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AMENDED AND RESTATED
GUARANTEE AND COLLATERAL AGREEMENT
made by
AFTERMARKET TECHNOLOGY CORP.
and certain of its Subsidiaries
in favor of
THE CHASE MANHATTAN BANK,
as Agent
Dated as of March 6, 1998
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Directly or Indirectly.
TABLE OF CONTENTS
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SECTION 1. DEFINED TERMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Other Definitional Provisions. . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2. GUARANTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Guarantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Right of Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.3 No Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4 Amendments, etc. with respect to the Borrower Obligations. . . . . . . . 6
2.5 Guarantee Absolute and Unconditional . . . . . . . . . . . . . . . . . . 7
2.6 Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.7 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3. GRANT OF SECURITY INTEREST . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . 8
4.1 Representations in Credit Agreement. . . . . . . . . . . . . . . . . . . 8
4.2 Title; No Other Liens. . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.3 Perfected First Priority Liens . . . . . . . . . . . . . . . . . . . . . 9
4.4 Chief Executive Office . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.5 Inventory and Equipment. . . . . . . . . . . . . . . . . . . . . . . . . 9
4.6 Farm Products. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.7 Pledged Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.8 Receivables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.9 Intellectual Property. . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 5. COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1 Covenants in Credit Agreement. . . . . . . . . . . . . . . . . . . . . . 10
5.2 Delivery of Instruments and Chattel Paper. . . . . . . . . . . . . . . . 10
5.3 Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . . . 11
5.4 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.5 Maintenance of Perfected Security Interest; Further Documentation. . . . 11
5.6 Changes in Locations, Name, etc. . . . . . . . . . . . . . . . . . . . . 12
5.7 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.8 Pledged Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.9 Receivables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.10 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6. REMEDIAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 14
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6.1 Certain Matters Relating to Receivables. . . . . . . . . . . . . . . . . 14
6.2 Communications with Obligors; Grantors Remain Liable . . . . . . . . . . 15
6.3 Pledged Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.4 Proceeds to be Turned Over To Agent. . . . . . . . . . . . . . . . . . . 16
6.5 Application of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . 17
6.6 Code and Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . 17
6.7 Registration Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.8 Waiver; Deficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7. THE AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.1 Agent's Appointment as Attorney-in-Fact, etc . . . . . . . . . . . . . . 19
7.2 Duty of Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.3 Execution of Financing Statements. . . . . . . . . . . . . . . . . . . . 20
7.4 Authority of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 8. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.1 Amendments in Writing. . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.3 No Waiver by Course of Conduct; Cumulative Remedies. . . . . . . . . . . 21
8.4 Enforcement Expenses; Indemnification. . . . . . . . . . . . . . . . . . 21
8.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.6 Set-Off. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.9 Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.10 Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.12 Submission To Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . 23
8.13 Acknowledgements. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.14 WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.15 Additional Grantors . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.16 Releases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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AMENDED AND RESTATED
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of March 6, 1998, made by
each of the signatories hereto (together with any other entity that may become a
party hereto as provided herein, the "GRANTORS"), in favor of The Chase
Manhattan Bank, as Agent (in such capacity, the "AGENT") for the banks and other
financial institutions (the "LENDERS") from time to time parties to the Amended
and Restated Credit Agreement, dated as of March 6, 1998 (as amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
among Aftermarket Technology Corp. (the "BORROWER"), the Lenders, Chase
Securities Inc., as Global Arranger, and the Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make extensions of credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of companies
that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable transfers
to one or more of the other Grantors in connection with the operation of their
respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective extensions of credit to the Borrower under the Credit
Agreement that the Grantors shall have executed and delivered this Agreement to
the Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Agent and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby agrees with the Agent, for the ratable benefit
of the Lenders, as follows:
SECTION 1. DEFINED TERMS
1.1 DEFINITIONS. (a) Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms which are defined in the Uniform
Commercial Code in effect in the State of New York on the date hereof are used
herein as so defined: Accounts, Chattel Paper, Documents, Equipment, Farm
Products, Instruments, Inventory and Investment Property.
(b) The following terms shall have the following meanings:
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"AGREEMENT": this Guarantee and Collateral Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"BORROWER OBLIGATIONS": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations and
all other obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the
Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in
the Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) to the Agent or any Lender (or, in
the case of any Hedge Agreement referred to below, any Affiliate of any
Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, the Credit Agreement, this Agreement, the
other Loan Documents, any Letter of Credit or any Hedge Agreement entered
into by the Borrower with any Lender (or any Affiliate of any Lender) or
any other document made, delivered or given in connection therewith, in
each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to the Agent or
to the Lenders that are required to be paid by the Borrower pursuant to the
terms of any of the foregoing agreements).
"COLLATERAL": as defined in Section 3.
"COLLATERAL ACCOUNT": any collateral account established by the Agent
as provided in Section 6.1 or 6.4.
"COPYRIGHTS": (i) all copyrights arising under the laws of the United
States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed in SCHEDULE 6), all registrations and
recordings thereof, and all applications in connection therewith,
including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right to
obtain all renewals thereof.
"COPYRIGHT LICENSES": any written agreement naming any Grantor as
licensor or licensee (including, without limitation, those listed in
SCHEDULE 6), granting any right under any Copyright, including, without
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"GENERAL INTANGIBLES": all "general intangibles" as such term is
defined in Section 9-106 of the Uniform Commercial Code in effect in the
State of New York on the date hereof and, in any event, including, without
limitation, with respect to any Grantor, all contracts, agreements,
instruments and indentures in any form, and portions thereof, to which such
Grantor is a party or under which such Grantor has any right, title or
interest or to which such Grantor or any property of such Grantor is
subject, as the same may from time to time be amended, supplemented or
otherwise modified, including, without limitation, (i) all rights of such
Grantor to receive moneys due and to become due to it thereunder or in
connection therewith, (ii) all rights of such Grantor to damages arising
thereunder and (iii) all rights of such Grantor to perform and to exercise
all remedies thereunder, in each case to the extent the grant by such
Grantor of a security interest
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pursuant to this Agreement in its right, title and interest in such
contract, agreement, instrument or indenture is not prohibited by such
contract, agreement, instrument or indenture without the consent of any
other party thereto, would not give any other party to such contract,
agreement, instrument or indenture the right to terminate its obligations
thereunder, or is permitted with consent if all necessary consents to such
grant of a security interest have been obtained from the other parties
thereto (it being understood that the foregoing shall not be deemed to
obligate such Grantor to obtain such consents); PROVIDED, that the
foregoing limitation shall not affect, limit, restrict or impair the grant
by such Grantor of a security interest pursuant to this Agreement in any
Receivable or any money or other amounts due or to become due under any
such contract, agreement, instrument or indenture.
"GUARANTOR OBLIGATIONS": with respect to any Guarantor, the
collective reference to (i) the Borrower Obligations and (ii) all
obligations and liabilities of such Guarantor which may arise under or in
connection with this Agreement or any other Loan Document to which such
Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all fees and disbursements of
counsel to the Agent or to the Lenders that are required to be paid by such
Guarantor pursuant to the terms of this Agreement or any other Loan
Document).
"GUARANTORS": the collective reference to each Grantor other than the
Borrower.
"HEDGE AGREEMENTS": as to any Person, all interest rate swaps, caps
or collar agreements or similar arrangements entered into by such Person
providing for protection against fluctuations in interest rates or currency
exchange rates or the exchange of nominal interest obligations, either
generally or under specific contingencies.
"INTELLECTUAL PROPERTY": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks and the Trademark Licenses,
and all rights to xxx at law or in equity for any infringement or other
impairment thereof, including the right to receive all proceeds and damages
therefrom.
"INTERCOMPANY NOTE": any promissory note evidencing loans made by any
Grantor to another Grantor or to any Subsidiary of the Borrower which is
not a Grantor.
"ISSUERS": the collective reference to each issuer of a Pledged
Security.
"NEW YORK UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"OBLIGATIONS": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations The Obligations hereunder are expressly designated Senior Debt
(as such term is defined in the Indentures) and made senior in right of
payment to the respective Notes or Guarantees (as defined in the
Indentures) made by the Grantors.
"PATENTS": (i) all letters patent of the United States, any other
country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith,
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including, without limitation, any of the foregoing referred to in
SCHEDULE 6, (ii) all applications for letters patent of the United States
or any other country and all divisions, continuations and
continuations-in-part thereof, including, without limitation, any of the
foregoing referred to in SCHEDULE 6, and (iii) all rights to obtain any
reissues or extensions of the foregoing.
"PATENT LICENSE": all agreements, whether written or oral, providing
for the grant by or to any Grantor of any right to manufacture, use or sell
any invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to in SCHEDULE 6.
"PLEDGED NOTES": all promissory notes listed on SCHEDULE 2, all
Intercompany Notes at any time issued to any Grantor and all other
promissory notes issued to or held by any Grantor (other than promissory
notes issued in connection with extensions of trade credit by any Grantor
in the ordinary course of business).
"PLEDGED SECURITIES": the collective reference to the Pledged Notes
and the Pledged Stock.
"PLEDGED STOCK": the shares of Capital Stock listed on SCHEDULE 2,
together with any other shares, stock certificates, options or rights of
any nature whatsoever in respect of the Capital Stock of any Person that
may be issued or granted to, or held by, any Grantor while this Agreement
is in effect.
"PROCEEDS": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New York
on the date hereof and, in any event, shall include, without limitation,
all dividends or other income from the Pledged Securities, collections
thereon or distributions or payments with respect thereto.
"RECEIVABLE": any right to payment for goods sold or leased or for
services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"SECURITIES ACT": the Securities Act of 1933, as amended.
"TRADEMARKS": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and all
goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, including, without
limitation, any of the foregoing referred to in SCHEDULE 6, and (ii) the
right to obtain all renewals thereof.
"TRADEMARK LICENSE": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred to
in SCHEDULE 6.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) The words "hereof," "herein",
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to
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this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 GUARANTEE. (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Agent, for the
ratable benefit of the Lenders and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and performance by the
Borrower when due (whether at the stated maturity, by acceleration or otherwise)
of the Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Agent or any Lender hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full, no Letter of Credit shall be outstanding and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement the Borrower may be free from any Borrower
Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any other
guarantor or any other Person or received or collected by the Agent or any
Lender from the Borrower, any of the Guarantors, any other guarantor or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or
in payment of the Borrower Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment (other than any payment made by such
Guarantor in respect of the Borrower Obligations or any payment received or
collected from such Guarantor in respect of the Borrower Obligations), remain
liable for the Borrower Obligations up to the maximum liability of such
Guarantor hereunder until the Borrower Obligations are paid in full, no Letter
of Credit shall be outstanding and the Commitments are terminated.
2.2 RIGHT OF CONTRIBUTION. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2
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shall in no respect limit the obligations and liabilities of any Guarantor to
the Agent and the Lenders, and each Guarantor shall remain liable to the Agent
and the Lenders for the full amount guaranteed by such Guarantor hereunder.
2.3 NO SUBROGATION. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the Agent
or any Lender, no Guarantor shall be entitled to be subrogated to any of the
rights of the Agent or any Lender against the Borrower or any other Guarantor or
any collateral security or guarantee or right of offset held by the Agent or any
Lender for the payment of the Borrower Obligations, nor shall any Guarantor seek
or be entitled to seek any contribution or reimbursement from the Borrower or
any other Guarantor in respect of payments made by such Guarantor hereunder,
until all amounts owing to the Agent and the Lenders by the Borrower on account
of the Borrower Obligations are paid in full, no Letter of Credit shall be
outstanding and the Commitments are terminated. If any amount shall be paid to
any Guarantor on account of such subrogation rights at any time when all of the
Borrower Obligations shall not have been paid in full, such amount shall be held
by such Guarantor in trust for the Agent and the Lenders, segregated from other
funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be
turned over to the Agent in the exact form received by such Guarantor (duly
indorsed by such Guarantor to the Agent, if required), to be applied against the
Borrower Obligations, whether matured or unmatured, in such order as the Agent,
with the consent of the Required Lenders, may determine.
2.4 AMENDMENTS, ETC. WITH RESPECT TO THE BORROWER OBLIGATIONS. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the Agent or any Lender may be rescinded by the Agent or
such Lender and any of the Borrower Obligations continued, and the Borrower
Obligations, or the liability of any other Person upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Agent or any Lender, and the Credit Agreement and the other Loan Documents
and any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the Agent
(or the Required Lenders or all Lenders, as the case may be) may deem advisable
from time to time, and any collateral security, guarantee or right of offset at
any time held by the Agent or any Lender for the payment of the Borrower
Obligations may be sold, exchanged, waived, surrendered or released. Neither
the Agent nor any Lender shall have any obligation to protect, secure, perfect
or insure any Lien at any time held by it as security for the Borrower
Obligations or for the guarantee contained in this Section 2 or any property
subject thereto.
2.5 GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by the Agent or any
Lender upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Borrower Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Borrower and any of
the Guarantors, on the one hand, and the Agent and the Lenders, on the other
hand, likewise shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. Each Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Borrower or any of the Guarantors with respect to the
Borrower Obligations. Each Guarantor understands and agrees that the guarantee
contained in this Section 2 shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the
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validity or enforceability of the Credit Agreement or any other Loan Document,
any of the Borrower Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrower or any other Person against the
Agent or any Lender, or (c) any other circumstance whatsoever (with or without
notice to or knowledge of the Borrower or such Guarantor) which constitutes, or
might be construed to constitute, an equitable or legal discharge of the
Borrower for the Borrower Obligations, or of such Guarantor under the guarantee
contained in this Section 2, in bankruptcy or in any other instance. When
making any demand hereunder or otherwise pursuing its rights and remedies
hereunder against any Guarantor, the Agent or any Lender may, but shall be
under no obligation to, make a similar demand on or otherwise pursue such
rights and remedies as it may have against the Borrower, any other Guarantor or
any other Person or against any collateral security or guarantee for the
Borrower Obligations or any right of offset with respect thereto, and any
failure by the Agent or any Lender to make any such demand, to pursue such
other rights or remedies or to collect any payments from the Borrower, any
other Guarantor or any other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release
of the Borrower, any other Guarantor or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve any Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Agent or any Lender against any Guarantor. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings.
2.6 REINSTATEMENT. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Borrower Obligations is rescinded or
must otherwise be restored or returned by the Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
2.7 PAYMENTS. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Agent without set-off or counterclaim in Dollars
at the office of the Agent located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Agent, and hereby
grants to the Agent, for the ratable benefit of the Lenders, a security interest
in, all of the following property now owned or at any time hereafter acquired by
such Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the "COLLATERAL"), as
collateral security for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of such Grantor's
Obligations,:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Documents;
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(d) all Equipment;
(e) all General Intangibles;
(f) all Instruments;
(g) all Intellectual Property;
(h) all Inventory;
(i) all Investment Property;
(j) all Pledged Securities;
(k) all books and records pertaining to the Collateral; and
(l) to the extent not otherwise included, all Proceeds and products of
any and all of the foregoing and all collateral security and guarantees
given by any Person with respect to any of the foregoing.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into the Credit Agreement
and to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder, each Grantor hereby represents and warrants to the Agent
and each Lender that:
4.1 REPRESENTATIONS IN CREDIT AGREEMENT. In the case of each
Guarantor, the representations and warranties set forth in Section 5 of the
Credit Agreement as they relate to such Guarantor or to the Loan Documents to
which such Guarantor is a party, each of which is hereby incorporated herein by
reference, are true and correct, and the Agent and each Lender shall be entitled
to rely on each of them as if they were fully set forth herein, PROVIDED that
each reference in each such representation and warranty to the Borrower's
knowledge shall, for the purposes of this Section 4.1, be deemed to be a
reference to such Guarantor's knowledge.
4.2 TITLE; NO OTHER LIENS. Except for the security interest granted
to the Agent for the ratable benefit of the Lenders pursuant to this Agreement
and the other Liens permitted to exist on the Collateral by the Credit
Agreement, such Grantor owns each item of the Collateral free and clear of any
and all Liens or claims of others. No financing statement or other public
notice with respect to all or any part of the Collateral is on file or of record
in any public office, except such as have been filed in favor of the Agent, for
the ratable benefit of the Lenders, pursuant to this Agreement or as are
permitted by the Credit Agreement.
4.3 PERFECTED FIRST PRIORITY LIENS. The security interests granted
pursuant to this Agreement (a) upon completion of the filings and other actions
specified on SCHEDULE 3 (which, in the case of all filings and other documents
referred to on said Schedule, have been delivered to the Agent in completed and
duly executed form) will constitute valid perfected security interests in all of
the Collateral in favor of the Agent, for the ratable benefit of the Lenders as
collateral security for such Grantor's
9
Obligations, enforceable in accordance with the terms hereof against all
creditors of such Grantor and any Persons purporting to purchase any Collateral
from such Grantor and (b) are prior to all other Liens on the Collateral in
existence on the date hereof except for (i) unrecorded Liens permitted by the
Credit Agreement which have priority over the Liens on the Collateral by
operation of law and (ii) Liens described on SCHEDULE 7.
4.4 CHIEF EXECUTIVE OFFICE. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office or sole place of business are specified on SCHEDULE 4.
4.5 INVENTORY AND EQUIPMENT. On the date hereof, the Inventory and
the Equipment (other than mobile goods) are kept at the locations listed on
SCHEDULE 5.
4.6 FARM PRODUCTS. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
4.7 PLEDGED SECURITIES. (a) The shares of Pledged Stock pledged by
such Grantor hereunder constitute (i) in the case of each domestic Issuer, all
the issued and outstanding shares of all classes of the Capital Stock of each
such domestic Issuer owned by such Grantor and (ii) in the case of each foreign
Issuer, such percentage (not more than 65%) as is specified on SCHEDULE 2 of all
the issued and outstanding shares of all classes of the Capital Stock of each
such foreign Issuer.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and binding
obligation of the obligor with respect thereto, enforceable in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and has good
and marketable title to, the Pledged Securities pledged by it hereunder, free of
any and all Liens or options in favor of, or claims of, any other Person, except
the security interest created by this Agreement.
4.8 RECEIVABLES. (a) No amount payable to such Grantor under or in
connection with any Receivable is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Agent.
(b) None of the obligors on any Receivables is a Governmental
Authority.
(c) The amounts represented by such Grantor to the Lenders from time
to time as owing to such Grantor in respect of the Receivables will at such
times be accurate.
4.9 INTELLECTUAL PROPERTY. (a) SCHEDULE 6 lists all Intellectual
Property owned by such Grantor in its own name on the date hereof.
(b) On the date hereof, all material Intellectual Property is valid,
subsisting, unexpired and enforceable, has not been abandoned and does not
infringe the intellectual property rights of any
10
other Person.
(c) Except as set forth in SCHEDULE 6, on the date hereof, none of the
Intellectual Property is the subject of any licensing or franchise agreement
pursuant to which such Grantor is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of, or
such Grantor's rights in, any Intellectual Property in any respect that could
reasonably be expected to have a Material Adverse Effect.
(e) No action or proceeding is pending, or, to the knowledge of such
Grantor, threatened, on the date hereof (i) seeking to limit, cancel or question
the validity of any Intellectual Property or such Grantor's ownership interest
therein, or (ii) which, if adversely determined, would have a material adverse
effect on the value of any Intellectual Property.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Agent and the Lenders that,
from and after the date of this Agreement until the Obligations shall have been
paid in full, no Letter of Credit shall be outstanding and the Commitments shall
have terminated:
5.1 COVENANTS IN CREDIT AGREEMENT. In the case of each Guarantor,
such Guarantor shall take, or shall refrain from taking, as the case may be,
each action that is necessary to be taken or not taken, as the case may be, so
that no Default or Event of Default is caused by the failure to take such action
or to refrain from taking such action by such Guarantor or any of its
Subsidiaries.
5.2 DELIVERY OF INSTRUMENTS AND CHATTEL PAPER. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument or Chattel Paper, such Instrument or Chattel Paper shall be
immediately delivered to the Agent, duly indorsed in a manner satisfactory to
the Agent, to be held as Collateral pursuant to this Agreement.
5.3 MAINTENANCE OF INSURANCE. (a) Such Grantor will maintain, with
financially sound and reputable companies, insurance policies (i) insuring the
Inventory and Equipment against loss by fire, explosion, theft and such other
casualties as may be reasonably satisfactory to the Agent and (ii) to the extent
requested by the Agent, insuring such Grantor, the Agent and the Lenders against
liability for personal injury and property damage relating to such Inventory and
Equipment, such policies to be in such form and amounts and having such coverage
as may be reasonably satisfactory to the Agent and the Lenders.
(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least 30 days after receipt by the Agent of written notice
thereof, (ii) name the Agent as insured party or loss payee, (iii) if reasonably
requested by the Agent, include a breach of warranty clause and (iv) be
reasonably satisfactory in all other respects to the Agent.
(c) The Borrower shall deliver to the Agent and the Lenders a report
of a reputable insurance broker with respect to such insurance during the month
of _________ in each calendar year and such supplemental reports with respect
thereto as the Agent may from time to time reasonably request.
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5.4 PAYMENT OF OBLIGATIONS. Such Grantor will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all taxes, assessments and governmental charges or levies imposed
upon the Collateral or in respect of income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
5.5 MAINTENANCE OF PERFECTED SECURITY INTEREST; FURTHER DOCUMENTATION.
(a) Such Grantor shall maintain the security interest created by this Agreement
as a perfected security interest having at least the priority described in
Section 4.3 and shall defend such security interest against the claims and
demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Agent and the Lenders from time
to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the Agent
may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written request of the
Agent, and at the sole expense of such Grantor, such Grantor will promptly and
duly execute and deliver, and have recorded, such further instruments and
documents and take such further actions as the Agent may reasonably request for
the purpose of obtaining or preserving the full benefits of this Agreement and
of the rights and powers herein granted, including, without limitation, the
filing of any financing or continuation statements under the Uniform Commercial
Code (or other similar laws) in effect in any jurisdiction with respect to the
security interests created hereby.
5.6 CHANGES IN LOCATIONS, NAME, ETC. Such Grantor will not, except
upon 15 days' prior written notice to the Agent and delivery to the Agent of (a)
all additional executed financing statements and other documents reasonably
requested by the Agent to maintain the validity, perfection and priority of the
security interests provided for herein and (b) if applicable, a written
supplement to SCHEDULE 5 showing any additional location at which Inventory or
Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept at a location
other than those listed on SCHEDULE 5;
(ii) change the location of its chief executive office or sole place
of business from that referred to in Section 4.4; or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Agent in connection with
this Agreement would become misleading.
5.7 NOTICES. Such Grantor will advise the Agent and the Lenders
promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreement) on any of the Collateral which would
adversely affect the ability of the Agent to exercise any of its remedies
hereunder; and
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(b) of the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
5.8 PLEDGED SECURITIES. (a) If such Grantor shall become entitled to
receive or shall receive any stock certificate (including, without limitation,
any certificate representing a stock dividend or a distribution in connection
with any reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights in respect of
the Capital Stock of any Issuer, whether in addition to, in substitution of, as
a conversion of, or in exchange for, any shares of the Pledged Stock, or
otherwise in respect thereof, such Grantor shall accept the same as the agent of
the Agent and the Lenders, hold the same in trust for the Agent and the Lenders
and deliver the same forthwith to the Agent in the exact form received, duly
indorsed by such Grantor to the Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by such Grantor and
with, if the Agent so requests, signature guaranteed, to be held by the Agent,
subject to the terms hereof, as additional collateral security for the
Obligations. Any sums paid upon or in respect of the Pledged Securities upon
the liquidation or dissolution of any Issuer shall be paid over to the Agent to
be held by it hereunder as additional collateral security for the Obligations,
and in case any distribution of capital shall be made on or in respect of the
Pledged Securities or any property shall be distributed upon or with respect to
the Pledged Securities pursuant to the recapitalization or reclassification of
the capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected security
interest in favor of the Agent, be delivered to the Agent to be held by it
hereunder as additional collateral security for the Obligations. If any sums of
money or property so paid or distributed in respect of the Pledged Securities
shall be received by such Grantor, such Grantor shall, until such money or
property is paid or delivered to the Agent, hold such money or property in trust
for the Lenders, segregated from other funds of such Grantor, as additional
collateral security for the Obligations.
(b) Without the prior written consent of the Agent, such Grantor will
not (i) vote to enable, or take any other action to permit, any Issuer to issue
any stock or other equity securities of any nature or to issue any other
securities convertible into or granting the right to purchase or exchange for
any stock or other equity securities of any nature of any Issuer, (ii) sell,
assign, transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Pledged Securities or Proceeds thereof (except pursuant to a
transaction expressly permitted by the Credit Agreement), (iii) create, incur or
permit to exist any Lien or option in favor of, or any claim of any Person with
respect to, any of the Pledged Securities or Proceeds thereof, or any interest
therein, except for the security interests created by this Agreement or (iv)
enter into any agreement or undertaking restricting the right or ability of such
Grantor or the Agent to sell, assign or transfer any of the Pledged Securities
or Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such Issuer agrees
that (i) it will be bound by the terms of this Agreement relating to the Pledged
Securities issued by it and will comply with such terms insofar as such terms
are applicable to it, (ii) it will notify the Agent promptly in writing of the
occurrence of any of the events described in Section 5.8(a) with respect to the
Pledged Securities issued by it and (iii) the terms of Sections 6.3(c) and 6.7
shall apply to it, MUTATIS MUTANDIS, with respect to all actions that may be
required of it pursuant to Section 6.3(c) or 6.7 with respect to the Pledged
Securities issued by it.
5.9 RECEIVABLES. (a) Other than in the ordinary course of business
consistent with its past practice, such Grantor will not (i) grant any extension
of the time of payment of any Receivable, (ii) compromise or settle any
Receivable for less than the full amount thereof, (iii) release, wholly or
13
partially, any Person liable for the payment of any Receivable, (iv) allow any
credit or discount whatsoever on any Receivable or (v) amend, supplement or
modify any Receivable in any manner that could adversely affect the value
thereof.
(b) Such Grantor will deliver to the Agent a copy of each material
demand, notice or document received by it that questions or calls into doubt the
validity or enforceability of more than 5% of the aggregate amount of the then
outstanding Receivables.
5.10 INTELLECTUAL PROPERTY. (a) Such Grantor (either itself or
through licensees) will (i) continue to use each material Trademark on each and
every trademark class of goods applicable to its current line as reflected in
its current catalogs, brochures and price lists in order to maintain such
Trademark in full force free from any claim of abandonment for non-use, (ii)
maintain as in the past the quality of products and services offered under such
Trademark, (iii) use such Trademark with the appropriate notice of registration
and all other notices and legends required by applicable Requirements of Law,
(iv) not adopt or use any xxxx which is confusingly similar or a colorable
imitation of such Trademark unless the Agent, for the ratable benefit of the
Lenders, shall obtain a perfected security interest in such xxxx pursuant to
this Agreement, and (v) not (and not permit any licensee or sublicensee thereof
to) do any act or knowingly omit to do any act whereby such Trademark may become
invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees) will not do any
act, or omit to do any act, whereby any material Patent may become forfeited,
abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees) (i) will employ
each material Copyright and (ii) will not (and will not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act whereby any
material portion of the Copyrights may become invalidated or otherwise impaired.
Such Grantor will not (either itself or through licensees) do any act whereby
any material portion of the Copyrights may fall into the public domain.
(d) Such Grantor (either itself or through licensees) will not do any
act that knowingly uses any material Intellectual Property to infringe the
intellectual property rights of any other Person.
(e) Such Grantor will notify the Agent and the Lenders immediately if
it knows, or has reason to know, that any application or registration relating
to any material Intellectual Property may become forfeited, abandoned or
dedicated to the public, or of any adverse determination or development
(including, without limitation, the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office,
the United States Copyright Office or any court or tribunal in any country)
regarding such Grantor's ownership of, or the validity of, any material
Intellectual Property or such Grantor's right to register the same or to own and
maintain the same.
(f) Whenever such Grantor, either by itself or through any agent,
employee, licensee or designee, shall file an application for the registration
of any Intellectual Property with the United States Patent and Trademark Office,
the United States Copyright Office or any similar office or agency in any other
country or any political subdivision thereof, such Grantor shall report such
filing to the Agent within five Business Days after the last day of the fiscal
quarter in which such filing occurs. Upon request of the Agent, such Grantor
shall execute and deliver, and have recorded, any and all agreements,
instruments, documents, and papers as the Agent may request to evidence the
Agent's and the Lenders' security interest in any Copyright, Patent or Trademark
and the goodwill and general intangibles of such Grantor relating thereto or
represented thereby.
14
(g) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of the material Intellectual Property, including,
without limitation, filing of applications for renewal, affidavits of use and
affidavits of incontestability.
(h) In the event that any material Intellectual Property is infringed,
misappropriated or diluted by a third party, such Grantor shall (i) take such
actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property and (ii) if such
Intellectual Property is of material economic value, promptly notify the Agent
after it learns thereof and xxx for infringement, misappropriation or dilution,
to seek injunctive relief where appropriate and to recover any and all damages
for such infringement, misappropriation or dilution.
SECTION 6. REMEDIAL PROVISIONS
6.1 CERTAIN MATTERS RELATING TO RECEIVABLES. (a) The Agent shall have
the right to make test verifications of the Receivables in any manner and
through any medium that it reasonably considers advisable, and each Grantor
shall furnish all such assistance and information as the Agent may require in
connection with such test verifications. At any time and from time to time,
upon the Agent's request and at the expense of the relevant Grantor, such
Grantor shall cause independent public accountants or others satisfactory to the
Agent to furnish to the Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Receivables.
(b) The Agent hereby authorizes each Grantor to collect such Grantor's
Receivables, subject to the Agent's direction and control, and the Agent may
curtail or terminate said authority at any time after the occurrence and during
the continuance of an Event of Default. If required by the Agent at any time
after the occurrence and during the continuance of an Event of Default, any
payments of Receivables, when collected by any Grantor, (i) shall be forthwith
(and, in any event, within two Business Days) deposited by such Grantor in the
exact form received, duly indorsed by such Grantor to the Agent if required, in
a Collateral Account maintained under the sole dominion and control of the
Agent, subject to withdrawal by the Agent for the account of the Lenders only as
provided in Section 6.5, and (ii) until so turned over, shall be held by such
Grantor in trust for the Agent and the Lenders, segregated from other funds of
such Grantor. Each such deposit of Proceeds of Receivables shall be accompanied
by a report identifying in reasonable detail the nature and source of the
payments included in the deposit.
(c) At the Agent's request, each Grantor shall deliver to the Agent
all original and other documents evidencing, and relating to, the agreements and
transactions which gave rise to the Receivables, including, without limitation,
all original orders, invoices and shipping receipts.
6.2 COMMUNICATIONS WITH OBLIGORS; GRANTORS REMAIN LIABLE. (a) The
Agent in its own name or in the name of others may at any time communicate with
obligors under the Receivables to verify with them to the Agent's satisfaction
the existence, amount and terms of any Receivables.
(b) Upon the request of the Agent at any time after the occurrence and
during the continuance of an Event of Default, each Grantor shall notify
obligors on the Receivables that the Receivables and the Contracts have been
assigned to the Agent for the ratable benefit of the Lenders and
15
that payments in respect thereof shall be made directly to the Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Receivables to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise thereto. Neither the
Agent nor any Lender shall have any obligation or liability under any Receivable
(or any agreement giving rise thereto), by reason of or arising out of this
Agreement or the receipt by the Agent or any Lender of any payment relating
thereto, nor shall the Agent or any Lender be obligated in any manner to perform
any of the obligations of any Grantor under or pursuant to any Receivable (or
any agreement giving rise thereto) to make any payment, to make any inquiry as
to the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party thereunder, to present or file any
claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to it or to which it may be entitled
at any time or times.
6.3 PLEDGED STOCK. (a) Unless an Event of Default shall have occurred
and be continuing and the Agent shall have given notice to the relevant Grantor
of the Agent's intent to exercise its corresponding rights pursuant to Section
6.3(b), each Grantor shall be permitted to receive all cash dividends paid in
respect of the Pledged Stock and all payments made in respect of the Pledged
Notes, in each case paid in the normal course of business of the relevant Issuer
and consistent with past practice and to exercise all voting and corporate
rights with respect to the Pledged Securities; PROVIDED, HOWEVER, that no vote
shall be cast or corporate right exercised or other action taken which, in the
Agent's reasonable judgment, would impair the Collateral or which would be
inconsistent with or result in any violation of any provision of the Credit
Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the Agent
shall give notice of its intent to exercise such rights to the relevant Grantor
or Grantors, (i) the Agent shall have the right to receive any and all cash
dividends, payments or other Proceeds paid in respect of the Pledged Securities
and make application thereof to the Obligations in such order as the Agent may
determine, and (ii) any or all of the Pledged Securities shall be registered in
the name of the Agent or its nominee, and the Agent or its nominee may
thereafter exercise (x) all voting, corporate and other rights pertaining to
such Pledged Securities at any meeting of shareholders of the relevant Issuer or
Issuers or otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Pledged Securities as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Pledged
Securities upon the merger, consolidation, reorganization, recapitalization or
other fundamental change in the corporate structure of any Issuer, or upon the
exercise by any Grantor or the Agent of any right, privilege or option
pertaining to such Pledged Securities, and in connection therewith, the right to
deposit and deliver any and all of the Pledged Securities with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms
and conditions as the Agent may determine), all without liability except to
account for property actually received by it, but the Agent shall have no duty
to any Grantor to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Pledged Securities pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Agent in writing that (x) states that an
Event of Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from such Grantor, and each Grantor agrees that each Issuer shall
be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged
16
Securities directly to the Agent.
6.4 PROCEEDS TO BE TURNED OVER TO AGENT. In addition to the rights of
the Agent and the Lenders specified in Section 6.1 with respect to payments of
Receivables, if an Event of Default shall occur and be continuing and the Agent
shall give notice of its intent to exercise such rights to the relevant Grantor
or Grantors, all Proceeds received by any Grantor consisting of cash, checks and
Cash Equivalents shall be held by such Grantor in trust for the Agent and the
Lenders, segregated from other funds of such Grantor, and shall, forthwith upon
receipt by such Grantor, be turned over to the Agent in the exact form received
by such Grantor (duly indorsed by such Grantor to the Agent, if required). All
Proceeds received by the Agent hereunder shall be held by the Agent in a
Collateral Account maintained under its sole dominion and control. All Proceeds
while held by the Agent in a Collateral Account (or by such Grantor in trust for
the Agent and the Lenders) shall continue to be held as collateral security for
all the Obligations and shall not constitute payment thereof until applied as
provided in Section 6.5.
6.5 APPLICATION OF PROCEEDS. At such intervals as may be agreed upon
by the Borrower and the Agent, or, if an Event of Default shall have occurred
and be continuing, at any time at the Agent's election, the Agent may apply all
or any part of Proceeds held in any Collateral Account in payment of the
Obligations in such order as the Agent, with the consent of the Required
Lenders, may elect, and any part of such funds which the Agent, with the consent
of the Required Lenders, elects not so to apply and deems not required as
collateral security for the Obligations shall be paid over from time to time by
the Agent to the Borrower or to whomsoever may be lawfully entitled to receive
the same. Any balance of such Proceeds remaining after the Obligations shall
have been paid in full, no Letters of Credit shall be outstanding and the
Commitments shall have terminated shall be paid over to the Borrower or to
whomsoever may be lawfully entitled to receive the same.
6.6 CODE AND OTHER REMEDIES. If an Event of Default shall occur and
be continuing, the Agent, on behalf of the Lenders, may exercise, in addition to
all other rights and remedies granted to them in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations, all
rights and remedies of a secured party under the New York UCC or any other
applicable law. Without limiting the generality of the foregoing, the Agent,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon any Grantor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or office of the Agent or any Lender or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
The Agent or any Lender shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in any Grantor, which right or equity is hereby waived and
released. Each Grantor further agrees, at the Agent's request, to assemble the
Collateral and make it available to the Agent at places which the Agent shall
reasonably select, whether at such Grantor's premises or elsewhere. The Agent
shall apply the net proceeds of any action taken by it pursuant to this Section
6.6, after deducting all reasonable costs and expenses of every kind incurred in
connection therewith or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the Agent
and the Lenders hereunder, including, without limitation, reasonable attorneys'
fees and disbursements, to the payment in whole or in part of the Obligations,
in such order as the Agent, with the consent of the Required Lenders,
17
may elect, and only after such application and after the payment by the Agent
of any other amount required by any provision of law, including, without
limitation, Section 9-504(1)(c) of the New York UCC, need the Agent account for
the surplus, if any, to any Grantor. To the extent permitted by applicable
law, each Grantor waives all claims, damages and demands it may acquire against
the Agent or any Lender arising out of the exercise by them of any rights
hereunder. If any notice of a proposed sale or other disposition of Collateral
shall be required by law, such notice shall be deemed reasonable and proper if
given at least 10 days before such sale or other disposition.
6.7 REGISTRATION RIGHTS. (a) If the Agent shall determine to exercise
its right to sell any or all of the Pledged Stock pursuant to Section 6.6, and
if in the opinion of the Agent it is necessary or advisable to have the Pledged
Stock, or that portion thereof to be sold, registered under the provisions of
the Securities Act, the relevant Grantor will cause the Issuer thereof to (i)
execute and deliver, and cause the directors and officers of such Issuer to
execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts as may be, in the opinion of the Agent, necessary or
advisable to register the Pledged Stock, or that portion thereof to be sold,
under the provisions of the Securities Act, (ii) use its best efforts to cause
the registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the opinion of the
Agent, are necessary or advisable, all in conformity with the requirements of
the Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. Each Grantor agrees to cause such Issuer to
comply with the provisions of the securities or "Blue Sky" laws of any and all
jurisdictions which the Agent shall designate and to make available to its
security holders, as soon as practicable, an earnings statement (which need not
be audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) Each Grantor recognizes that the Agent may be unable to effect a
public sale of any or all the Pledged Stock, by reason of certain prohibitions
contained in the Securities Act and applicable state securities laws or
otherwise, and may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers which will be obliged to agree, among other
things, to acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. Each Grantor acknowledges
and agrees that any such private sale may result in prices and other terms less
favorable than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner. The Agent shall be under no
obligation to delay a sale of any of the Pledged Stock for the period of time
necessary to permit the Issuer thereof to register such securities for public
sale under the Securities Act, or under applicable state securities laws, even
if such Issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged Stock pursuant to this Section 6.7 valid and
binding and in compliance with any and all other applicable Requirements of Law.
Each Grantor further agrees that a breach of any of the covenants contained in
this Section 6.7 will cause irreparable injury to the Agent and the Lenders,
that the Agent and the Lenders have no adequate remedy at law in respect of such
breach and, as a consequence, that each and every covenant contained in this
Section 6.7 shall be specifically enforceable against such Grantor, and such
Grantor hereby waives and agrees not to assert any defenses against an action
for specific performance of such covenants except for a defense that no Event of
Default has occurred under the Credit Agreement.
6.8 WAIVER; DEFICIENCY. Each Grantor waives and agrees not to assert
any rights or privileges which it may acquire under Section 9-112 of the New
York UCC. Each Grantor shall remain
18
liable for any deficiency if the proceeds of any sale or other disposition of
the Collateral are insufficient to pay its Obligations and the fees and
disbursements of any attorneys employed by the Agent or any Lender to collect
such deficiency.
SECTION 7. THE AGENT
7.1 AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT, ETC. (a) Each Grantor
hereby irrevocably constitutes and appoints the Agent and any officer or agent
thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of such Grantor and in the name of such Grantor or in its own name, for
the purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Agreement,
and, without limiting the generality of the foregoing, each Grantor hereby
gives the Agent the power and right, on behalf of such Grantor, without notice
to or assent by such Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Receivable or with respect to any other Collateral and file any claim or
take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Agent for the purpose of collecting any
and all such moneys due under any Receivable or with respect to any other
Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver,
and have recorded, any and all agreements, instruments, documents and
papers as the Agent may request to evidence the Agent's and the Lenders'
security interest in such Intellectual Property and the goodwill and
general intangibles of such Grantor relating thereto or represented
thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.6
or 6.7, any indorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Agent or as the Agent shall direct; (2) ask or
demand for, collect, and receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in
respect of or arising out of any Collateral; (3) sign and indorse any
invoices, freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications, notices and
other documents in connection with any of the Collateral; (4) commence and
prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any portion
thereof and to enforce any other right in respect of any Collateral; (5)
defend any suit, action or proceeding brought against such Grantor with
respect to any Collateral; (6) settle, compromise or adjust any such suit,
action or proceeding and, in connection therewith, give such discharges or
releases as the Agent may deem appropriate; (7) assign any Copyright,
Patent or Trademark (along with the goodwill of the business to which any
such Copyright,
19
Patent or Trademark pertains), throughout the world for such term or
terms, on such conditions, and in such manner, as the Agent shall in its
sole discretion determine; and (8) generally, sell, transfer, pledge and
make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Agent were the absolute
owner thereof for all purposes, and do, at the Agent's option and such
Grantor's expense, at any time, or from time to time, all acts and things
which the Agent deems necessary to protect, preserve or realize upon the
Collateral and the Agent's and the Lenders' security interests therein and
to effect the intent of this Agreement, all as fully and effectively as
such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Agent agrees that it will not exercise any rights under the power of attorney
provided for in this Section 7.1(a) unless an Event of Default shall have
occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Agent, at its option, but without any
obligation so to do, may perform or comply, or otherwise cause performance or
compliance, with such agreement.
(c) The expenses of the Agent incurred in connection with actions
undertaken as provided in this Section 7.1, together with interest thereon at a
rate per annum equal to the rate per annum at which interest would then be
payable on past due ABR Loans under the Credit Agreement, from the date of
payment by the Agent to the date reimbursed by the relevant Grantor, shall be
payable by such Grantor to the Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations
and agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
7.2 DUTY OF AGENT. The Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession, under
Section 9-207 of the New York UCC or otherwise, shall be to deal with it in the
same manner as the Agent deals with similar property for its own account.
Neither the Agent, any Lender nor any of their respective officers, directors,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
any Grantor or any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof. The powers conferred on the Agent
and the Lenders hereunder are solely to protect the Agent's and the Lenders'
interests in the Collateral and shall not impose any duty upon the Agent or any
Lender to exercise any such powers. The Agent and the Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
7.3 EXECUTION OF FINANCING STATEMENTS. Pursuant to Section 9-402 of
the New York UCC and any other applicable law, each Grantor authorizes the Agent
to file or record financing statements and other filing or recording documents
or instruments with respect to the Collateral without the signature of such
Grantor in such form and in such offices as the Agent reasonably determines
appropriate to perfect the security interests of the Agent under this Agreement.
A photographic or other reproduction of this Agreement shall be sufficient as a
financing statement or other filing or recording document or instrument for
filing or recording in any jurisdiction.
20
7.4 AUTHORITY OF AGENT. Each Grantor acknowledges that the rights and
responsibilities of the Agent under this Agreement with respect to any action
taken by the Agent or the exercise or non-exercise by the Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Agent and the Grantors, the Agent shall be conclusively presumed to be acting as
agent for the Lenders with full and valid authority so to act or refrain from
acting, and no Grantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
SECTION 8. MISCELLANEOUS
8.1 AMENDMENTS IN WRITING. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with subsection 11.1 of the Credit Agreement.
8.2 NOTICES. All notices, requests and demands to or upon the Agent
or any Grantor hereunder shall be effected in the manner provided for in
subsection 11.2 of the Credit Agreement; PROVIDED that any such notice, request
or demand to or upon any Guarantor shall be addressed to such Guarantor at its
notice address set forth on SCHEDULE 1.
8.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES. Neither the
Agent nor any Lender shall by any act (except by a written instrument pursuant
to Section 8.1), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder or to have acquiesced in any Default or
Event of Default. No failure to exercise, nor any delay in exercising, on the
part of the Agent or any Lender, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by the Agent or
any Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Agent or such Lender would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
8.4 ENFORCEMENT EXPENSES; INDEMNIFICATION. (a) Each Guarantor agrees
to pay or reimburse each Lender and the Agent for all its costs and expenses
incurred in collecting against such Guarantor under the guarantee contained in
Section 2 or otherwise enforcing or preserving any rights under this Agreement
and the other Loan Documents to which such Guarantor is a party, including,
without limitation, the reasonable fees and disbursements of counsel (including
the allocated fees and expenses of in-house counsel) to each Lender and of
counsel to the Agent.
(b) Each Guarantor agrees to pay, and to save the Agent and the
Lenders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the Agent and the
Lenders harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
21
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement to
the extent the Borrower would be required to do so pursuant to subsection
11.5 of the Credit Agreement.
(d) The agreements in this Section 8.4 shall survive repayment of the
Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
8.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Agent and the Lenders and their successors and assigns; PROVIDED that no Grantor
may assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Agent.
8.6 SET-OFF. Each Grantor hereby irrevocably authorizes the Agent and
each Lender at any time and from time to time while an Event of Default pursuant
to subsection 9(a) of the Credit Agreement shall have occurred and be
continuing, without notice to such Grantor or any other Grantor, any such notice
being expressly waived by each Grantor, to set-off and appropriate and apply any
and all deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Agent or such Lender to or for the
credit or the account of such Grantor, or any part thereof in such amounts as
the Agent or such Lender may elect, against and on account of the obligations
and liabilities of such Grantor to the Agent or such Lender hereunder and claims
of every nature and description of the Agent or such Lender against such
Grantor, in any currency, whether arising hereunder, under the Credit Agreement,
any other Loan Document or otherwise, as the Agent or such Lender may elect,
whether or not the Agent or any Lender has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Agent and each Lender shall notify such Grantor promptly of any
such set-off and the application made by the Agent or such Lender of the
proceeds thereof, PROVIDED that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of the Agent and each
Lender under this Section 8.6 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Agent or such
Lender may have.
8.7 COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
8.8 SEVERABILITY. 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
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.9 SECTION HEADINGS. The Section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
8.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Agent and the Lenders with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Agent or any Lender relative
to subject matter hereof and thereof not expressly set forth or referred to
herein or in the
22
other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 SUBMISSION TO JURISDICTION; WAIVERS. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Grantor at its address referred to in Section 8.2 or at such other address
of which the Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
8.13 ACKNOWLEDGEMENTS. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a
party;
(b) neither the Agent nor any Lender has any fiduciary relationship
with or duty to any Grantor arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between
the Grantors, on the one hand, and the Agent and Lenders, on the other
hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Grantors and the Lenders.
8.14 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
23
AND FOR ANY COUNTERCLAIM THEREIN.
8.15 ADDITIONAL GRANTORS. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to subsection 7.9 of the
Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex 1 hereto.
8.16 RELEASES. (a) At such time as the Loans, the Reimbursement
Obligations and the other Obligations shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be outstanding,
the Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to survive such
termination) of the Agent and each Grantor hereunder shall terminate, all
without delivery of any instrument or performance of any act by any party, and
all rights to the Collateral shall revert to the Grantors. At the request and
sole expense of any Grantor following any such termination, the Agent shall
deliver to such Grantor any Collateral held by the Agent hereunder, and execute
and deliver to such Grantor such documents as such Grantor shall reasonably
request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the Credit Agreement,
then the Agent, at the request and sole expense of such Grantor, shall execute
and deliver to such Grantor all releases or other documents reasonably necessary
or desirable for the release of the Liens created hereby on such Collateral. At
the request and sole expense of the Borrower, a Guarantor shall be released from
its obligations hereunder in the event that all the Capital Stock of such
Guarantor shall be sold, transferred or otherwise disposed of in a transaction
permitted by the Credit Agreement; PROVIDED that the Borrower shall have
delivered to the Agent, at least ten Business Days prior to the date of the
proposed release, a written request for release identifying the relevant
Guarantor and the terms of the sale or other disposition in reasonable detail,
including the price thereof and any expenses in connection therewith, together
with a certification by the Borrower stating that such transaction is in
compliance with the Credit Agreement and the other Loan Documents.
24
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
and Collateral Agreement to be duly executed and delivered as of the date first
above written.
AFTERMARKET TECHNOLOGY CORP.
By:____________________________
Name:
Title:
AARON'S AUTOMOTIVE PRODUCTS, INC.
By:____________________________
Name:
Title:
ACI ELECTRONICS HOLDING CORP.
By:____________________________
Name:
Title:
ACI ELECTRONICS INVESTMENT CORP.
By:____________________________
Name:
Title:
ACI ELECTRONICS, L.P.
By: ACI ELECTRONICS HOLDING CORP., its
General Partner
By:____________________________
Name:
Title:
25
ATC DISTRIBUTION GROUP, INC.
By:____________________________
Name:
Title:
ATS REMANUFACTURING, INC.
By:____________________________
Name:
Title:
COMPONENT REMANUFACTURING SPECIALISTS, INC.
By:____________________________
Name:
Title:
CRS HOLDINGS CORP.
By:____________________________
Name:
Title:
GM REMANUFACTURING CORP.
By:____________________________
Name:
Title:
METRAN AUTOMATIC TRANSMISSION PARTS CORP.
By:____________________________
Name:
Title:
00
XXXXXX XXXX ACQUISITION CORP.
By:____________________________
Name:
Title:
RPM MERIT, INC.
By:____________________________
Name:
Title:
SCHEDULE 1
NOTICE ADDRESSES OF GUARANTORS
1. Aaron's Automotive Products, Inc.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
2. ACI Electronics Holding Corp.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
3. ACI Electronics Investment Corp.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
4. ACI Electronics, L.P.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
5. ATC Distribution Group, Inc.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
6. ATS Remanufacturing, Inc.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
7. Component Remanufacturing Specialists, Inc.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
8. CRS Holdings Corp.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
9. GM Remanufacturing Corp.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
10. Metran Automatic Transmission Parts Corp.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
11. Xxxxxx Road Acquisition Corp.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
12. RPM Merit, Inc.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
SCHEDULE 2
DESCRIPTION OF PLEDGED SECURITIES
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ENTITY STOCK # SHARES HOLDER % OWNED
CERTIFICATE # BY ATC(1)
--------------------------------------------------------------------------------
Aaron's Automotive 1 1,000 ATC 100%
Products, Inc.(1)
--------------------------------------------------------------------------------
ACI Electronics 1 1,000 ATC 100%
Holding Corp.
--------------------------------------------------------------------------------
ACI Electronics 1 1,000 ATC 100%
Investment Corp.
--------------------------------------------------------------------------------
ATC Distribution 1 1,000 ATC 100%
Group, Inc.
("ATCDG")(2)
--------------------------------------------------------------------------------
ATS Remanufacturing, 1 1,000 Component 100%
Inc. Remanufacturing
Specialists, Inc.
--------------------------------------------------------------------------------
Component 11 1,000 CRS Holdings 100%
Remanufacturing
Specialists, Inc.
--------------------------------------------------------------------------------
CRS Holdings Corp. 1 1,000 ATC 100%
--------------------------------------------------------------------------------
GM Remanufacturing 1 1,000 Component 100%
Corp. Remanufacturing
Specialists, Inc.
--------------------------------------------------------------------------------
King-O-Matic 2 650 ATCDG 100%
Industries
Limited
--------------------------------------------------------------------------------
Metran Automatic 7 50 ATCDG(3) 100%
Transmission
Parts Corp.
--------------------------------------------------------------------------------
Xxxxxx Road 1 1,000 ATC 100%
Acquisition Corp.
--------------------------------------------------------------------------------
ENTITY STOCK # SHARES HOLDER % OWNED
CERTIFICATE # BY ATC
--------------------------------------------------------------------------------
Partes 1 64,740(4) RPM 100%
Remanufacturadas
de Mexico, S.A.
de C.V.
____________________
(4) Constitutes 65% of the issued and outstanding stock owned by RPM.
___________________
(1) The stock certificate is in the name of AAP Acquisition Corp., as the
shares were issued before the merger of Aaron's Automotive Products, Inc.
into AAP Acquisition Corp. and the simultaneous name change to Aaron's
Automotive Products, Inc.
(2) The certificate was issued when ATCDG was called "TM-AL Acquisition
Corp."
(3) The certificate was issued to ATCDG prior to its name change from
"TM-AL Acquisition Corp." The merger of Metran into ATCDG is pending
in New York.
2
-------------------------------------------------------------------------------------
RPM Merit, Inc.(5) 1 1,000 ATCDG 100%
-------------------------------------------------------------------------------------
TranShop Management
Systems, Inc. 4 100 ATCDG 100%
-------------------------------------------------------------------------------------
10468 Newfoundland Inc. 2 650 ATC 100%
-------------------------------------------------------------------------------------
10469 Newfoundland Inc. 2 650 ATC 100%
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
_____________________________
(5) The stock certificate is in the name of AAP Acquisition Corp., as the
shares were issued before the merger of Aaron's Automotive Products,
Inc. into AAP Acquisition Corp. and the simultaneous name change to
Aaron's Automotive Products, Inc.
SCHEDULE 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
UNIFORM COMMERCIAL CODE FILINGS
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
NAME AND ADDRESS OF DEBTOR STATE OF FILING STATE LOCAL
FILING OFFICE FILING OFFICE
---------------------------------------------------------------------------------------------------------------------
Aftermarket Technology Corp. Illinois Secretary of State DuPage County
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------
Aaron's Automotive Products, Florida Secretary of State Orange County
Inc.
0000 X. Xxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
-------------------------------------------------------------------------
Illinois Secretary of State Xxxx County
-------------------------------------------------------------------------
Louisiana Secretary of State Jefferson County
-------------------------------------------------------------------------
Maryland Secretary of State Baltimore City
-------------------------------------------------------------------------
Michigan Secretary of State Xxxxx County
-------------------------------------------------------------------------
Missouri Secretary of State Xxxxxx County
Xxxxxxx County
Jasper County
St. Louis County
-------------------------------------------------------------------------
North Carolina Secretary of State Mecklenburg County
-------------------------------------------------------------------------
New Jersey Secretary of State Bergen County
-------------------------------------------------------------------------
Tennessee Secretary of State Shelby County
-------------------------------------------------------------------------
Texas Secretary of State Xxxxxx County
-------------------------------------------------------------------------
Virginia Secretary of State City of Norfolk
---------------------------------------------------------------------------------------------------------------------
ACI Electronics Holding Corp. Illinois Secretary of State DuPage County
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
2
------------------------------------------------------------------------------------------------------------------------
ACI Electronics Investment Corp. Illinois Secretary of State DuPage County
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------
ACI Electronics, L.P. Illinois Secretary of State DuPage County
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000* ------------------------------------------------------------------------------
Nevada Secretary of State Washoe County
------------------------------------------------------------------------------
North Carolina Secretary of State Mecklenburg County
------------------------------------------------------------------------------
Oklahoma Secretary of State Canadian County
Oklahoma County
------------------------------------------------------------------------------
Texas Secretary of State Dallas County
Xxxxxx County
Xxxxxx County
------------------------------------------------------------------------------------------------------------------------
ATC Distribution Group, Inc. Alabama Secretary of State Lauderdale County
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------
Florida Secretary of State Xxxxx County
Orange County
------------------------------------------------------------------------------
Georgia Secretary of State Xxxxxx County
------------------------------------------------------------------------------
Illinois Secretary of State Xxxx County
DuPage County
------------------------------------------------------------------------------
Kentucky Secretary of State Bullitt County
------------------------------------------------------------------------------
Maryland Secretary of State Baltimore City
------------------------------------------------------------------------------
Massachusetts Secretary of State Malden City
------------------------------------------------------------------------------
Michigan Secretary of State Kent County
Xxxxx County
------------------------------------------------------------------------------
Minnesota Secretary of State Hennepin County
Anoka County
------------------------------------------------------------------------------
Missouri Secretary of State Xxxxxx County
Xxxxxxx County
3
-----------------------------------------------------------------------------
St. Louis County
-----------------------------------------------------------------------------
New York Secretary of State Nassau County
-----------------------------------------------------------------------------
North Carolina Secretary of State Mecklenburg County
-----------------------------------------------------------------------------
Ohio Secretary of State Xxxxxx County
Xxxxxxxxxx County
-----------------------------------------------------------------------------
Pennsylvania Secretary of Xxxxx Xxxxx Xxxxxx
Xxxx Xxxxxx
-----------------------------------------------------------------------------
Xxxxxxxxx Secretary of State Davidson County
Shelby County
-----------------------------------------------------------------------------
Texas Secretary of State Bexar County
Dallas County
Xxxxxx County
Xxxxxx County
-----------------------------------------------------------------------------
Virginia Secretary of State City of Norfolk
-----------------------------------------------------------------------------
Wisconsin Secretary of State Rock County
------------------------------------------------------------------------------------------------------------------------
ATS Remanufacturing, Inc. Xxxxx Xxxxxxxx Xxxxxxxxx xx Xxxxx Xxxxxx Xxxxxx
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------
Component Remanufacturing Specialists, Inc. New Jersey Secretary of State Bergen County
000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------
CRS Holdings Corp. New Jersey Secretary of State Bergen County
000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------
GM Remanufacturing Corp. Illinois Secretary of State DuPage County
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000 (*)
------------------------------------------------------------------------------
Oklahoma Secretary of State Oklahoma County
------------------------------------------------------------------------------------------------------------------------
Metran Automatic Transmission New York Secretary of State Nassau County
----------------------------
* The address will change to the address of the target after completion
of the acquisition.
4
------------------------------------------------------------------------------------------------------------------------
Parts Corp.
00 Xxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------
Xxxxxx Road Acquisition Corp. Illinois Secretary of State DuPage County
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000*
------------------------------------------------------------------------------
Michigan Secretary of State Xxxxx County
------------------------------------------------------------------------------
Oklahoma Secretary of State Canadian County
Oklahoma County
------------------------------------------------------------------------------------------------------------------------
RPM Merit, Inc. Arizona Secretary of State Pima County
12250 E. 4th Street Maricopa County
Xxxxxx Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------
California Secretary of State Alameda County
Fresno County
Los Angeles County
Sacramento County
San Bernardino County
San Diego County
Santa Xxxxx County
------------------------------------------------------------------------------
Colorado** Secretary of State
------------------------------------------------------------------------------
Nevada Secretary of State Xxxxx County
------------------------------------------------------------------------------
New Mexico Secretary of State Bernalillo County
------------------------------------------------------------------------------
Oregon Secretary of State Multnomah County
------------------------------------------------------------------------------
Utah*** Secretary of State
------------------------------------------------------------------------------
Washington**** Secretary of State
------------------------------------------------------------------------------------------------------------------------
TranShop Management System, Inc. Alabama Secretary of State Lauderdale County
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
----------------------------
** No filing in El Paso County and Denver County; only real estate filings
are accepted.
*** No filing in Salt Lake City County; only real estate filings are accepted.
**** No filing in King County and Spokane County; only real estate filings are
accepted.
5
-------------------------------------------------------------------------------
Illinois Secretary of State DuPage County
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
PATENT AND TRADEMARK FILINGS
United States Patent and Trademark Office
ACTIONS WITH RESPECT TO PLEDGED STOCK
Delivery of Pledged Stock to Agent in New York
OTHER ACTIONS
None
SCHEDULE 4
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Grantor Location
------- --------
Aftermarket Technology Corp. (Delaware) 000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Aaron's Automotive Products, Inc. (Delaware) 0000 X. Xxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
ACI Electronics Holding Corp. (Delaware) 000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
ACI Electronics Investment Corp. (Delaware) 000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
ACI Electronics, L.P. (Delaware) 000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
ATC Distribution Group, Inc. (Delaware) 000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
ATS Remanufacturing, Inc. (Delaware) 0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Component Remanufacturing Specialists, Inc. (New Jersey) 000 Xxxxxxxxx Xx.
Xxxxxx, XX 00000
CRS Holdings Corp. (New Jersey) 000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
GM Remanufacturing Corp. (Delaware) 000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Metran Automatic Transmission Parts Corp. (New York) 00 Xxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
Xxxxxx Road Acquisition Corp. (Delaware) 000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
RPM Merit, Inc. (Delaware) 00000 X. 0xx Xxxxxx
Xxxxxx Xxxxxxxxx, XX 00000
TranShop Management System, Inc. (Alabama) 000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
SCHEDULE 5
LOCATION OF INVENTORY AND EQUIPMENT
COMPANY ADDRESS CITY STATE/ZIP COUNTY
---------------------------------------------------------------------------------------------------
Aaron's 0000 X. Xxx Xxxxxxxxx Xxxxxxx XX 00000 Orange Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 Xxxxxx Xx. Xxxxxxx XX 00000 Jefferson Co.
---------------------------------------------------------------------------------------------------
Aaron's 000 X. Xxxxxxxx Xx. Xxxxxxxx XX 00000 Xxxx Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 Xxxxx Xxxxxxx Xx. Xxxxxxxxx XX 00000 Baltimore City
(No County)
---------------------------------------------------------------------------------------------------
Aaron's 00000 X. Xxxxxxx Xx. Xxxxxx XX 00000 Xxxxx Co.
---------------------------------------------------------------------------------------------------
Aaron's 000 Xxxxxxx XX Xxxxx Xxxxxx XX 00000 Kent Co.
---------------------------------------------------------------------------------------------------
Aaron's *A423001 Xxxxx Xxxx. Xxxxxx XX 00000 Jasper Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 X. Xxxxxxxx Xxxxxxxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 X. Xx. Xxxxxx Xxxxxxxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 X. Xxxxxxx Xxxxxxxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 X. Xxxxxxx Xxxxxxxxxxx XX 00000 Xxxxxx Co.
Commerce Ave.
---------------------------------------------------------------------------------------------------
Aaron's 0000 X. Xxxxxxxx Xxxxxxxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 X. Xxxxxxx Xxxxxxxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 X. Xxxxxxxx Xxxxxxxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 X. Xxxxxx Xx. Xxxxx Xxxxx XX 00000 St. Louis Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 X. Xxxxxxx Xxxxxx Xxxx XX 00000 Xxxxxxx Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 Xxxxxxx Xx. Xxxxxxxxx XX 00000 Mecklenburg Co.
---------------------------------------------------------------------------------------------------
Aaron's 00 Xxxxxx Xx. X. Xxxxxxxxxx XX 00000 Bergen Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 X. Xxxxxx Xx. Xxxxxxx XX 00000 Shelby Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 Xxxxxxxxxx Xxxx. Xxxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
Aaron's 0000 Xxxxxxxxxx Xxxx. Xxxxxxx XX 00000
---------------------------------------------------------------------------------------------------
ACI Electronics 0000-X Xxxxx Xxxxx Xxxxxxxxx XX 00000 Mecklenburg Co.
Center Lane
---------------------------------------------------------------------------------------------------
ACI Electronics 0000 Xxxxx Xxxx., Xxxxxx XX 00000 Washoe Co.
Xxxxx 000
---------------------------------------------------------------------------------------------------
ACI Electronics 0000 Xxxxxxxx Xxxx., Xxxxxxxx Xxxx XX 00000 Oklahoma Co.
Xxxxx 000
---------------------------------------------------------------------------------------------------
ACI Electronics 0000 Xxxxxx Xxxxx, Xxxxxxxxxx XX 00000 Xxxxxx Xx.
Xxxxx 000
---------------------------------------------------------------------------------------------------
ACI Electronics 00000 Xxxxxx Xxxxx Xxxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
ACI Electronics 00000 Xxxxxx Xxxxx Xxxxxxx XX 00000 Xxxxxx Co.
COMPANY ADDRESS CITY STATE/ZIP COUNTY
---------------------------------------------------------------------------------------------------
ACI Electronics 0000 Xxxxx Xxxx Xxxx Xxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
ATC 000 Xxxxxxx Xxxx, Xxxxxxxx XX 00000 DuPage Co.
Ste. 100
---------------------------------------------------------------------------------------------------
ATCDG 000 Xxxxxx Xx. 00 Xxxxxxxx XX 00000 Lauderdale Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxxxxxxxxxx Xxxxxxxxxxxx XX 00000 Xxxxx Co.
Avenue
---------------------------------------------------------------------------------------------------
ATCDG 0000 X. Xxx Xxxxxxxxx Xxxxxxx XX 00000 Orange Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxxxxxx Xx. Xxxxxxx XX 00000 Orange Co.
---------------------------------------------------------------------------------------------------
ATCDG 000 Xxx Xxxxxx Xxxx. Xxxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
ATCDG 000 X. Xxxxxxxx Xx. Xxxxxxxx XX 00000 Xxxx Co.
---------------------------------------------------------------------------------------------------
ATCDG 000 Xxxx 000xx Xx. Xxxxxx XX 00000 Xxxx Co.
---------------------------------------------------------------------------------------------------
ATCDG 000 Xxxxx Xx. Xxxxxxxxxx XX 00000 Bullitt Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxx Xxxx Xx. Xxxxxxxxxx XX 00000 Bullitt Co.
---------------------------------------------------------------------------------------------------
ATCDG 000 Xxxxxxxxxx Xx. Xxxxxx XX 00000
---------------------------------------------------------------------------------------------------
ATCDG 00000 X. Xxxxxxx Xx. Xxxxxx XX 00000 Xxxxx Co.
---------------------------------------------------------------------------------------------------
ATCDG 000 Xxxxxxx XX Xxxxx Xxxxxx XX 00000 Kent Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxxxxx Xx. XX Xxxxxxxx Xxx. XX 00000 Anoka Co.
Ste. 150
---------------------------------------------------------------------------------------------------
ATCDG 000 Xxxxxxxxx Xxxxxx X. Xxxxxx Xxxxxx XX 00000 Hennipin Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 X. Xxxxxx Xx. Xxxxx Xxxxx XX 00000 St. Louis Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxxx Xxxxxxx Xxxxxxxx XX 00000 St. Louis Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 X. Xxxxxxx Xxxxxx Xxxx XX 00000 Xxxxxxx Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 X. Xxxxxxxx Xxxxxxxxxxx XX 00000 Xxxxxx Co.
Expressway
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxxxxx Xx. Xxxxxxxxx XX 00000 Mecklenburg Co.
---------------------------------------------------------------------------------------------------
ATCDG 00000 Xxxxxxx Xxxxx Xxxxxx Xxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 X. Xxxxx Xx. Xxxxxx XX 00000 Xxxxxxxxxx Co.
---------------------------------------------------------------------------------------------------
ATCDG 000 Xxxxx Xx. Xxxxxxx XX 00000 Bucks Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 X. Xxxxxx Xx. Xxxxxxx XX 00000 Shelby Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000 Davidson Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxxxx Xxxx. Xxxxxx XX 00000 Dallas Co.
Page 3
COMPANY ADDRESS CITY STATE/ZIP COUNTY
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxx Xxx Xxxxxx XX 00000 Dallas Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Bexar Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxxxxxxxx Xxxx. Xxxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 X X. Xxxxx Xxxx. Xxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxxxxxxx Xx. Xxxxxxx XX 00000 No County
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxxxxxxxx Xxxx. Xxxxxxx XX 00000 No County
---------------------------------------------------------------------------------------------------
ATCDG 0000 Xxxxxxx Xx. Xxxxxxxxxx XX 00000 Rock Co.
---------------------------------------------------------------------------------------------------
ATS 0000 Xxxxx Xxxx Xxxxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
ATS 0000 X. Xxxxxxx Xxxx. Xxxxxxxx XX 00000 Xxxxxx Co.
---------------------------------------------------------------------------------------------------
ATS 000 Xxxxxx Xxxxx Xxxxx Xxxxxxxx XX 00000 Cleveland Co.
---------------------------------------------------------------------------------------------------
CRS 000 Xxxxxxxxx Xxxxx Xxxxxx XX 00000 Bergen Co.
---------------------------------------------------------------------------------------------------
GM Reman 0000 Xxxxxxxxx 00xx Xxxxxxxx Xxxx XX 00000 Oklahoma Co.
Street
---------------------------------------------------------------------------------------------------
GM Reman 0000 Xxxxx Xxxxx Xx Xxxxxxxx Xxxx XX Oklahoma Co.
---------------------------------------------------------------------------------------------------
King-O-Matic 0000 0xx Xx. X.X. Xxxxxxx Xxxxxxx (Xxxxxx)
---------------------------------------------------------------------------------------------------
King-O-Matic 0000 Xxxxxxxx Xxxxxx Xxxxx XX (Vancouver)
---------------------------------------------------------------------------------------------------
King-O-Matic 0000 Xxxxxxx Xxxxx Xxxxxxxxxxx Xxxxxxx X0X 0X0
---------------------------------------------------------------------------------------------------
King-O-Matic 000 Xxxxxxx Xxxxx Xxxxxxxxxxx Xxxxxxx X0X 0X0
---------------------------------------------------------------------------------------------------
King-O-Matic 00000 Xxxxxx-Xxxxxxxx Xxxxxxxx Xxxxxx
Avenue
---------------------------------------------------------------------------------------------------
King-O-Matic 0000 Xxxxx Xx. Xxxxxx Xxxxxxxxxxxx
---------------------------------------------------------------------------------------------------
Mascot 0000 Xxxxxxx Xxxxx Xxxxxxxxxxx Xxxxxxx X0X 0X0
-------------------------------------------------------------------------------
00000 000xx Xxxxxx Xxxxxxxx Xxxxxxx
-------------------------------------------------------------------------------
00 Xxxxxxxx Xxxxxxxx Xxxxxxx Xxx Xxxxxxxxx X0X0X0
---------------------------------------------------------------------------------------------------
Metran 00 Xxxxxxx Xxxxxxxx Xxxxxxx XX 00000 Nassau Co.
---------------------------------------------------------------------------------------------------
Xxxxxx Road 0000 Xxxx Xxxx Xxxxxxxx Xxxx XX 00000 Canadian Co.
---------------------------------------------------------------------------------------------------
Xxxxxx Road 00000 Xxxxxxxxx 0xx Xxxxxxxx Xxxx XX 00000 Canadian Co.
---------------------------------------------------------------------------------------------------
Xxxxxx Road 000 Xxxx Xxxxxxxx Xxxxxxxx Xxxx XX Oklahoma Co.
Page 3
COMPANY ADDRESS CITY STATE/ZIP COUNTY
---------------------------------------------------------------------------------------------------
Xxxxxx Road 800 West Sheridan Oklahoma City OK Oklahoma Co.
---------------------------------------------------------------------------------------------------
Xxxxxx Road 000 Xxxxxxxx 00xx, Xxxxxxxx Xxxx XX 00000 Oklahoma Co.
Xxxxx 000
---------------------------------------------------------------------------------------------------
Xxxxxx Xxxx 501 North Xxxxxx Oklahoma City OK Oklahoma Co.
---------------------------------------------------------------------------------------------------
Xxxxxx Road 000 Xxxx Xxxx Xxxxxx Xxxxxxxx Xxxx XX 00000 Oklahoma Co.
---------------------------------------------------------------------------------------------------
RPM 0000 X. 00xx Xxxxxx Xxxxxxx XX 00000 Maricopa Co.
---------------------------------------------------------------------------------------------------
RPM 0000 X. Xxxxxx Xxxxxx XX 00000 Pima Co.
---------------------------------------------------------------------------------------------------
RPM 00000 X. Xxxxxxxx Xxx Xxxxxxx XX 00000 Los Angeles Co.
---------------------------------------------------------------------------------------------------
RPM 00000 Xxxxxxx Xx. Xxx Xxxx XX 00000 Los Angeles Co.
---------------------------------------------------------------------------------------------------
RPM 00000 X. 0xx Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 San Bernardino Co.
---------------------------------------------------------------------------------------------------
RPM 000 X. 00xx Xx. Xxxx X Xxx Xxxxx XX 00000 San Diego Co.
---------------------------------------------------------------------------------------------------
RPM 000 X Xxxxxx Xxxxxx XX 00000 Fresno Co.
---------------------------------------------------------------------------------------------------
RPM 0000 Xxxxx Xx. Xxx Xxxxxxx XX 00000 Alameda Co.
---------------------------------------------------------------------------------------------------
RPM 0000 00xx Xx. Xxxxxxx XX 00000 Alameda Co.
---------------------------------------------------------------------------------------------------
RPM 000 Xxxxxxxxx Xxxxxx Xxx Xxxx XX 00000 Santa Xxxxx Co.
---------------------------------------------------------------------------------------------------
RPM 0000 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Sacramento Co.
---------------------------------------------------------------------------------------------------
RPM 215-217 Xxxxxxxxx XX 00000 Los Angeles Co.
Avenue Azusa
---------------------------------------------------------------------------------------------------
RPM 0000 X. Xxxxx Xxx. Xxxxxx XX 00000 Denver Co.
---------------------------------------------------------------------------------------------------
RPM 0000 X. Xxxxxxxxxx Xxxxxxxx Xxxxxxx XX 00000 El Paso Co.
Avenue
---------------------------------------------------------------------------------------------------
RPM KM.6 Carretera A Mexicali Mexico
San Xxxx, R.C.
---------------------------------------------------------------------------------------------------
RPM 0000-X Xxxxxxx XX Xxxxxxxxxxx XX 00000 Bernalillo Co.
---------------------------------------------------------------------------------------------------
RPM 000 X. Xxxxxx Xxx Xxxxx XX 00000 Xxxxx Co.
---------------------------------------------------------------------------------------------------
RPM 000 XX 0xx Xx. Xxxxxxxx XX 00000 Multnomah Co.
---------------------------------------------------------------------------------------------------
RPM 0000 X. 0000 Xxxxx Xxxx Xxxx Xxxx XX 00000 Salt Lake Co.
---------------------------------------------------------------------------------------------------
RPM 000 X. Xxxxxxx Xxxxxxx XX 00000 King Co.
---------------------------------------------------------------------------------------------------
RPM N. 0000 Xxxxxxxx Xx. Xxxxxxx XX 00000 Spokane Co.
---------------------------------------------------------------------------------------------------
Page 4
SCHEDULE 6
COPYRIGHTS AND COPYRIGHT LICENSES
None
PATENTS AND PATENT LICENSES
None
TRADEMARKS AND TRADEMARK LICENSES
None
SCHEDULE 7
EXISTING PRIOR LIENS
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Amended
and Restated Guarantee and Collateral Agreement dated as of March 6, 1998 (the
"AGREEMENT"), made by the Grantors parties thereto for the benefit of The Chase
Manhattan Bank, as Agent. The undersigned agrees for the benefit of the Agent
and the Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement and
will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Agent promptly in writing of the
occurrence of any of the events described in Section 5.8(a) of the Agreement.
3. The terms of Sections 6.3(a) and 6.7 of the Agreement shall apply
to it, MUTATIS MUTANDIS, with respect to all actions that may be required of it
pursuant to Section 6.3(a) or 6.7 of the Agreement.
---------------------------------------
[NAME OF ISSUER]
---------------------------------------
By
Title
Address for Notices:
2
Annex 1 to
GUARANTEE AND COLLATERAL AGREEMENT
ASSUMPTION AGREEMENT, dated as of ________________, 199_, made by
______________________________, a ______________ corporation (the "ADDITIONAL
GRANTOR"), in favor of THE CHASE MANHATTAN BANK, as administrative agent (in
such capacity, the "AGENT") for the banks and other financial institutions (the
"LENDERS") parties to the Credit Agreement referred to below. All capitalized
terms not defined herein shall have the meaning ascribed to them in such Credit
Agreement.
W I T N E S S E T H :
WHEREAS, Aftermarket Technology Corp. (the "BORROWER"), the Lenders
and the Agent have entered into an Amended and Restated Credit Agreement, dated
as of March 6, 1998 (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT");
WHEREAS, in connection with the Credit Agreement, the Borrower and
certain of its Affiliates (other than the Additional Grantor) have entered into
the Amended and Restated Guarantee and Collateral Agreement, dated as of March
6, 1998 (as amended, supplemented or otherwise modified from time to time, the
"GUARANTEE AND COLLATERAL AGREEMENT") in favor of the Agent for the benefit of
the Lenders;
WHEREAS, the Credit Agreement requires the Additional Grantor to
become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this
Assumption Agreement in order to become a party to the Guarantee and Collateral
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. GUARANTEE AND COLLATERAL AGREEMENT. By executing and delivering
this Assumption Agreement, the Additional Grantor, as provided in Section 8.15
of the Guarantee and Collateral Agreement, hereby becomes a party to the
Guarantee and Collateral Agreement as a Grantor thereunder with the same force
and effect as if originally named therein as a Grantor and, without limiting
the generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Grantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in Schedules
____________(*****) to the Guarantee and Collateral Agreement. The Additional
Grantor hereby represents and warrants that each of the representations and
warranties contained in Section 3 of the Guarantee and Collateral Agreement is
true and correct on and as the date hereof (after giving effect to this
Assumption Agreement) as if made on and as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
----------
(*****) Refer to each Schedule which needs to be supplemented.
3
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:
--------------------------------
Name:
Title:
