EXHIBIT 10.3
SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of October 19, 2007 (this "SECURITY
AGREEMENT") is by and among National Coal of Alabama, Inc., an Alabama
corporation (formerly known as Xxxx Steel Products, Inc.) ("COMPANY"), each
affiliate of the Company party hereto from time to time (together with the
Company, the "GRANTORS" and individually, each a "GRANTOR") and TCW Asset
Management Company, a California corporation (the "SECURED PARTY"), as
Administrative Agent for the ratable benefit of itself, the Holders (as defined
below) and the Swap Counterparties (as defined below) (together with the
Administrative Agent and the Holders, individually a "BENEFICIARY", and
collectively, the "BENEFICIARIES").
RECITALS
A. This Security Agreement is entered into in connection with that
certain Note Purchase Agreement dated as of October 19, 2007 (as it has been or
may be amended, supplemented or otherwise modified from time to time, the "NOTE
PURCHASE AGREEMENT"), among the Company, certain holders party thereto from time
to time, (individually, a "HOLDER" and collectively, the "HOLDERS"), and TCW
Asset Management Company, as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT").
B. Each Grantor (other than the Company) is an Affiliate of the Company
and will derive substantial direct and indirect benefit from (i) the
transactions contemplated by the Note Purchase Agreement and the other Note
Documents (as defined in the Note Purchase Agreement) and (ii) the Hedging
Contracts (as defined in the Note Purchase Agreement) entered into by the
Company or any of its Subsidiaries with a Holder or an Affiliate of a Holder
(each such counterparty, a "SWAP COUNTERPARTY").
D. It is a requirement under the Note Purchase Agreement that the
Grantors shall secure the due payment and performance of all Obligations (as
defined in the Note Purchase Agreement) by entering into this Security
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged and confessed, each Grantor hereby agrees with the Secured Party
for the benefit of the Beneficiaries as follows:
Section 1. DEFINITIONS; INTERPRETATION. (a) All capitalized terms not
otherwise defined in this Security Agreement that are defined in the Note
Purchase Agreement shall have the meanings assigned to such terms by the Note
Purchase Agreement. Any terms used in this Security Agreement that are defined
in the Code (as defined below) and not otherwise defined herein or in the Note
Purchase Agreement, shall have the meanings assigned to those terms by the Code.
The following terms shall have the meanings specified below:
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"ACCOUNT DEBTOR" means any Person who is or may become obligated with
respect to, or on account of, an Account, Chattel Paper or General
Intangible (including a payment intangible).
"ACCOUNTS" means all "accounts," as such term is defined in the Code,
now owned or hereafter acquired by any Grantor, including: (i) all
accounts receivable, other receivables, book debts and other forms of
obligations (other than forms of obligations evidenced by Chattel Paper
or Instruments) (including any such obligations that may be
characterized as an account or contract right under the Code); (ii) all
of such Grantor's rights in, to and under all purchase orders or
receipts for goods or services; (iii) all of such Grantor's rights to
any goods represented by any of the foregoing (including unpaid
sellers' rights of rescission, replevin, reclamation and stoppage in
transit and rights to returned, reclaimed or repossessed goods); (iv)
all rights to payment due to such Grantor for Goods or other property
sold, leased, licensed, assigned or otherwise disposed of, for a policy
of insurance issued or to be issued, for a secondary obligation
incurred or to be incurred, for energy provided or to be provided, for
the use or hire of a vessel under a charter or other contract, arising
out of the use of a credit card or charge card, or for services
rendered or to be rendered by such Grantor or in connection with any
other transaction (whether or not yet earned by performance on the part
of such Grantor); (v) all health care insurance receivables; and (vi)
all collateral security of any kind given by any Account Debtor or any
other Person with respect to any of the foregoing.
"BOOKS AND RECORDS" means all books, records, board minutes, contracts,
licenses, insurance policies, environmental audits, business plans,
files, computer files, computer disks and other data and software
storage and media devices, accounting books and records, financial
statements (actual and pro forma), filings with Governmental
Authorities and any and all records and instruments relating to the
Collateral or any Grantor's business.
"CHATTEL PAPER" means all "chattel paper," as such term is defined in
the Code, including electronic chattel paper, now owned or hereafter
acquired by any Grantor.
"CODE" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of New York; provided, that to the
extent that the Code is used to define any term herein or in any Note
Document and such term is defined differently in different Articles or
Divisions of the Code, the definition of such term contained in Article
or Division 9 shall govern; provided further, that in the event that,
by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of, or remedies with respect to, Secured Party's
Lien on any Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of New York, the term
"Code" shall mean the Uniform Commercial Code as in effect in such
other jurisdiction for purposes of the provisions of this Agreement
relating to such attachment, perfection, priority or remedies and for
purposes of definitions related to such provisions.
"COLLATERAL" has the meaning assigned to it in Section 2.01 of this
Security Agreement.
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"CONTRACT DOCUMENTS" means all Instruments, Chattel Paper, letters of
credit, bonds, guarantees or similar documents evidencing,
representing, arising from or existing in respect of, relating to,
securing or otherwise supporting the payment of, the Contract Rights.
"CONTRACT RIGHTS" means (i) all (A) of any Grantor's rights to payment
under any Contract or Contract Document and (B) payments due and to
become due to any Grantor under any Contract or Contract Document, in
each case whether as contractual obligations, damages or otherwise;
(ii) all of any Grantor's claims, rights, powers, or privileges and
remedies under any Contract or Contract Document; and (iii) all of any
Grantor's rights under any Contract or Contract Document to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, waiver or approval together with full power and authority with
respect to any Contract or Contract Document to demand, receive,
enforce or collect any of the foregoing rights or any property which is
the subject of any Contract or Contract Document, to enforce or execute
any checks, or other instruments or orders, to file any claims and to
take any action which, in the opinion of the Secured Party, may be
necessary or advisable in connection with any of the foregoing.
"CONTRACTS" means all the contracts, undertakings, or agreements (other
than rights evidenced by Chattel Paper, Documents or Instruments) in or
under which any Grantor may now or hereafter have any right, title or
interest, including any agreement relating to the terms of payment or
the terms of performance of any Account, and all exhibits, schedules
and other attachments to such contracts, as the same may be amended,
supplemented or otherwise modified or replaced from time to time.
"COPYRIGHT LICENSE" means rights under any written agreement now owned
or hereafter acquired by any Grantor granting the right to use any
Copyright or Copyright registration.
"COPYRIGHTS" means all of the following now owned or hereafter adopted
or acquired by any Grantor: (i) all copyrights in any original work of
authorship fixed in any tangible medium of expression, now known or
later developed, all registrations and applications for registration of
any such copyrights in the United States or any other country,
including registrations, recordings and applications, and supplemental
registrations, recordings, and applications in the United States
Copyright Office; and (ii) all Proceeds of the foregoing, including
license royalties and proceeds of infringement suits, the right to xxx
for past, present and future infringements, all rights corresponding
thereto throughout the world and all renewals and extensions thereof.
"DEPOSIT ACCOUNTS" means all "deposit accounts" as such term is defined
in the Code, now or hereafter held in the name of any Grantor.
"DOCUMENTS" means all "documents," as such term is defined in the Code,
now owned or hereafter acquired by any Grantor, including, without
limitation, any xxxx of lading, dock warrant, dock receipt, warehouse
receipt or order for the delivery of goods, and also any other document
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which in the regular course of business or financing is treated as
adequately evidencing that the Person in possession of it is entitled
to receive, hold and dispose of the document and the goods it covers.
"EQUIPMENT" means all "equipment" as such term is defined in the Code,
now owned or hereafter acquired by any Grantor, wherever located,
including any and all machinery, apparatus, equipment, fittings,
furniture, fixtures, motor vehicles and other tangible personal
property (other than Inventory) of every kind and description that may
be now or hereafter used in such Grantor's operations or that are owned
by such Grantor or in which such Grantor may have an interest, and all
parts, accessories and accessions thereto and substitutions and
replacements therefor.
"FIXTURES" means all "fixtures" as such term is defined in the Code,
now owned or hereafter acquired by any Grantor, including, without
limitation, any and all additions, substitutions and replacements of
any of the foregoing, wherever located together with all improvements
thereon and all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto.
"GENERAL INTANGIBLES" means all "general intangibles" or "payment
intangibles", as such terms are defined in the Code, now owned or
hereafter acquired by any Grantor, including all right, title and
interest that such Grantor may now or hereafter have in or under any
Contract, all payment intangibles, customer lists, Licenses,
Intellectual Property, interests in partnerships, joint ventures and
other business associations, permits, proprietary or confidential
information, inventions (whether or not patented or patentable),
technical information, procedures, designs, knowledge, know-how,
software, data bases, data, skill, expertise, experience, processes,
models, drawings, materials, Books and Records, Goodwill (including the
Goodwill associated with any Intellectual Property), all rights and
claims in or under insurance policies (including insurance for fire,
damage, loss, and casualty, whether covering personal property, real
property, tangible rights or intangible rights, all liability, life,
key-person, and business interruption insurance, and all unearned
premiums), uncertificated securities, chooses in action, deposit
accounts, rights to receive tax refunds and other payments, rights to
receive dividends, distributions, cash, Instruments and other property
in respect of or in exchange for pledged Stock and Investment Property,
and rights of indemnification.
"GOODS" means all "goods," as such term is defined in the Code, now
owned or hereafter acquired by any Grantor, wherever located, including
embedded software to the extent included in "goods" as defined in the
Code, manufactured homes, standing timber that is cut and removed for
sale and unborn young of animals.
"GOODWILL" means all goodwill, trade secrets, proprietary or
confidential information, technical information, procedures, formulae,
quality control standards, designs, operating and training manuals,
customer lists, and distribution agreements now owned or hereafter
acquired by any Grantor.
"INSTRUMENTS" means all "instruments," as such term is defined in the
Code, now owned or hereafter acquired by any Grantor, wherever located,
including, without limitation, all certificated securities and all
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promissory notes and other evidences of indebtedness, other than
instruments that constitute, or are a part of a group of writings that
constitute, Chattel Paper and any Negotiable Instrument.
"INSURANCE CONTRACTS" means all contracts and policies of insurance and
re-insurance maintained or required to be maintained by or on behalf of
any Grantor under the Note Documents.
"INTELLECTUAL PROPERTY" means any and all Licenses, Patents,
Copyrights, Trademarks, trade secrets and customer lists.
"INVENTORY" means all "inventory," as such term is defined in the Code,
now owned or hereafter acquired by any Grantor, wherever located,
including all inventory, merchandise, goods and other personal property
that are held by or on behalf of such Grantor for sale or lease or are
furnished or are to be furnished under a contract of service or that
constitute raw materials, work in process, finished goods, returned
goods, or materials or supplies of any kind, nature or description used
or consumed or to be used or consumed in such Grantor's business or in
the processing, production, packaging, promotion, delivery or shipping
of the same, including all supplies and embedded software.
"INVESTMENT PROPERTY" means all "investment property," as such term is
defined in the Code, now owned or hereafter acquired by a Grantor,
wherever located, including, without limitation, all securities
(whether certificated or uncertificated), security entitlements,
securities accounts, commodity contracts, and commodity accounts.
"LETTER-OF-CREDIT RIGHTS" means "letter-of-credit rights" as such term
is defined in the Code, now owned or hereafter acquired by any Grantor,
including rights to payment or performance under a letter of credit,
whether or not such Grantor, as beneficiary, has demanded or is
entitled to demand payment or performance.
"LICENSE" means any Copyright License, Patent License, Trademark
License or other license of rights or interests now held or hereafter
acquired by any Grantor.
"NEGOTIABLE INSTRUMENT" means a "negotiable instrument" as defined in
the Code.
"PATENT LICENSE" means rights under any written agreement now owned or
hereafter acquired by any Grantor granting any right with respect to
any invention on which a Patent is in existence.
"PATENTS" means all of the following in which any Grantor now holds or
hereafter acquires any interest: (i) all letters patent of the United
States or any other country, all registrations and recordings thereof,
and all applications for letters patent of the United States or any
other country, including registrations, recordings and applications in
the United States Patent and Trademark Office or in any similar office
or agency of the United States, any State or territory thereof, or any
other country; and (ii) all reissues, continuations,
continuations-in-part or extensions thereof.
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"PROCEEDS" means "proceeds," as such term is defined in the Code and,
in any event, shall include: (i) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to any Grantor from time to
time with respect to any Collateral; (ii) any and all payments (in any
form whatsoever) made or due and payable to any Grantor from time to
time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of any Collateral by any Governmental Authority
(or any Person acting under color of Governmental Authority); (iii) any
claim of any Grantor against third parties (a) for past, present or
future infringement of any Intellectual Property or (b) for past,
present or future infringement or dilution of any Trademark or
Trademark License or for injury to the goodwill associated with any
Trademark, Trademark registration or Trademark licensed under any
Trademark License; (iv) any recoveries by any Grantor against third
parties with respect to any litigation or dispute concerning any
Collateral, including claims arising out of the loss or nonconformity
of, interference with the use of, defects in, or infringement of rights
in, or damage to, Collateral; (v) all amounts collected on, or
distributed on account of, other Collateral, including dividends,
interest, distributions and Instruments with respect to Investment
Property and pledged Stock; and (vi) any and all other amounts, rights
to payment or other property acquired upon the sale, lease, license,
exchange or other disposition of Collateral and all rights arising out
of Collateral.
"PROPERTY" of any Grantor means any property or assets (whether real,
personal, or mixed, tangible or intangible) of such Grantor.
"SECURED OBLIGATIONS" means all Obligations now or hereafter existing,
including any extensions, modifications, substitutions, amendments and
renewals thereof, whether for principal, interest, fees, expenses,
indemnification, or otherwise.
"SECURITY AGREEMENT" means this Security Agreement, as the same may be
modified, supplemented or amended from time to time in accordance with
its terms.
"STOCK" means all certificated and uncertificated shares, options,
warrants, membership interests, general or limited partnership
interests, participation or other equivalents (regardless of how
designated) of or in a corporation, partnership, limited liability
company or equivalent entity whether voting or non-voting, including
common stock, preferred stock, or any other "equity security" (as such
term is defined in Rule 3a11-1 of the General Rules and Regulations
promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934).
"SUPPORTING OBLIGATIONS" means all "supporting obligations" as such
term is defined in the Code, including letters of credit and guaranties
issued in support of Accounts, Chattel Paper, Documents, General
Intangibles, Instruments, or Investment Property.
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"TRADEMARK LICENSE" means rights under any written agreement now owned
or hereafter acquired by any Grantor granting any right to use any
Trademark or Trademark registration.
"TRADEMARKS" means all of the following now owned or hereafter adopted
or acquired by any Grantor: (i) all trademarks, trade names, corporate
names, business names, trade styles, service marks, logos, other source
or business identifiers, prints and labels on which any of the
foregoing have appeared or appear, designs and general intangibles of
like nature (whether registered or unregistered), all registrations and
recordings thereof, and all applications in connection therewith,
including all registrations, recordings and applications in the United
States Patent and Trademark Office or in any similar office or agency
of the United States, any State or territory thereof, or any other
country or any political subdivision thereof, (ii) all reissues,
extensions or renewals thereof; and (iii) all goodwill associated with
or symbolized by any of the foregoing.
(b) All meanings to defined terms, unless otherwise indicated, are to
be equally applicable to both the singular and plural forms of the terms
defined. Article, Section, Schedule, and Exhibit references are to Articles and
Sections of and Schedules and Exhibits to this Security Agreement, unless
otherwise specified. All references to instruments, documents, contracts, and
agreements are references to such instruments, documents, contracts, and
agreements as the same may be amended, supplemented, and otherwise modified from
time to time, unless otherwise specified. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Security Agreement
shall refer to this Security Agreement as a whole and not to any particular
provision of this Security Agreement. As used herein, the term "including" means
"including, without limitation,". Paragraph headings have been inserted in this
Security Agreement as a matter of convenience for reference only and it is
agreed that such paragraph headings are not a part of this Security Agreement
and shall not be used in the interpretation of any provision of this Security
Agreement.
Section 2. ASSIGNMENT, PLEDGE AND GRANT OF SECURITY INTEREST.
2.01 As collateral security for the prompt and complete payment and
performance of the Secured Obligations, each Grantor hereby grants to the
Secured Party, on behalf of the Beneficiaries, a security interest in and Lien
upon all of its property and assets, whether real or personal, tangible or
intangible, and whether now owned or hereafter acquired, or in which it now has
or at any time in the future may acquire any right, title, or interest,
including all of the following property in which it now has or at any time in
the future may acquire any right, title or interest (all of the following,
together with any other collateral pledged to the Secured Party, for itself and
for the benefit of the Beneficiaries, pursuant to any other Note Document,
collectively, the "COLLATERAL"):
(a) all Accounts;
(b) all Deposit Accounts;
(c) all other bank accounts and all funds on deposit therein;
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(d) all money, cash and cash equivalents;
(e) all Contracts;
(f) all Investment Property;
(g) all Stock;
(h) all Goods (including Inventory, Equipment and Fixtures);
(i) all Chattel Paper, Documents and Instruments;
(j) all electronic Chattel Paper;
(k) all Books and Records;
(l) all General Intangibles (including all Intellectual Property,
contract rights, chores in action, payment intangibles and Software);
(m) all Letter-of-Credit Rights;
(n) all Supporting Obligations; and
(o) to the extent not otherwise included, all Proceeds, tort claims,
insurance claims and other rights to payment not otherwise included in the
foregoing;
(p) all products of all and any of the foregoing and all accessions to,
substitutions and replacements for, and rents and profits of, each of the
foregoing.
Each of the Grantors, the Secured Party, and each other Beneficiary agree that
this Agreement creates, and is intended to create, valid and continuing Liens
upon the Collateral in favor of the Secured Party, on behalf of the
Beneficiaries.
2.02 Notwithstanding anything contained herein to the contrary, it is
the intention of each Grantor, the Secured Party and the other Beneficiaries
that the amount of the Secured Obligations secured by each Grantor's interests
in any of its Property shall not be in excess of the maximum amount permitted by
fraudulent conveyance, fraudulent transfer and other similar law, rule or
regulation of any Governmental Authority applicable to such Grantor.
Accordingly, notwithstanding anything to the contrary contained in this Security
Agreement or in any other agreement or instrument executed in connection with
the payment of any of the Secured Obligations, the amount of the Secured
Obligations secured by each Grantor's interests in any of its Property pursuant
to this Security Agreement shall be limited to an aggregate amount equal to the
largest amount that would not render such Grantor's obligations hereunder or the
liens and security interest granted to the Secured Party hereunder subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provision of any other applicable law.
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2.03 Each Grantor acknowledges conclusively that such Grantor and the
Secured Party intend the security interest created hereunder in the Collateral
to attach immediately upon the execution of this Agreement, except in the case
of Collateral in which such Grantor subsequently acquires rights, in which case
such security interest shall attach contemporaneously with such Grantor
acquiring rights therein without the need for any further or other deed, act or
consideration. Such security interest shall be effective and shall attach as of
the date hereof whether the monies hereby secured or any part thereof shall
become owing by any Grantor before or after or upon the date of execution of
this Agreement. Each Grantor acknowledges conclusively that value has been
given.
Section 3. REPRESENTATIONS AND WARRANTIES. Each Grantor hereby
represents and warrants the following to the Secured Party and the other
Beneficiaries:
(a) RECORDS. Such Grantor's sole jurisdiction of formation and type of
organization are as set forth in SCHEDULE 1 attached hereto. All records
concerning the Accounts, General Intangibles, or any other Collateral applicable
to such Grantor are located at the address for such Grantor on such SCHEDULE 1.
None of the Accounts is evidenced by a promissory note or other instrument.
(b) OTHER LIENS. Such Grantor is, and will be the record, legal, and
beneficial owner of all of the Collateral pledged by such Grantor free and clear
of any Lien, except for the Permitted Liens. No effective financing statement or
other instrument similar in effect covering all or any part of the Collateral
is, or will be, on file in any recording office, except such as may be filed in
connection with this Security Agreement or in connection with other Permitted
Liens or for which satisfactory releases have been received by the Secured
Party.
(c) LIEN PRIORITY AND PERFECTION.
(i) Subject only to Permitted Liens, this Security Agreement
creates valid and continuing security interests in the Collateral
pledged by such Grantor, securing the payment and performance of all
the Secured Obligations. Upon the filing of financing statements with
the jurisdiction listed in SCHEDULE 1, the security interests granted
to the Secured Party hereunder will constitute valid first-priority
perfected security interests in all Collateral pledged by such Grantor
with respect to which a security interest can be perfected solely by
the filing of a financing statement, subject only to Permitted Liens.
(ii) No consent of any other Person and no authorization,
approval, or other action by, and no notice to or filing with any
Governmental Authority is required (A) for the grant by such Grantor of
the pledge, assignment, and security interest granted hereby or for the
execution, delivery, or performance of this Security Agreement by such
Grantor, (B) for the validity, perfection, or maintenance of the
pledge, assignment, lien, and security interest created hereby
(including the first-priority (subject to Permitted Liens) nature
thereof), except for security interests that cannot be perfected by the
filing of a financing statement under the Code, or (C) for the exercise
by the Secured Party of the rights provided for in this Security
Agreement or the remedies in respect of the Collateral pursuant to this
Security Agreement, except (1) those consents to assignment of
licenses, permits, approvals, and other rights that are as a matter of
law not assignable, (2) those consents, approvals, authorizations,
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actions, notices or filings which have been duly obtained or made and,
in the case of the maintenance of perfection, the filing of
continuation statements under the Code, and (3) those filings and
actions described in Section 3(c)(i) and any filings with the United
States Patent and Trademark Office or the United States Copyright
Office or any other Copyright, Patent or Trademark filings.
(d) TAX IDENTIFICATION NUMBER AND ORGANIZATIONAL NUMBER. The federal
tax identification number of such Grantor and the organizational number of such
Grantor are as set forth in SCHEDULE 1.
(e) TRADENAMES; PRIOR NAMES. Except as set forth on SCHEDULE 1, such
Grantor has not conducted business under any name other than its current name
during the last five years prior to the date of this Security Agreement.
(f) EXCLUSIVE CONTROL. Such Grantor has exclusive possession and
control of its respective Equipment and Inventory.
Section 4. COVENANTS.
(a) FURTHER ASSURANCES.
(i) Each Grantor agrees that from time to time, at its
expense, such Grantor shall promptly execute and deliver all
instruments and documents, and take all action, that may be reasonably
necessary, or that the Secured Party may reasonably request, in order
to perfect and protect any pledge, assignment, or security interest
granted or intended to be granted hereby or to enable the Secured Party
to exercise and enforce its rights and remedies hereunder with respect
to any Collateral. Without limiting the generality of the foregoing,
each Grantor (A) at the request of Secured Party, shall execute such
instruments, endorsements or notices, as may be reasonably necessary or
as the Secured Party may reasonably request, in order to perfect and
preserve the assignments and security interests granted or purported to
be granted hereby, (B) shall, at the reasonable request of the Secured
Party, xxxx conspicuously each material document included in the
Collateral, each Chattel Paper included in the Accounts, and each of
its records pertaining to the Collateral with a legend, in form and
substance satisfactory to the Secured Party, indicating that such
document, Chattel Paper, or record is subject to the pledge,
assignment, and security interest granted hereby, (C) shall, if any
Collateral shall be evidenced by a promissory note or other instrument
or chattel paper, deliver and pledge to the Secured Party hereunder
such note or instrument or chattel paper duly endorsed and accompanied
by duly executed instruments of transfer or assignment, all in form and
substance satisfactory to the Secured Party, and (D) authorizes the
Secured Party to file any financing statements, amendments or
continuations without the signature of such Grantor to the extent
permitted by applicable law in order to perfect or maintain the
perfection of any security interest granted under this Security
Agreement (including, without limitation, financing statements using an
"all assets" or "all personal property" collateral description).
(ii) Each Grantor shall pay all filing, registration and
recording fees and all refiling, re-registration and re-recording fees,
and all other reasonable expenses incident to the execution and
acknowledgment of this Security Agreement, any assurance, and all
federal, state, county and municipal stamp taxes and other taxes,
duties, imports, assessments and charges arising out of or in
connection with the execution and delivery of this Security Agreement,
any agreement supplemental hereto, any financing statements, and any
instruments of further assurance.
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(iii) Each Grantor shall promptly provide to the Secured Party
all information and evidence the Secured Party may reasonably request
concerning the Collateral to enable the Secured Party to enforce the
provisions of this Security Agreement.
Section 5. CHANGE OF NAME; STATE OF FORMATION. Each Grantor shall give
the Secured Party at least 30 days' prior written notice before it (i) in the
case of any Grantor that is not a "registered organization" (as such term is
defined in Section 9-102 of the Code), changes the location of its principal
place of business and chief executive office, (ii) changes the location of its
jurisdiction of formation or organization, (iii) changes the location of the
original copies of any Chattel Paper evidencing Accounts, or (iv) uses a trade
name other than its current name used on the date hereof. Other than as
permitted by the Note Purchase Agreement, no Grantor shall amend, supplement,
modify or restate its articles or certificate of incorporation, bylaws, limited
liability company agreements, or other equivalent organizational documents, nor
amend its name or change its jurisdiction of incorporation, organization or
formation with the prior written consent of the Secured Party.
(a) RIGHT OF INSPECTION. Each Grantor shall hold and preserve, at its
own cost and expense satisfactory and complete records of the Collateral,
including, but not limited to, Instruments, Chattel Paper, Contracts, and
records with respect to the Accounts. Each Grantor shall permit any
representative of the Administrative Agent to inspect such books and records in
accordance with Section 7.3 of the Note Purchase Agreement.
(b) LIABILITY UNDER CONTRACTS AND ACCOUNTS. Notwithstanding anything in
this Security Agreement to the contrary, (i) the execution of this Security
Agreement shall not release any Grantor from its obligations and duties under
any of the Contract Documents, or any other contract or instrument which are
part of the Collateral and Accounts included in the Collateral, (ii) the
exercise by the Secured Party of any of its rights hereunder shall not release
any Grantor from any of its duties or obligations under any Contract Documents,
or any other Contract or Instrument which are part of the Collateral and
Accounts included in the Collateral, and (iii) the Secured Party shall not have
any obligation or liability under any Contract Documents, or any other contract
or instrument which are part of the Collateral and Accounts included in the
Collateral by reason of the execution and delivery of this Security Agreement,
nor shall the Secured Party be obligated to perform any of the obligations or
duties of any Grantor thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder.
(c) TRANSFER OF CERTAIN COLLATERAL; RELEASE OF CERTAIN SECURITY
INTEREST. Each Grantor agrees that it shall not sell, assign, or otherwise
dispose of any Collateral, except as otherwise permitted under the Note Purchase
Agreement. The Secured Party shall promptly, at the Grantors' expense, execute
and deliver all further instruments and documents, and take all further action
that a Grantor may reasonably request in order to release its security interest
in any Collateral which is disposed of in accordance with the terms of the Note
Purchase Agreement.
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(d) ACCOUNTS. Each Grantor agrees that it will use commercially
reasonable efforts to ensure that each Account (i) is and will be, in all
material respects, the genuine, legal, valid, and binding obligations of the
account debtor in respect thereof, representing an unsatisfied obligation of
such account debtor, (ii) is and will be, in all material respects, enforceable
in accordance with its terms, is not and will not be subject to any setoffs,
defenses, taxes, counterclaims, except in the ordinary course of business, (iii)
is and will be, in all material respects, in compliance with all applicable
laws, whether federal, state, local or foreign, and (iv) which if evidenced by
Chattel Paper, will not require the consent of the account debtor in respect
thereof in connection with its assignment hereunder.
(e) NEGOTIABLE INSTRUMENTS. If any Grantor shall at any time hold or
acquire any Negotiable Instruments, including promissory notes, such Grantor
shall forthwith endorse, assign and deliver the same to the Secured Party,
accompanied by such instruments of transfer or assignment duly executed in blank
as the Secured Party may from time to time reasonably request; provided that so
long as no Event of Default shall have occurred and be continuing, (i) Grantors
may retain for collection in the ordinary course any Negotiable Instruments
(other than checks and drafts constituting payments in respect of Accounts)
received by it in the ordinary course of business and (ii) the Secured Party
shall, promptly upon request of the Grantors, make appropriate arrangements to
make any other Negotiable Instruments pledged by such Grantors and within the
Secured Party's control available to Grantors for purposes of presentation,
collection or renewal (any such arrangement to be effected, to the extent deemed
appropriate to the Secured Party, against trust receipt or like document).
(f) OTHER COVENANTS OF GRANTOR. Each Grantor agrees that (i) any action
or proceeding to enforce this Security Agreement may be taken by the Secured
Party either in such Grantor's name or in the Secured Party's name, as the
Secured Party may deem necessary, and (ii) such Grantor will, until the
indefeasible payment in full in cash of the Secured Obligations, the termination
of all Hedging Contracts, and the termination or expiration of the Commitments,
warrant and defend its title to the Collateral and the interest of the Secured
Party in the Collateral against any claim or demand of any Persons (other than
beneficiaries of Permitted Liens) which could reasonably be expected to
materially adversely affect such Grantor's title to, or the Secured Party's
right or interest in, such Collateral.
Section 6. TERMINATION OF SECURITY INTEREST. Upon the indefeasible
payment in full in cash of the Secured Obligations (other than contingent
indemnification obligations with respect to which no claim giving rise thereto
has been asserted), the termination of all Hedging Contracts, and the
termination or expiration of the Commitments, the security interest granted
hereby shall terminate and all rights to the Collateral shall revert to the
applicable Grantor to the extent such Collateral shall not have been sold or
otherwise applied pursuant to the terms hereof. Upon any such termination, the
Secured Party will, at the Grantors' expense, execute and deliver to the
applicable Grantor such documents (including, without limitation, UCC-3
termination statements) as such Grantor shall reasonably request to evidence
such termination; provided that the security interest in any Collateral
constituting an asset which the Grantors may dispose of under Section 8.5 of the
Note Purchase Agreement shall upon such disposition by a Grantor automatically
terminate and be released without the necessity of any further action or consent
by the Secured Party or any other Beneficiary.
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Section 7. REINSTATEMENT. If, at any time after payment in full of all
Secured Obligations and termination of the Secured Party's security interest,
any payments on the Secured Obligations previously made must be disgorged by the
Secured Party for any reason whatsoever, including, without limitation, the
insolvency, bankruptcy or reorganization of any Grantor or any other Person,
this Security Agreement and the Secured Party's security interests herein shall
be reinstated as to all disgorged payments as though such payments had not been
made, and each Grantor shall sign and deliver to the Secured Party all
documents, and shall do such other acts and things, as may be necessary to
reinstate and perfect the Secured Party's security interest. EACH GRANTOR SHALL
DEFEND AND INDEMNIFY EACH BENEFICIARY FROM AND AGAINST ANY CLAIM, DAMAGE, LOSS,
LIABILITY, COST OR EXPENSE UNDER THIS SECTION 7 (INCLUDING REASONABLE ATTORNEYS'
FEES AND EXPENSES) IN THE DEFENSE OF ANY SUCH ACTION OR SUIT INCLUDING SUCH
CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE ARISING AS A RESULT OF THE
INDEMNIFIED BENEFICIARY'S OWN NEGLIGENCE BUT EXCLUDING SUCH CLAIM, DAMAGE, LOSS,
LIABILITY, COST, OR EXPENSE THAT IS FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY
A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED
BENEFICIARY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Section 8. REMEDIES UPON EVENT OF DEFAULT.
(a) If any Event of Default has occurred and is continuing, the Secured
Party may (and shall at the written request of the Required Holders) (i) proceed
to protect and enforce the rights vested in it by this Security Agreement or
otherwise available to it, including but not limited to, the right to cause all
revenues and other moneys pledged hereby as Collateral to be paid directly to
it, and to enforce its rights hereunder to such payments and all other rights
hereunder by such appropriate judicial proceedings as it shall deem most
effective to protect and enforce any of such rights, either at law or in equity
or otherwise, whether for specific enforcement of any covenant or agreement
contained in any of the Contract Documents, or in aid of the exercise of any
power therein or herein granted, or for any foreclosure hereunder and sale under
a judgment or decree in any judicial proceeding, or to enforce any other legal
or equitable right vested in it by this Security Agreement or by law; (ii) cause
any action at law or suit in equity or other proceeding to be instituted and
prosecuted and enforce any rights hereunder or included in the Collateral,
subject to the provisions and requirements thereof; (iii) sell or otherwise
dispose of any or all of the Collateral or cause the Collateral to be sold or
otherwise disposed of in one or more sales or transactions, at such prices and
in such manner as may be commercially reasonable, and for cash or on credit or
for future delivery, without assumption of any credit risk, at public or private
sale, without demand of performance or notice of intention to sell or of time or
place of sale (except such notice as is required by applicable statute and
cannot be waived), it being agreed that the Secured Party may be a purchaser on
behalf of the Beneficiaries or on its own behalf at any such sale and that the
Secured Party, any other Beneficiary, or any other Person who may be a bona fide
purchaser for value and without notice of any claims of any or all of the
Collateral so sold shall thereafter hold the same absolutely free from any claim
or right of whatsoever kind, including any equity of redemption of any Grantor,
any such demand, notice or right and equity being hereby expressly waived and
released to the extent permitted by law; (iv) incur reasonable expenses,
Page 13
including reasonable attorneys' fees, reasonable consultants' fees, and other
costs appropriate to the exercise of any right or power under this Security
Agreement; (v) perform any obligation of any Grantor hereunder and make
payments, purchase, contest or compromise any encumbrance, charge or lien, and
pay taxes and expenses, without, however, any obligation to do so; (vi) in
connection with any acceleration and foreclosure, take possession of the
Collateral and render it usable and repair and renovate the same, without,
however, any obligation to do so, and enter upon any location where the
Collateral may be located for that purpose, control, manage, operate, rent and
lease the Collateral, collect all rents and income from the Collateral and apply
the same to reimburse the Beneficiaries for any cost or expenses incurred
hereunder or under any of the Note Documents and to the payment or performance
of any Grantor's obligations hereunder or under any of the Note Documents, and
apply the balance to the other Secured Obligations and any remaining excess
balance to whomsoever is legally entitled thereto; (vii) secure the appointment
of a receiver for the Collateral or any part thereof; (viii) require any Grantor
to, and each Grantor hereby agrees that it will at its expense and upon request
of the Secured Party forthwith, assemble all or part of the Collateral as
directed by the Secured Party and make it available to the Secured Party at a
place to be designated by the Secured Party which is reasonably convenient to
both parties; (ix) exercise any other or additional rights or remedies granted
to a secured party under the Code; or (x) occupy any premises owned or leased by
any Grantor where the Collateral or any part thereof is assembled for a
reasonable period in order to effectuate its rights and remedies hereunder or
under law, without obligation to any Grantor in respect of such occupation. If,
pursuant to applicable law, prior notice of sale of the Collateral under this
Section is required to be given to any Grantor, each Grantor hereby acknowledges
that the minimum time required by such applicable law, or if no minimum time is
specified, 10 days shall be deemed a reasonable notice period. The Secured Party
shall not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Secured Party 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.
(b) All reasonable costs and expenses (including reasonable attorneys'
fees and expenses) incurred by the Secured Party in connection with any suit or
proceeding in connection with the performance by the Secured Party of any of the
agreements contained in any of the Contract Documents, or in connection with any
exercise of its rights or remedies hereunder, pursuant to the terms of this
Security Agreement, shall constitute additional indebtedness secured by this
Security Agreement and shall be paid on demand by the Grantors to the Secured
Party on behalf of the Beneficiaries.
Section 9. REMEDIES CUMULATIVE; DELAY NOT WAIVER.
(a) No right, power or remedy herein conferred upon or reserved to the
Secured Party is intended to be exclusive of any other right, power or remedy
and every such right, power and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right, power and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder or otherwise shall not
prevent the concurrent assertion or employment of any other appropriate right or
remedy. Resort to any or all security now or hereafter held by the Secured Party
may be taken concurrently or successively and in one or several consolidated or
independent judicial actions or lawfully taken nonjudicial proceedings, or both.
Page 14
(b) No delay or omission of the Secured Party to exercise any right or
power accruing upon the occurrence and during the continuance of any Event of
Default as aforesaid shall impair any such right or power or shall be construed
to be a waiver of any such Event of Default or an acquiescence therein; and
every power and remedy given by this Security Agreement may be exercised from
time to time, and as often as shall be deemed expedient, by the Secured Party.
Section 10. CONTRACT RIGHTS. Upon the occurrence and during the
continuance of any Event of Default, the Secured Party may exercise any of the
Contract Rights and remedies of any Grantor under or in connection with the
Instruments, Chattel Paper, or Contracts which represent Accounts, the General
Intangibles, or which otherwise relate to the Collateral, including, without
limitation, any rights of any Grantor to demand or otherwise require payment of
any amount under, or performance of any provisions of, the Instruments, Chattel
Paper, or Contracts which represent Accounts, or the General Intangibles.
Section 11. ACCOUNTS.
(a) The Secured Party may, or may direct any Grantor to, take any
action the Secured Party deems necessary or advisable to enforce collection of
the Accounts, including, without limitation, upon the occurrence and during the
continuation of an Event of Default, notifying the account debtors or obligors
under any Accounts of the assignment of such Accounts to the Secured Party and
directing such account debtors or obligors to make payment of all amounts due or
to become due directly to the Secured Party. Upon such notification and
direction, and at the expense of the Grantors, the Secured Party may enforce
collection of any such Accounts, and adjust, settle, or compromise the amount or
payment thereof in the same manner and to the same extent as any Grantor might
have done.
(b) After receipt by any Grantor of the notice referred to in Section
11(a) above that an Event of Default has occurred and is continuing, all amounts
and proceeds (including instruments) received by such Grantor in respect of the
Accounts shall be received in trust for the benefit of the Secured Party
hereunder, shall be segregated from other funds of such Grantor, and shall
promptly be paid over to the Secured Party in the same form as so received (with
any necessary endorsement) to be held as Collateral. No Grantor shall adjust,
settle, or compromise the amount or payment of any Account, nor release wholly
or partly any account debtor or obligor thereof, nor allow any credit or
discount thereon.
Page 15
Section 12. RIGHTS RETAINED BY GRANTORS. So long as no Event of Default
shall have occurred and remain uncured or unwaived, the Grantors shall be
entitled to (a) receive and retain all revenues and other moneys pledged hereby
as Collateral and the proceeds of any disposition of any of their respective
Properties constituting Collateral provided that such disposition is permitted
under the Note Purchase Agreement, and (b) protect, enforce and exercise its
rights under any of the Contract Documents; PROVIDED, HOWEVER, that no Grantor
shall exercise nor shall it refrain from exercising any such right if such
action or inaction, as applicable, would have a materially adverse effect on the
value of the applicable Collateral.
Section 13. APPLICATION OF COLLATERAL. The proceeds of any sale, or
other realization (other than that received from a sale or other realization
permitted by the Note Purchase Agreement) upon all or any part of the Collateral
pledged by any Grantor shall be applied by the Secured Party as set forth in
Section 3.1 of the Note Purchase Agreement.
Section 14. SECURED PARTY AS ATTORNEY-IN-FACT FOR GRANTOR. Each Grantor
hereby constitutes and irrevocably appoints the Secured Party, acting for and on
behalf of itself and the Beneficiaries, and each successor or assign of the
Secured Party, the true and lawful attorney-in-fact of such Grantor, with full
power and authority in the place and stead of such Grantor and in the name of
such Grantor, the Secured Party or otherwise to take any action and execute any
instrument at the written direction of the Beneficiaries and enforce all rights,
interests and remedies of such Grantor with respect to the Collateral, including
the right:
(a) to ask, require, demand, receive and give acquittance for any and
all moneys and claims for moneys due and to become due under or arising out of
any of the other Collateral, including, without limitation, any Insurance
Contracts;
(b) to elect remedies thereunder and to endorse any checks or other
instruments or orders in connection therewith;
(c) to file any claims or take any action or institute any proceedings
in connection therewith which the Secured Party may deem to be necessary or
advisable;
(d) to pay, settle or compromise all bills and claims which may be or
become liens or security interests against any or all of the Collateral, or any
part thereof, unless a bond or other security satisfactory to the Secured Party
has been provided; and
(e) upon foreclosure, to do any and every act which any Grantor may do
on its behalf with respect to the Collateral or any part thereof and to exercise
any or all of such Grantor's rights and remedies under any or all of the
Collateral;
PROVIDED, HOWEVER, that the Secured Party shall not exercise any such rights
except upon the occurrence and during the continuation of an Event of Default.
THIS POWER OF ATTORNEY IS A POWER COUPLED WITH AN INTEREST AND SHALL BE
IRREVOCABLE.
Section 15. SECURED PARTY MAY PERFORM. The Secured Party may from
time-to-time perform any act which any Grantor has agreed hereunder to perform
and which such Grantor shall fail to perform after being requested in writing so
to perform (it being understood that no such request need be given after the
occurrence and during the continuance of any Event of Default and after notice
Page 16
thereof by the Secured Party to any Grantor) and the Secured Party may from
time-to-time take any other action which the Secured Party deems necessary for
the maintenance, preservation or protection of any of the Collateral or of its
security interest therein, and the reasonable expenses of the Secured Party
incurred in connection therewith shall be part of the Secured Obligations and
shall be secured hereby.
Section 16. SECURED PARTY HAS NO DUTY. The powers conferred on the
Secured Party hereunder are solely to protect its interest in the Collateral and
shall not impose any duty on it to exercise any such powers. Except for
reasonable care of any Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Secured Party shall have no duty
as to any Collateral or responsibility for taking any necessary steps to
preserve rights against prior parties or any other rights pertaining to any
Collateral.
Section 17. REASONABLE CARE. The Secured Party shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which the Secured Party accords its own Property.
Section 18. PAYMENTS HELD IN TRUST. During the continuance of an Event
of Default, all payments received by any Grantor under or in connection with any
Collateral shall be received in trust for the benefit of the Secured Party, and
shall be segregated from other funds of such Grantor and shall be forthwith paid
over to the Secured Party in the same form as received (with any necessary
endorsement).
Section 19. MISCELLANEOUS.
(a) EXPENSES. Each Grantor will upon demand pay to the Secured Party
for its benefit and the benefit of the Beneficiaries the amount of any
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of its counsel and of any experts, which the Secured Party and the
Beneficiaries may incur in connection with (i) the custody, preservation, use,
or operation of, or the sale, collection, or other realization of, any of the
Collateral, (ii) the exercise or enforcement of any of the rights of the Secured
Party or any Beneficiary hereunder, and (iii) the failure by any Grantor to
perform or observe any of the provisions hereof.
(b) AMENDMENTS; ETC. No amendment or waiver of any provision of this
Security Agreement nor consent to any departure by any Grantor herefrom shall be
effective unless the same shall be in writing and authenticated by the affected
Grantor, the Secured Party and either, as required by the Note Purchase
Agreement, the Required Holders or all of the Holders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
(c) ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be made in the manner and to the addresses set
forth in the Note Purchase Agreement or on the signature page hereto.
(d) CONTINUING SECURITY INTEREST; TRANSFER OF INTEREST. This Security
Agreement shall create a continuing security interest in the Collateral and,
unless expressly released by the Secured Party, shall (a) remain in full force
and effect until the indefeasible payment in full in cash of the Secured
Page 17
Obligations, the termination of all Hedging Contracts, and the termination or
expiration of the Commitments, (b) be binding upon each Grantor and its
successors, tranferees and assigns, and (c) inure, together with the rights and
remedies of the Secured Party hereunder, to the benefit of and be binding upon,
the Secured Party and the Holders and their respective successors, transferees,
and assigns, and to the benefit of and be binding upon, the Swap Counterparties,
and each of their respective successors, transferees, and assigns to the extent
such successors, transferees, and assigns of a Swap Counterparty is a Holder or
an Affiliate of a Holder. Without limiting the generality of the foregoing
clause, when any Holder assigns or otherwise transfers any interest held by it
under the Note Purchase Agreement or other Note Document to any other Person
pursuant to the terms of the Note Purchase Agreement or such other Note
Document, that other Person shall thereupon become vested with all the benefits
held by such Holder under this Security Agreement.
(e) SEVERABILITY. Wherever possible each provision of this Security
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Security Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Security Agreement.
(f) CHOICE OF LAW. This Security Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
without regard to principles of conflicts of laws (other than Section 5-1401 and
Section 5-1402 of the New York General Obligations Law), except to the extent
that the perfection, the effect of perfection or non-perfection, and the
priority of the security interests hereunder, or remedies hereunder, in respect
of any particular Collateral are governed by the laws of a jurisdiction other
than the State of New York.
(g) COUNTERPARTS. The parties may execute this Security Agreement in
any number of duplicate originals, each of which constitutes an original, and
all of which, collectively, constitute only one agreement. The parties may
execute this Security Agreement in counterparts, each of which constitutes an
original, and all of which, collectively, constitute only one agreement.
Delivery of an executed counterpart signature page by facsimile shall be as
effective as delivery of a manually signed counterpart signature page hereof and
is as effective as executing and delivering this Security Agreement in the
presence of the other parties to this Security Agreement. In proving this
Security Agreement, a party must produce or account only for the executed
counterpart of the party to be charged.
(h) CONFLICTS. In the event of any explicit or implicit conflict
between any provision of this Security Agreement and any provision of the Note
Purchase Agreement, the terms of the Note Purchase Agreement shall be
controlling.
(i) ADDITIONAL GRANTORS. Additional Affiliates of the Company may from
time to time enter into this Security Agreement as a Grantor. Upon execution and
delivery after the date hereof by the Secured Party and such Affiliate of an
instrument in the form of ANNEX 1, such Affiliate shall become a Grantor
hereunder with the same force and effect as if originally named as a Grantor
herein. The execution and delivery of any instrument adding an additional
Grantor as a party to this Security Agreement shall not require the consent of
Page 18
any other Grantor hereunder. The rights and obligations of each Grantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Grantor as a party to this Security Agreement.
(j) INTEGRATION. This Security Agreement and the other Loan Documents
from time to time executed in connection with the Note Purchase Agreement state
the entire agreement between the parties with respect to the subject matter
hereof.
[SIGNATURE PAGES FOLLOW]
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The parties hereto have caused this Security Agreement to be duly
executed as of the date first above written.
GRANTORS:
NATIONAL COAL OF ALABAMA, INC.
(formerly known as Xxxx Steel Products, Inc.)
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Xxxxxx Xxxxxx
President and Chief Executive Officer
NCC CORP.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Xxxxxx Xxxxxx
President and Chief Executive Officer
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SECURED PARTY:
TCW ASSET MANAGEMENT COMPANY, as Administrative Agent
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Xxxx Xxxxxx
Senior Vice President
By: /s/ Xxxxxxx X. Punches
-----------------------------------------
Xxxxxxx X. Punches
Vice President
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