or certificate with respect to such
insurance shall be endorsed to Collateral Agent's satisfaction for the benefit
of Collateral Agent (including, without limitation, by naming Collateral Agent
as an additional named insured and sole loss payee as Collateral Agent may
request) and such policy or certificate shall be delivered to Collateral Agent.
Each such policy shall state that it cannot be cancelled without thirty (30)
days' prior written notice to Collateral Agent. At least thirty (30) days prior
to the expiration of any such policy of insurance, Pledgor shall deliver to
Collateral Agent an extension or renewal policy or an insurance certificate
evidencing renewal or extension of such policy. If Pledgor shall fail to insure
such Pledged Collateral to Collateral Agent's satisfaction or if Pledgor shall
fail so to endorse and deposit, or extend or
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renew, all such insurance policies or certificates with respect thereto,
Collateral Agent shall have the right (but shall be under no obligation) to
advance funds to procure or renew or extend such insurance and Pledgor agrees
to reimburse Collateral Agent for all costs and expenses thereof, with interest
on all such funds from the date advanced until paid in full at the highest rate
then in effect under the Amended and Restated Credit Agreement.
(b) Insurance Proceeds. So long as no Event of Default shall have
occurred, Pledgor shall have the option (i) to apply any proceeds of insurance
received by it as Net Cash Proceeds in accordance with Section 3.02(B)(a) of
the Amended and Restated Credit Agreement or (ii) to apply the proceeds of such
insurance to the repair or replacement of the item or items of Pledged
Collateral in respect of which such proceeds were received. In the event that
Pledgor elects to apply such proceeds to the repair or replacement of any item
of Pledged Collateral pursuant to clause (ii) of the preceding sentence,
Pledgor shall upon its receipt of such proceeds from Collateral Agent promptly
commence and diligently continue to perform such repair or promptly effect such
replacement. Upon the occurrence of an Event of Default, Collateral Agent shall
have the option to apply any proceeds of insurance received by Pledgor in
respect of the Pledged Collateral toward the payment of the Secured Obligations
in accordance with Section 11 hereof or to continue to hold such proceeds as
additional collateral to secure the performance by Pledgor of the Secured
Obligations.
(c) Payment of Taxes; Claims. Pledgor shall pay promptly when due
all property and other taxes, assessments and governmental charges or levies
imposed upon, and all claims (including claims for labor, materials and
supplies) against, the Pledged Collateral. Notwithstanding the foregoing,
Pledgor may at its own expense contest the amount or applicability of any of
the obligations described in the preceding sentence by appropriate legal or
administrative proceedings, prosecution of which operates to prevent the
collection thereof and the sale or forfeiture of the Pledged Collateral or any
part thereof to satisfy the same; provided, however, that in connection with
such contest, Pledgor shall (a) have made provision for the payment of such
contested amount on Pledgor's books if and to the extent required by generally
accepted accounting principles and (b) at the option and upon the request of
Collateral Agent, have deposited with Collateral Agent a sum sufficient to pay
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and discharge such obligation and Collateral Agent's estimate of all interest
and penalties related thereto.
(d) Further Actions. Pledgor shall, at its sole cost and expense,
make, execute, endorse, acknowledge, file or refile and/or deliver to
Collateral Agent from time to time such lists, descriptions and designations of
the Pledged Collateral, copies of warehouse receipts, receipts in the nature of
warehouse receipts, bills of lading, documents of title, vouchers, invoices,
schedules, confirmatory assignments, supplements, additional security
agreements, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Pledged Collateral and other property or
rights covered by the security interest hereby granted, which Collateral Agent
reasonably deems necessary or appropriate to exercise and enforce its rights
and remedies hereunder with respect to any Pledged Collateral and to perfect,
preserve or protect the security interest in the Pledged Collateral created and
granted by this Agreement.
(e) Financing Statements. Pledgor shall sign and deliver to
Collateral Agent such financing and continuation statements, in form acceptable
to Collateral Agent, as may from time to time be required to continue and
maintain a valid, enforceable, first priority security interest in the Pledged
Collateral as provided herein and the other rights, as against third parties,
provided hereby, all in accordance with the UCC or any other relevant law.
Pledgor shall pay any applicable filing fees and other expenses related to the
filing of such financing and continuation statements. Pledgor authorizes
Collateral Agent to file any such financing or continuation statements without
the signature of Pledgor where permitted by law.
(f) Warehouse Receipts Non-Negotiable. If any warehouse receipt or
receipt in the nature of a warehouse receipt is issued with respect to any of
the Inventory, Pledgor shall not permit such warehouse receipt or receipt in
the nature thereof to be "negotiable" (as such term is used in Section 7-104 of
the UCC or under other relevant law).
Section 8. Transfers and Other Liens. Pledgor shall not (i) sell,
convey, assign or otherwise dispose of, or grant any option with respect to,
any of the Pledged Collateral other than Inventory in the ordinary course of
business except as permitted by the Amended and Restated Credit Agreement or
(ii) create or permit to exist any Lien upon or with respect to any
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of the Pledged Collateral other than (i) Prior Liens, (ii) the Lien and
security interest granted to Collateral Agent under this Agreement and (iii)
Liens of the type described in clauses (iii) and (iv) of subsection 5(b) of
this Agreement.
Section 9. Reasonable Care. Collateral Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if such Pledged Collateral is accorded treatment
substantially equivalent to that which Collateral Agent, in its individual
capacity, accords its own property, it being understood that Collateral Agent
shall not have responsibility for taking any necessary steps to preserve rights
against any Person with respect to any Pledged Collateral.
Section 10. Remedies Upon Default; Obtaining the Pledged
Collateral Upon Event of Default. (a) If an Event of Default shall have
occurred, then and in every such case, Collateral Agent may:
(i) Personally, or by agents or attorneys, immediately take
possession of the Pledged Collateral or any part thereof, from Pledgor or
any other Person who then has possession of any part thereof with or
without notice or process of law, and for that purpose may enter upon
Pledgor's premises where any of the Pledged Collateral is located and
remove such Pledged Collateral and use in connection with such removal
any and all services, supplies, aids and other facilities of Pledgor.
(ii) Instruct the obligor or obligors on any agreement, instrument
or other obligation (including, without limitation, the Receivables and
Contracts) constituting the Pledged Collateral to make any payment
required by the terms of such instrument or agreement directly to
Collateral Agent; provided, however, that in the event that any such
payments are made directly to Pledgor, prior to receipt by any such
obligor of such instruction, Pledgor shall segregate all amounts received
pursuant thereto in a separate account and pay the same promptly to
Collateral Agent.
(iii) Sell, assign or otherwise liquidate, or direct Pledgor to sell,
assign or otherwise liquidate, any or all investments made in whole or in
part with the Pledged Collateral or any part thereof, and take possession
of the proceeds of any such sale, assignment or liquidation.
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(iv) Take possession of the Pledged Collateral or any part thereof,
by directing Pledgor in writing to deliver the same to Collateral Agent
at any place or places so designated by Collateral Agent, in which event
Pledgor shall at its own expense: (a) forthwith cause the same to be
moved to the place or places designated by Collateral Agent and there
delivered to Collateral Agent; (b) store and keep any Pledged Collateral
so delivered to Collateral Agent at such place or places pending further
action by Collateral Agent; and (c) while the Pledged Collateral shall be
so stored and kept, provide such security and maintenance services as
shall be necessary to protect the same and to preserve and maintain them
in good condition. Pledgor's obligation to deliver the Pledged Collateral
is of the essence of this Agreement. Upon application to a court of
equity having jurisdiction, Collateral Agent shall be entitled to a
decree requiring specific performance by Pledgor of such obligation.
(b) Remedies; Disposition of the Pledged Collateral.
(i) Upon the occurrence of an Event of Default, Collateral Agent
may from time to time exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on
default under the UCC, and Collateral Agent may also in its sole
discretion, without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or at any of Collateral
Agent's offices or elsewhere, for cash, on credit or for future delivery,
and at such price or prices and upon such other terms as Collateral Agent
may deem commercially reasonable. Collateral Agent or any other Secured
Party or any of their respective Affiliates may be the purchaser of any
or all of the Pledged Collateral at any such sale and shall be entitled,
for the purpose of bidding and making settlement or payment of the
purchase price for all or any portion of the Pledged Collateral sold at
such sale, to use and apply any of the Secured Obligations owed to such
Person as a credit on account of the purchase price of any Pledged
Collateral payable by such Person at such sale. Each purchaser at any
such sale shall acquire the property sold absolutely free from any claim
or right on the part of Pledgor, and Pledgor hereby waives, to the
fullest extent permitted by law, all rights of redemption, stay and/or
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appraisal which it now has or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted. Collateral
Agent shall not be obligated to make any sale of Pledged Collateral
regardless of notice of sale having been given. Collateral Agent may
adjourn any public or private sale from time to time by announcement at
the time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
Pledgor hereby waives, to the fullest extent permitted by law, any claims
against Collateral Agent arising by reason of the fact that the price at
which any Pledged Collateral may have been sold at such a private sale
was less than the price which might have been obtained at a public sale,
even if Collateral Agent accepts the first offer received and does not
offer such Pledged Collateral to more than one offeree.
(ii) Pledgor acknowledges and agrees that, to the extent notice of
sale shall be required by law, ten (10) days' notice to Pledgor of the
time and place of any public sale or of the time after which any private
sale or other intended disposition is to take place shall be commercially
reasonable notification of such matters. No notification need be given to
Pledgor if it has signed, after the occurrence of an Event of Default, a
statement renouncing or modifying any right to notification of sale or
other intended disposition.
(c) Waiver of Claims. Pledgor hereby waives, to the fullest extent
permitted by applicable law, notice or judicial hearing in connection with
Collateral Agent's taking possession or Collateral Agent's disposition of any
of the Pledged Collateral, including, without limitation, any and all prior
notice and hearing for any prejudgment remedy or remedies and any such right
which Pledgor would otherwise have under law, and Pledgor hereby further
waives, to the fullest extent permitted by applicable law: (i) all damages
occasioned by such taking of possession; (ii) all other requirements as to the
time, place and terms of sale or other requirements with respect to the
enforcement of Collateral Agent's rights hereunder; and (iii) all rights of
redemption, appraisal, valuation, stay, extension or moratorium now or
hereafter in force under any applicable law. Any sale of, or the grant of
options to purchase, or any other realization upon, any Pledged Collateral
shall operate to divest all right, title, interest, claim and demand, either at
law or in equity, of Pledgor therein and
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thereto, and shall be a perpetual bar both at law and in equity against Pledgor
and against any and all Persons claiming or attempting to claim the Pledged
Collateral so sold, optioned or realized upon, or any part thereof, from,
through or under Pledgor.
(d) Certain Sales of Pledged Collateral. Pledgor recognizes that,
by reason of certain prohibitions contained in law, rules, regulations or
orders of any foreign Governmental Authority, Collateral Agent may be
compelled, with respect to any sale of all or any part of the Pledged
Collateral, to limit purchasers to those who meet the requirements of such
foreign Governmental Authority. Pledgor acknowledges that any such sales may be
at prices and on terms less favorable to Collateral Agent than those obtainable
through a public sale without such restrictions, and, notwithstanding such
circumstances, agrees that any such restricted sale shall be deemed to have
been made in a commercially reasonable manner.
Section 11. Application of Proceeds. The proceeds received by
Collateral Agent in respect of any sale of, collection from or other
realization upon all or any part of the Pledged Collateral pursuant to the
exercise by Collateral Agent of its remedies as a secured creditor as provided
in Section 10 hereof shall be applied, together with any other sums then held
by Collateral Agent pursuant to this Agreement, promptly by Collateral Agent as
follows:
First, to the payment of all costs and expenses, fees, commissions
and taxes of such sale, collection or other realization, including,
without limitation, compensation to Collateral Agent and its agents and
counsel, and all expenses, liabilities and advances made or incurred by
Collateral Agent in connection therewith, together with interest on each
such amount at the highest rate then in effect under the Amended and
Restated Credit Agreement from and after the date such amount is due,
owing or unpaid until paid in full;
Second, to the payment of all other costs and expenses of such
sale, collection or other realization, including, without limitation,
compensation to the Banks and their agents and counsel and all costs,
liabilities and indebtedness made or incurred by the Banks in connection
therewith, together with interest on each such amount at the highest rate
then in effect under the Amended and
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Restated Credit Agreement from and after the date such amount is due,
owing or unpaid until paid in full;
Third, without duplication of amounts applied pursuant to clauses
First and Second above, to the indefeasible payment in full in cash of
the Secured Obligations in accordance with the terms of the Amended and
Restated Credit Agreement; and
Fourth, the balance, if any, to the Person lawfully entitled
thereto (including Pledgor or its successors or assigns).
Section 12. Expenses. Pledgor will upon demand pay to Collateral
Agent the amount of any and all reasonable expenses, including the fees and
expenses of its counsel and the reasonable fees and expenses of any experts and
agents which Collateral Agent may incur in connection with (i) the collection
of the Secured Obligations, (ii) the enforcement and administration of this
Agreement, (iii) the custody or preservation of, or the sale of, collection
from, or other realization upon, any of the Pledged Collateral, (iv) the
exercise or enforcement of any of the rights of Collateral Agent or any Secured
Party hereunder or (v) the failure by Pledgor to perform or observe any of the
provisions hereof. All amounts payable by Pledgor under this Section 12 shall
be due upon demand and shall be part of the Secured Obligations. Pledgor's
obligations under this Section shall survive the termination of this Agreement
and the discharge of Pledgor's other obligations hereunder.
Section 13. No Waiver; Cumulative Remedies.
(a) No failure on the part of Collateral Agent to exercise, no
course of dealing with respect to, and no delay on the part of Collateral Agent
in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy hereunder preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by law.
(b) In the event Collateral Agent shall have instituted any
proceeding to enforce any right, power or remedy under this Agreement by
foreclosure, sale, entry or otherwise, and such proceeding shall have been
discontinued or abandoned
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for any reason or shall have been determined adversely to Collateral Agent,
then and in every such case, Pledgor, Collateral Agent and each holder of any
of the Secured Obligations shall be restored to their respective former
positions and rights hereunder with respect to the Pledged Collateral, and all
rights, remedies and powers of Collateral Agent and the Secured Parties shall
continue as if no such proceeding had been instituted.
Section 14. Collateral Agent. Collateral Agent has been appointed
as collateral agent pursuant to the Amended and Restated Credit Agreement. The
actions of Collateral Agent hereunder are subject to the provisions of the
Amended and Restated Credit Agreement. Collateral Agent shall have the right
hereunder to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking action (including,
without limitation, the release or substitution of Pledged Collateral), in
accordance with this Agreement and the Amended and Restated Credit Agreement.
Collateral Agent may resign and a successor Collateral Agent may be appointed
in the manner provided in the Amended and Restated Credit Agreement. Upon the
acceptance of any appointment as Collateral Agent by a successor Collateral
Agent, that successor Collateral Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent under this Agreement, and the retiring Collateral Agent shall
thereupon be discharged from its duties and obligations under this Agreement.
After any retiring Collateral Agent's resignation, the provisions of this
Agreement shall inure to its benefit as to any actions taken or omitted to be
taken by it under this Agreement while it was Collateral Agent.
Section 15. Collateral Agent May Perform; Collateral Agent
Appointed Attorney-in-Fact. If Pledgor shall fail to do any act or thing that
it has covenanted to do hereunder or if any warranty on the part of Pledgor
contained herein shall be breached, Collateral Agent or any Secured Party may
(but shall not be obligated to) do the same or cause it to be done or remedy
any such breach, and may expend funds for such purpose. Any and all amounts so
expended by Collateral Agent or such Secured Party shall be paid by Pledgor
promptly upon demand therefor, with interest at the highest rate then in effect
under the Amended and Restated Credit Agreement during the period from and
including the date on which such funds were so expended to the date of
repayment. Pledgor's obligations under this Section 15 shall survive the
termination of this Agreement
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and the discharge of Pledgor's other obligations under this Agreement, the
Amended and Restated Credit Agreement, any Interest Rate Agreement and the
other Credit Documents. Pledgor hereby appoints Collateral Agent its
attorney-in-fact, with full authority in the place and stead of Pledgor and in
the name of Pledgor, or otherwise, from time to time in Collateral Agent's
discretion to take any action and to execute any instrument consistent with the
terms of this Agreement and the other Credit Documents which the Collateral
Agent may deem necessary or advisable to accomplish the purposes of this
Agreement. The foregoing grant of authority is a power of attorney coupled with
an interest and such appointment shall be irrevocable for the term of this
Agreement. Pledgor hereby ratifies all that such attorney shall lawfully do or
cause to be done by virtue hereof.
Section 16. Indemnity.
(a) Indemnity. Pledgor agrees to indemnify, pay and hold harmless
the Collateral Agent and each of the Secured Parties and the officers,
directors, employees, agents and affiliates of the Collateral Agent and each of
the Secured Parties (collectively called the "Indemnitees") from and against
any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs (including, without limitation,
settlement costs), reasonable expenses or disbursements of any kind or nature
whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not such Indemnitee shall be designated a party thereto), which may
be imposed on, incurred by, or asserted against that Indemnitee, in any manner
relating to or arising out of this Agreement, any Interest Rate Agreement or
any other Credit Document (including, without limitation, any misrepresentation
by Pledgor in this Agreement, any Interest Rate Agreement or any other Credit
Document) (the "Indemnified Liabilities"); provided, however, that Pledgor
shall have no obligation to an Indemnitee hereunder with respect to Indemnified
Liabilities arising from the gross negligence or willful misconduct of that
Indemnitee. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, Pledgor shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnitees or any of them.
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(b) Survival. The obligations of Pledgor contained in this
Section 16 shall survive the termination of this Agreement and the discharge of
Pledgor's other obligations under this Agreement, any Interest Rate Agreement
and under the other Credit Documents.
(c) Reimbursement. Any amounts paid by any Indemnitee as to which
such Indemnitee has the right to reimbursement shall constitute Secured
Obligations secured by the Pledged Collateral.
Section 17. Modification in Writing. No amendment, modification,
supplement, termination or waiver of or to any provision of this Agreement, nor
consent to any departure by Pledgor therefrom, shall be effective unless the
same shall be made in accordance with the terms of the Amended and Restated
Credit Agreement and unless in writing and signed by Collateral Agent. Any
amendment, modification or supplement of or to any provision of this Agreement,
any waiver of any provision of this Agreement and any consent to any departure
by Pledgor from the terms of any provision of this Agreement shall be effective
only in the specific instance and for the specific purpose for which made or
given. Except where notice is specifically required by this Agreement or any
other Credit Document, no notice to or demand on Pledgor in any case shall
entitle Pledgor to any other or further notice or demand in similar or other
circumstances.
Section 18. Termination; Release. When all the Secured Obligations
have been paid in full and the Commitments of the Banks to make any Loan or to
issue any Letter of Credit under the Amended and Restated Credit Agreement
shall have expired or been sooner terminated, this Agreement shall terminate.
Upon termination of this Agreement or any release of Pledged Collateral in
accordance with the provisions of the Amended and Restated Credit Agreement,
Collateral Agent shall, upon the request and at the sole cost and expense of
Pledgor, forthwith assign, transfer and deliver to Pledgor, against receipt and
without recourse to or warranty by Collateral Agent, such of the Pledged
Collateral to be released (in the case of a release) as may be in possession of
Collateral Agent and as shall not have been sold or otherwise applied pursuant
to the terms hereof, and, with respect to any other Pledged Collateral, proper
instruments (including UCC termination statements on Form UCC-3) acknowledging
the termination of this Agreement or the release of such Pledged Collateral, as
the case may be.
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Section 19. Definitions. The following terms shall have the
following meanings. All such definitions shall be equally applicable to the
singular and plural forms of the terms defined.
"Documents" shall have the meaning assigned to that term under
the UCC.
"Instrument" shall have the meaning assigned that term under
the UCC.
"Inventory" shall mean, all "inventory", as such term is defined in
the UCC, and, in any event, shall include, without limitation, wherever
located, and whether now existing or hereafter acquired, all raw materials,
work in process, returned goods, finished goods, samples and consigned goods to
the extent of the consignee's interest therein, materials and supplies of any
kind or nature which are or might be used in connection with the manufacture,
printing, publication, packing, shipping, advertising, selling or finishing of
any such goods, and all other products, goods, materials and supplies.
"Proceeds" shall mean all "proceeds", as such term is defined in
the UCC, and, in any event, shall include, without limitation, any and all (i)
proceeds of any insurance (except payments made to a Person which is not a
party to this Agreement), indemnity, warranty or guaranty payable to Collateral
Agent or to Pledgor from time to time with respect to any of the Pledged
Collateral, (ii) payments (in any form whatsoever) made or due and payable to
Pledgor from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Pledged
Collateral by any Governmental Authority (or any person acting on behalf of a
Governmental Authority), (iii) instruments representing obligations to pay
amounts in respect of Inventory or Receivables, (iv) products of the Pledged
Collateral and (v) other amounts from time to time paid or payable under or in
connection with any of the Pledged Collateral.
"Receivables" shall mean all of Pledgor's rights to payment for
goods sold or leased or services performed by Pledgor or any other party,
whether now in existence or arising from time to time hereafter, including any
"account", as such term is defined in the UCC, and all rights evidenced by an
account, contract, security agreement, chattel paper, or other evidence of
indebtedness or security together with (i) all security pledged, assigned,
hypothecated or granted to or held
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by Pledgor to secure the foregoing, (ii) general intangibles arising out of
Pledgor's rights in any goods, the sale of which gave rise thereto, (iii) all
guarantees, endorsements and indemnifications on, or of, any of the foregoing,
(iv) all powers of attorney for the execution of any evidence of indebtedness
or security or other writing in connection therewith and (v) all evidences of
the filing of financing statements and other statements and the registration of
other instruments in connection therewith and amendments thereto, notices to
other creditors or secured parties, and certificates from filing or other
registration officers.
Section 20. Notices. Unless otherwise provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered, if to Pledgor, at Xxxxx Aluminum
Corporation, 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
Attention: Chief Financial Officer, with a copy to: Kramer, Levin, Naftalis,
Nessin, Xxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx X. Xxxxxx , if to Collateral Agent, at Banque Indosuez, New York
Branch, 1211 Avenue of the Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: X. Xxxxxx Xxxxxxx or, at such other address as shall be designated
by either party in a written notice to the other party complying as to delivery
with the terms of this Section 20. All such notices and communications shall,
when mailed, telegraphed, telecopied, or cabled or sent by overnight courier,
be effective two days after being deposited in the mails, when delivered to the
telegraph company, cable company or overnight courier, as the case may be, or
when sent by telex or telecopier, except that notices and communications to
Pledgee shall not be effective until received by Pledgee.
Section 21. Continuing Security Interest; Assignment. This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (i) be binding upon Pledgor, its successors and assigns and (ii)
inure, together with the rights and remedies of Collateral Agent hereunder, to
the benefit of Collateral Agent and the other Secured Parties and each of their
respective successors, transferees and assigns; no other Persons (including,
without limitation, any other creditor of Pledgor) shall have any interest
herein or any right or benefit with respect hereto. Without limiting the
generality of the foregoing clause (ii), any Bank may assign or otherwise
transfer any indebtedness held by it secured by this
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Agreement to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Bank, herein or
otherwise, subject however, to the provisions of the Amended and Restated
Credit Agreement and any applicable Interest Rate Agreement.
Section 22. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS,
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PROPERTY ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
Section 23. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST PLEDGOR WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE
OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT PLEDGOR ACCEPTS FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY,
THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES
TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT.
PLEDGOR DESIGNATES AND APPOINTS XXXXXXX X. XXXXXX, ESQ., c/o KRAMER, LEVIN,
NAFTALIS, NESSEN, KAMEN & XXXXXXX, 000 XXXXX XXXXXX, XXX XXXX, XXX XXXX 00000
AND SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY PLEDGOR IRREVOCABLY
AGREEING IN WRITING TO SO SERVE, AS ITS AGENT TO RECEIVE ON ITS BEHALF, SERVICE
OF ALL PROCESS IN ANY SUCH PROCEEDING, SUCH SERVICE BEING HEREBY ACKNOWLEDGED
BY PLEDGOR TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A COPY OF SUCH
PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO PLEDGOR AT ITS ADDRESS
PROVIDED FOR IN SECTION 20 HEREOF EXCEPT THAT UNLESS OTHERWISE PROVIDED BY
APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF
SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY PLEDGOR REFUSES TO ACCEPT
SERVICE, PLEDGOR HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE
SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF COLLATERAL AGENT
TO BRING PROCEEDINGS AGAINST PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION.
Section 24. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without
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invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 25. Execution in Counterparts. This Agreement and any
amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original, but all such counterparts together shall constitute one and the
same agreement.
Section 26. Headings. The Section headings used in this Agreement
are for convenience of reference only and shall not affect the construction of
this Agreement.
Section 27. Obligations Absolute. All obligations of Pledgor
hereunder shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of either of Pledgor
or any other Credit Party;
(ii) any lack of validity or enforceability of the Amended and
Restated Credit Agreement, any Interest Rate Agreement, any Letter of
Credit or any other Credit Document, or any other agreement or instrument
relating thereto;
(iii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Amended
and Restated Credit Agreement, any Letter of Credit or any other
agreement or instrument relating thereto;
(iv) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to any
departure from any guarantee, for all or any of the Secured Obligations;
(v) any exercise or non-exercise, or any waiver of any right,
remedy, power or privilege under or in respect of this Agreement, except
as specifically set forth in a waiver granted pursuant to the provisions
of Section 17 hereof; or
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(vi) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, Pledgor.
Section 28. Collateral Agent's Right to Sever Indebtedness. (a)
Pledgor acknowledges that (i) the Pledged Collateral does not constitute the
sole source of security for the payment and performance of the Secured
Obligations and that the Secured Obligations are also secured by other types of
property of Pledgor and its Affiliates in other jurisdictions (all such
property, collectively, the "Collateral"), (ii) the number of such
jurisdictions and the nature of the transaction of which this instrument is a
part are such that it would have been impracticable for the parties to allocate
to each item of Collateral a specific loan amount and to execute in respect of
such item a separate credit agreement and (iii) Pledgor intends that Collateral
Agent have the same rights with respect to the Pledged Collateral, in any
judicial proceeding relating to the exercise of any right or remedy hereunder
or otherwise, that Collateral Agent would have had if each item of Collateral
had been pledged or encumbered pursuant to a separate credit agreement and
security instrument. In furtherance of such intent, Pledgor agrees to the
greatest extent permitted by law that Collateral Agent may at any time by
notice (an "Allocation Notice") to Pledgor allocate a portion of the Secured
Obligations (the "Allocated Indebtedness") to all or a specified portion of the
Pledged Collateral and sever from the remaining Secured Obligations the
Allocated Indebtedness. From and after the giving of an Allocation Notice with
respect to any of the Pledged Collateral, the Secured Obligations hereunder
shall be limited to the extent set forth in the Allocation Notice and (as so
limited) shall, for all purposes, be construed as a separate credit obligation
of Pledgor unrelated to the other transactions contemplated by the Amended and
Restated Credit Agreement, any Interest Rate Agreement, any other Credit
Document or any document related to any thereof. To the extent that the
proceeds of any judicial proceeding relating to the exercise of any right or
remedy hereunder of the Pledged Collateral shall exceed the Allocated
Indebtedness, such proceeds shall belong to Pledgor and shall not be available
hereunder to satisfy any Secured Obligations of Pledgor other than the
Allocated Indebtedness. In any action or proceeding to exercise any right or
remedy under this Agreement which is commenced after the giving by Collateral
Agent of an Allocation Notice, the Allocation Notice shall be conclusive proof
of the limits of the Secured Obligations hereby secured, and Pledgor may
introduce, by way of defense or counterclaim, evidence thereof
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in any such action or proceeding. Notwithstanding any provision of this Section
28, the proceeds received by Collateral Agent pursuant to this Agreement shall
be applied by Collateral Agent in accordance with the provisions of Section 11
hereof.
(b) Pledgor hereby waives to the greatest extent permitted under
law the right to a discharge of any of the Secured Obligations under any
statute or rule of law now or hereafter in effect which provides that the
exercise of any particular right or remedy as provided for herein (by judicial
proceedings or otherwise) constitutes the exclusive means for satisfaction of
the Secured Obligations or which makes unavailable any further judgment or any
other right or remedy provided for herein because Collateral Agent elected to
proceed with the exercise of such initial right or remedy or because of any
failure by Collateral Agent to comply with laws that prescribe conditions to
the entitlement to such subsequent judgment or the availability of such
subsequent right or remedy. In the event that, notwithstanding the foregoing
waiver, any court shall for any reason hold that such subsequent judgment or
action is not available to Collateral Agent, Pledgor shall not (i) introduce in
any other jurisdiction any judgment so holding as a defense to enforcement
against Pledgor of any remedy in the Amended and Restated Credit Agreement, any
Interest Rate Agreement or any other Credit Document or (ii) seek to have such
judgment recognized or entered in any other jurisdiction, and any such judgment
shall in all events be limited in application only to the state or jurisdiction
where rendered and only with respect to the collateral referred to in such
judgment.
(c) In the event any instrument in addition to the Allocation
Notice is necessary to effectuate the provisions of this Section 28, including,
without limitation, any amendment to this Agreement, any substitute promissory
note or affidavit or certificate of any kind, Collateral Agent may execute and
deliver such instrument as the attorney-in-fact of Pledgor. Such power of
attorney is coupled with an interest and is irrevocable.
(d) Notwithstanding anything set forth herein to the contrary, the
provisions of this Section 28 shall be effective only to the maximum extent
permitted by law.
Section 29. Future Advances. This Agreement shall
secure the payment of any amounts advanced from time to time
pursuant to the Amended and Restated Credit Agreement.
IN WITNESS WHEREOF, Pledgor has caused this Agreement to be duly
executed and delivered by its duly authorized officer as of the date first
above written.
XXXXX ALUMINUM CORPORATION,
as Pledgor
By: /s/
____________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ,
as Collateral Agent
By: /s/
____________________________
Name:
Title:
By: /s/
____________________________
Name:
Title:
