EXHIBIT 10.2
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this "AGREEMENT") dated
as of September 9, 2002 is among U.S. PLASTIC LUMBER CORP. (the "COMPANY"), each
Subsidiary of the Company listed on the signature pages hereof, each other
person or entity which from time to time becomes a party hereto (collectively,
including the Company, the "DEBTORS" and individually each a "DEBTOR") and BANK
OF AMERICA, N.A. ("BANK OF AMERICA"), in its capacity as Administrative Agent
(as defined below) for the Banks (as defined below).
W I T N E S S E T H:
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WHEREAS, the Company, various financial institutions (the "BANKS") and
Bank of America, as Administrative Agent for the Banks (in such capacity, the
"ADMINISTRATIVE AGENT"), have entered into a Credit Agreement dated as of
September 9, 2002 (as amended, restated or otherwise modified from time to time,
the "CREDIT AGREEMENT");
WHEREAS, each of the Debtors other than the Company has executed and
delivered a guaranty (the "GUARANTY") of the obligations of the Company in
respect of the Loan Documents; and
WHEREAS, the obligations of the Company in respect of the Loan
Documents and the obligations of each other Debtor under the Guaranty are to be
secured pursuant to this Agreement;
NOW, THEREFORE, for and in consideration of the premises, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. When used herein, (a) the terms ACCOUNT, ACCOUNT DEBTOR,
CERTIFICATED SECURITY, CHATTEL PAPER, COMMODITY ACCOUNT, COMMODITY CONTRACT,
DEPOSIT ACCOUNT, DOCUMENT, EQUIPMENT, FIXTURE, GOODS, INSTRUMENT, INVENTORY,
INVESTMENT PROPERTY, SECURITY, SECURITY ENTITLEMENT, SECURITIES ACCOUNT and
UNCERTIFICATED SECURITY shall have the respective meanings assigned to such
terms in the UCC (as defined below), (b) capitalized terms used but not defined
have the meanings assigned to such terms in the Credit Agreement and (c) the
following terms have the following meanings (such definitions to be applicable
to both the singular and plural forms of such terms):
ADMINISTRATIVE AGENT - see the recitals.
AGREEMENT - see the introductory paragraph.
BANK OF AMERICA - see the introductory paragraph.
BANKS - see the recitals.
BLOCKED ACCOUNT - see Section 4.
COLLATERAL means, with respect to any Debtor, all property and
rights of such Debtor in which a security interest is granted
hereunder.
COMPANY - see the introductory paragraph.
COMPUTER HARDWARE AND SOFTWARE means, with respect to any
Debtor, (i) all computer and other electronic data processing hardware,
whether now or hereafter owned, licensed or leased by such Debtor,
including, without limitation, all integrated computer systems, central
processing units, memory units, display terminals, printers, features,
computer elements, card readers, tape drives, hard and soft disk
drives, cables, electrical supply hardware, generators, power
equalizers and accessories and all peripheral devices and other related
computer hardware; (ii) all software programs, whether now or hereafter
owned, licensed or leased by such Debtor, designed for use on the
computers and electronic data processing hardware described in CLAUSE
(I) above, including, without limitation, all operating system
software, utilities and application programs in whatsoever form (source
code and object code in magnetic tape, disk or hard copy format or any
other listings whatsoever); (iii) all firmware associated with the
foregoing, whether now or hereafter owned, licensed or leased by such
Debtor; and (iv) all documentation for the hardware, software and
firmware described in CLAUSES (I), (II) and (III) above, whether now or
hereafter owned, licensed or leased by such Debtor, including, without
limitation, flow charts, logic diagrams, manuals, specifications,
training materials, charts and pseudo codes.
CONCENTRATION ACCOUNT - see SECTION 4.
CREDIT AGREEMENT - see the recitals.
DEBTOR - see the introductory paragraph.
DEFAULT means the occurrence of any of the following events:
(a) any Unmatured Event of Default under Section 8.1.5 of the Credit
Agreement with respect to the Company, (b) any Event of Default or (c)
any warranty of any Debtor herein is untrue or misleading in any
material respect and, as a result thereof, the Administrative Agent's
security interest in any material portion of the Collateral (of all
Debtors taken as a whole) is not perfected or the Administrative
Agent's rights and remedies with respect to any material portion of the
Collateral of all Debtors taken as a whole are materially impaired or
otherwise materially adversely affected.
GENERAL INTANGIBLES means, with respect to any Debtor, all of
such Debtor's "general intangibles" as defined in the UCC and, in any
event, includes (without limitation) all of such Debtor's trademarks,
trade names, patents, copyrights, trade secrets, customer lists,
inventions, designs, software programs, mask works, goodwill,
registrations, licenses, franchises, tax refund claims, guarantee
claims, security interests and rights to indemnification.
GUARANTY - see the recitals.
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INTELLECTUAL PROPERTY means all past, present and future:
trade secrets and other proprietary information; trademarks, service
marks, business names, designs, logos, indicia, and/or other source
and/or business identifiers and the goodwill of the business relating
thereto and all registrations or applications for registrations which
have heretofore been or may hereafter be issued thereon throughout the
world; copyrights (including, without limitation, copyrights for
computer programs) and copyright registrations or applications for
registrations which have heretofore been or may hereafter be issued
throughout the world and all tangible property embodying the
copyrights; unpatented inventions (whether or not patentable); patent
applications and patents; industrial designs, industrial design
applications and registered industrial designs; license agreements
related to any of the foregoing and income therefrom; mask works,
books, records, writings, computer tapes or disks, flow diagrams,
specification sheets, source codes, object codes and other physical
manifestations, embodiments or incorporations of any of the foregoing;
the right to xxx for all past, present and future infringements of any
of the foregoing; and all common law and other rights throughout the
world in and to all of the foregoing.
LIABILITIES means (a) with respect to the Company, all
obligations of the Company to the Administrative Agent or any Bank,
howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become
due, which arise under the Credit Agreement or any other Loan Document
(including, without limitation, with respect to Letters of Credit and
Bank Products), as the same may be amended, modified, extended or
renewed from time to time, and (b) with respect to each Debtor other
than the Company, all obligations of such Debtor under the Guaranty or
any other Loan Document.
NON-TANGIBLE COLLATERAL means, with respect to any Debtor,
collectively, such Debtor's Accounts and General Intangibles.
PERMITTED LIENS - see SECTION 3.
UCC means the Uniform Commercial Code as in effect from time
to time in the State of Illinois.
2. GRANT OF SECURITY INTEREST. As security for the payment of all
Liabilities, each Debtor hereby assigns, pledges and conveys to the
Administrative Agent for the benefit of the Banks, and grants to the
Administrative Agent for the benefit of the Banks a continuing security interest
in, all of the following property of such Debtor, whether now or hereafter
existing or acquired:
(i) Accounts;
(ii) Chattel Paper;
(iii) Computer Hardware and Software and all rights with respect
thereto, including, without limitation, any and all licenses,
options, warranties, service contracts, program services, test
rights, maintenance rights, support rights, improvement
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rights, renewal rights and indemnifications, and any
substitutions, replacements, additions or model conversions of
any of the foregoing;
(iv) Deposit Accounts;
(v) Documents;
(vi) General Intangibles;
(vii) Goods (including, without limitation, all of its Equipment,
Fixtures and Inventory), together with all accessions,
additions, attachments, improvements, substitutions and
replacements thereto and therefor;
(viii) Instruments (together with all guaranties thereof and security
therefor);
(ix) Intellectual Property;
(x) Investment Property (including Commodity Accounts, Commodity
Contracts, Securities (whether Certificated Securities or
Uncertificated Securities), Security Entitlements and
Securities Accounts);
(xi) money (of every jurisdiction whatsoever); and
(xii) to the extent not included in the foregoing, other personal
property of any kind or description;
together with all books, records, writings, data bases, information and
other property relating to, used or useful in connection with,
evidencing, embodying, incorporating or referring to any of the
foregoing, all claims and/or insurance proceeds arising out of the
loss, nonconformity or any interference with the use of, or any defects
or infringements of rights in, or damage to, any of the foregoing, and
all proceeds, products, offspring, rents, issues, profits and returns
of and from, and all distributions on and rights arising out of, any of
the foregoing.
3. WARRANTIES. Each Debtor warrants that: (i) no financing statement
(other than any which may have been filed on behalf of the Administrative Agent
or in connection with Permitted Liens (as defined below)) covering any of the
Collateral is on file in any public office; (ii) such Debtor is and will be the
lawful owner of all Collateral, free of all liens and claims whatsoever, other
than the security interest hereunder and liens and claims expressly permitted by
the Credit Agreement ("PERMITTED LIENS"), with full power and authority to
execute this Agreement and perform such Debtor's obligations hereunder, and to
subject the Collateral to the security interest hereunder; (iii) all information
with respect to Collateral and Account Debtors set forth in any schedule,
certificate or other writing at any time heretofore or hereafter furnished by
such Debtor to the Administrative Agent or any Bank and all other written
information heretofore or hereafter furnished by such Debtor to the
Administrative Agent or any Bank in connection with the Credit Agreement will be
true and correct in all material respects as of the date furnished; (iv) such
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Debtor's true legal name as registered in the jurisdiction in which such Debtor
is organized or incorporated, jurisdiction of organization or incorporation,
federal employer identification number, organizational identification number, if
any, as designated by the state of its organization or incorporation, chief
executive office and principal place of business are as set forth on SCHEDULE I
hereto; (v) each other location where such Debtor maintains a place of business
or has any Goods is set forth on SCHEDULE II hereto; (vi) except as disclosed on
SCHEDULE III, such Debtor is not now known and during the five years preceding
the date hereof has not previously been known by any trade name; (vii) except as
disclosed on SCHEDULE III, during the five years preceding the date hereof such
Debtor has not been known by any legal name different from the one set forth on
the signature page of this Agreement nor has such Debtor been the subject of any
merger or other corporate reorganization; and (viii) SCHEDULE IV hereto contains
a complete listing of all of such Debtor's Intellectual Property which has been
registered under any registration statute.
4. COLLECTIONS, ETC. Until such time during the existence of a Default
as the Administrative Agent shall notify such Debtor of the revocation of such
power and authority, each Debtor (a) may, in the ordinary course of its
business, at its own expense, sell, lease or furnish under contracts of service
any of the Inventory normally held by such Debtor for such purpose, use and
consume, in the ordinary course of its business, any raw materials, work in
process or materials normally held by such Debtor for such purpose, and use, in
the ordinary course of its business (but subject to the terms of the Credit
Agreement), the cash proceeds of Collateral and other money which constitutes
Collateral, (b) will, at its own expense, endeavor to collect, as and when due,
all amounts due under any of the Non-Tangible Collateral, including the taking
of such action with respect to such collection as the Administrative Agent may
reasonably request or, in the absence of such request, as such Debtor may deem
advisable, and (c) may grant, in the ordinary course of business, to any party
obligated on any of the Non-Tangible Collateral, any rebate, refund or allowance
to which such party may be lawfully entitled, and may accept, in connection
therewith, the return of Goods, the sale or lease of which shall have given rise
to such Non-Tangible Collateral. The Administrative Agent, however, may, at any
time that a Default exists, whether before or after any revocation of such power
and authority or the maturity of any of the Liabilities, notify any parties
obligated on any of the Non-Tangible Collateral to make payment to the
Administrative Agent of any amounts due or to become due thereunder and enforce
collection of any of the Non-Tangible Collateral by suit or otherwise and
surrender, release or exchange all or any part thereof, or compromise or extend
or renew for any period (whether or not longer than the original period) any
indebtedness thereunder or evidenced thereby. Upon request of the Administrative
Agent during the existence of a Default, each Debtor will, at its own expense,
notify any parties obligated on any of the Non-Tangible Collateral to make
payment to the Administrative Agent of any amounts due or to become due
thereunder.
Not later than 30 days after the Closing Date the Debtors shall
establish, and thereafter so long as this Agreement is in effect the Debtors
shall maintain, a lock-box service for collection of Accounts, all pursuant to
documentation reasonably acceptable to the Administrative Agent. The Debtors
shall instruct all Account Debtors to make all payments directly to the address
or addresses established for such service. If, notwithstanding such
instructions, any Debtor receives any payment on any Account, or if any Debtor
receives any other payment constituting proceeds of Collateral, it shall receive
such payment as the Administrative Agent's trustee and shall promptly deliver
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such payment to the Administrative Agent in its original form, duly endorsed in
blank, or deposit such payment into the Concentration Account or a Blocked
Account (each as defined below). Each Debtor agrees that, at any time a Default
exists, the Administrative Agent shall have access to any post office box
established pursuant to this paragraph (and each Debtor agrees to execute and
deliver to the Administrative Agent such documents as the Administrative Agent
shall reasonably request to obtain such access).
All cash, checks and other proceeds of Collateral, whether received in
a lockbox, received directly by any Debtor, received directly by the
Administrative Agent or otherwise, shall promptly be deposited into (a) an
account (the "CONCENTRATION ACCOUNT") established for the account of the Debtors
(in the name of the Administrative Agent or the Debtors, at the option of the
Administrative Agent) with the Administrative Agent or (b) one or more accounts
(each a "BLOCKED ACCOUNT") with other financial institutions which are in each
case subject to a Blocked Account Agreement. All amounts on deposit in any
Blocked Account shall (subject to customary restrictions imposed by the
financial institution which maintains such Blocked Account) be transferred at
the end of each Business Day into the Concentration Account to be applied as set
forth herein. No Debtor shall maintain any Deposit Account or deposit any item
or amount in any Deposit Account, except (i) Deposit Accounts maintained with
the Administrative Agent and (ii) Blocked Accounts.
All funds in the Concentration Account and any Blocked Account shall be
subject to the Administrative Agent's sole control, and no Debtor shall have any
right to withdraw any such funds. Each Debtor authorizes the Administrative
Agent to, and the Administrative Agent will on each Business Day, subject to the
terms of the Credit Agreement, apply any amount in the Concentration Account
against the Liabilities, whether or not then due, in accordance with the Credit
Agreement. Notwithstanding any such application, no funds which are proceeds of
any check, draft or other instrument, or of any transfer of funds, shall
constitute final payment of any Liabilities unless and until such item of
payment or such transfer has actually been collected.
5. CERTIFICATES, SCHEDULES AND REPORTS. Each Debtor will from time to
time deliver to the Administrative Agent such schedules, certificates and
reports respecting all or any of the Collateral at the time subject to the
security interest hereunder, and the items or amounts received by such Debtor in
full or partial payment of any of the Collateral, as the Administrative Agent
may reasonably request. Any such schedule, certificate or report shall be
executed by a duly authorized officer of such Debtor and shall be in such form
and detail as the Administrative Agent may specify. Each Debtor shall
immediately notify the Administrative Agent of the occurrence of any event
causing any loss or depreciation in the value of its Inventory or other Goods
which is material to the Company and its Subsidiaries taken as a whole, and such
notice shall specify the amount of such loss or depreciation.
6. AGREEMENTS OF THE DEBTORS. Each Debtor (a) will, upon request of the
Administrative Agent, execute such financing statements and other documents (and
pay the cost of filing or recording the same in all public offices reasonably
deemed appropriate by the Administrative Agent) and do such other acts and
things (including, without limitation, delivery to the Administrative Agent of
any Instruments or Certificated Securities which constitute Collateral), all as
the Administrative Agent may from time to time reasonably request, to establish
and maintain a valid security interest in the Collateral (free of all other
liens, claims and rights of third parties whatsoever, other than Permitted
Liens) to secure the payment of the Liabilities (and each Debtor hereby
authorizes the Administrative Agent to file any financing statement without its
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signature, to the extent permitted by applicable law, and/or to file a copy of
this Agreement as a financing statement in any jurisdiction); (b) will keep all
its Inventory at, and will not maintain any place of business at any location
other than, its address(es) shown on SCHEDULES I and II hereto or at such other
addresses of which such Debtor shall have given the Administrative Agent not
less than 10 days' prior written notice; (c) will not change its state of
organization or incorporation or its name, identity or corporate structure such
that any financing statement filed to perfect the Administrative Agent's
interests under this Agreement would become seriously misleading, unless such
Debtor shall have given the Administrative Agent not less than 30 days' prior
notice of such change (provided that this SECTION 6(C) shall not be deemed to
authorize any change or transaction prohibited under the Credit Agreement); (d)
will keep its records concerning the Non-Tangible Collateral in such a manner as
will enable the Administrative Agent or its designees to determine at any time
the status of the Non-Tangible Collateral; (e) will furnish the Administrative
Agent such information concerning such Debtor, the Collateral and the Account
Debtors as the Administrative Agent may from time to time reasonably request;
(f) will permit the Administrative Agent and its designees, from time to time,
on reasonable notice and at reasonable times and intervals during normal
business hours (or at any time without notice during the existence of a Default)
to inspect such Debtor's Inventory and other Goods, and to inspect, audit and
make copies of and extracts from all records and all other papers in the
possession of such Debtor pertaining to the Collateral and the Account Debtors,
and will, upon request of the Administrative Agent during the existence of a
Default, deliver to the Administrative Agent all of such records and papers; (g)
will, upon request of the Administrative Agent, stamp on its records concerning
the Collateral and add on all Chattel Paper constituting a portion of the
Collateral, a notation, in form satisfactory to the Administrative Agent, of the
security interest of the Administrative Agent hereunder; (h) except as permitted
by the Credit Agreement, will not sell, lease, assign or create or permit to
exist any lien on or security interest in any Collateral other than Permitted
Liens and liens and security interests in favor of the Administrative Agent; (i)
will at all times keep all its Inventory and other Goods insured under policies
maintained with reputable, financially sound insurance companies against loss,
damage, theft and other risks to such extent as is customarily maintained by
companies similarly situated, and cause all such policies to provide that loss
thereunder shall be payable to the Administrative Agent as its interest may
appear (it being understood that (A) so long as no Default shall be existing,
the Administrative Agent shall deliver any proceeds of such insurance which may
be received by it to such Debtor and (B) whenever a Default shall be existing,
the Administrative Agent may apply any proceeds of such insurance which may be
received by it toward payment of the Liabilities, whether or not due, in such
order of application as the Administrative Agent may determine) and such
policies or certificates thereof shall, if the Administrative Agent so requests,
be deposited with or furnished to the Administrative Agent; (j) will take such
actions as are reasonably necessary to keep its Inventory in good repair and
condition, ordinary wear and tear excepted; (k) will take such actions as are
reasonably necessary to keep its Equipment (other than obsolete Equipment) in
good repair and condition and in good working or running order, ordinary wear
and tear excepted; (l) will promptly pay when due all license fees, registration
fees, taxes, assessments and other charges which may be levied upon or assessed
against the ownership, operation, possession, maintenance or use of its
Equipment and other Goods (as applicable); PROVIDED that such Debtor shall not
be required to pay any such fee, tax, assessment or other charge if the validity
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thereof is being contested by such Debtor in good faith by appropriate
proceedings, so long as forfeiture of any substantial part of its Equipment or
other Goods will not result from the failure of such Debtor to pay any such fee,
tax, assessment or other charge during the period of such contest; (m) will,
upon request of the Administrative Agent, (i) cause to be noted on the
applicable certificate, in the event any of its Equipment is covered by a
certificate of title, the security interest of the Administrative Agent in the
Equipment covered thereby and (ii) deliver all such certificates to the
Administrative Agent or its designees; (n) will take all steps reasonably
necessary to protect, preserve and maintain all of its rights in the Collateral;
(o) will keep all of the tangible Collateral, Deposit Accounts and Investment
Property in the continental United States; (p) will, promptly upon any officer
of such Debtor obtaining knowledge that such Debtor has acquired a commercial
tort claim (as defined in Section 9-102 of the UCC), notify the Administrative
Agent in a writing signed by such Debtor of the details of such commercial tort
claim and grant to the Administrative Agent in such writing a security interest
therein and in the proceeds thereof, with such writing to be in form and
substance reasonably satisfactory to the Administrative Agent; and (q) will
reimburse the Administrative Agent for all expenses, including reasonable
attorneys' fees and legal expenses, incurred by the Administrative Agent in
seeking to collect or enforce any rights in respect of such Debtor's Collateral.
Any expenses incurred in protecting, preserving and maintaining any
Collateral shall be borne by the applicable Debtor. Whenever a Default shall be
existing, the Administrative Agent shall have the right to bring suit to enforce
any or all of the Intellectual Property or licenses thereunder, in which event
the applicable Debtor shall at the request of the Administrative Agent do any
and all lawful acts and execute any and all proper documents required by the
Administrative Agent in aid of such enforcement and such Debtor shall promptly,
upon demand, reimburse and indemnify the Administrative Agent for all reasonable
costs and expenses incurred by the Administrative Agent in the exercise of its
rights under this SECTION 6, except to the extent any of the foregoing result
from the gross negligence or willful misconduct of the Administrative Agent.
Notwithstanding the foregoing, the Administrative Agent shall have no
obligations or liabilities regarding the Collateral or any thereof by reason of,
or arising out of, this Agreement.
7. DEFAULT. (a) Whenever a Default shall be existing, the
Administrative Agent may exercise from time to time any rights and remedies
available to it under the UCC, under any other applicable law and in the
subsections set forth below in this SECTION 7.
(b) Each Debtor agrees, in case of Default, (i) to assemble, at its
expense, all its Inventory and other Goods (other than Fixtures) at a convenient
place or places acceptable to the Administrative Agent, and (ii) at the
Administrative Agent's request, to execute all such documents and do all such
other things which may be necessary or desirable in order to enable the
Administrative Agent or its nominee to be registered as owner of the
Intellectual Property with any competent registration authority.
(c) Notice of the intended disposition of any Collateral may be given
by first-class mail, hand-delivery (through a delivery service or otherwise),
facsimile or E-mail, and shall be deemed to have been "sent" upon deposit in the
United States mail with adequate postage properly affixed, upon delivery to an
express delivery service or upon the electronic submission through telephonic
services, as applicable. Each Debtor hereby agrees and acknowledges that (i)
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with respect to Collateral that is: (A) perishable or threatens to decline
speedily in value or (B) is of a type customarily sold on a recognized market
(including Investment Property), no notice of disposition need be given; and
(ii) with respect to Collateral not described in CLAUSE (I) above, notification
sent after default and ten days before any proposed disposition provides notice
with a reasonable time before disposition.
(d) Each Debtor hereby agrees and acknowledges that a commercially
reasonable disposition of Inventory, Equipment, Computer Hardware and Software
or Intellectual Property may be by lease or license of, in addition to the sale
of, such Collateral. Each Debtor further agrees and acknowledges that a
disposition (i) made in the usual manner on any recognized market, (ii) at the
price current in any recognized market at the time of disposition or (iii) in
conformity with reasonable commercial practices among dealers in the type of
property subject to the disposition shall, in each case, be deemed commercially
reasonable.
(e) Any cash proceeds of any disposition by the Administrative Agent of
any of the Collateral shall be applied by the Administrative Agent to payment of
expenses in connection with the Collateral, including reasonable attorneys' fees
and legal expenses, and thereafter to the payment of any and all of the
Liabilities in such order of application as the Administrative Agent may from
time to time elect, and thereafter any surplus will be paid to the applicable
Debtor or as a court of competent jurisdiction shall direct. The Administrative
Agent need not apply or pay over for application noncash proceeds of collection
and enforcement unless (i) the failure to do so would be commercially
unreasonable and (ii) the applicable Debtor has provided the Administrative
Agent with a written demand to apply or pay over such noncash proceeds on such
basis.
8. GENERAL. The Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral in its
possession if it takes such action for that purpose as any applicable Debtor
requests in writing, but failure of the Administrative Agent to comply with any
such request shall not of itself be deemed a failure to exercise reasonable
care, and no failure of the Administrative Agent to preserve or protect any
rights with respect to such Collateral against prior parties, or to do any act
with respect to the preservation of such Collateral not so requested by any
Debtor, shall be deemed a failure to exercise reasonable care in the custody or
preservation of such Collateral.
All notices and requests hereunder shall be in writing (including
facsimile transmission) and shall be sent (i) if to the Administrative Agent, to
its address shown on Schedule 14.3 to the Credit Agreement or such other address
as it may, by written notice to the Company, have designated as its address for
such purpose, and (ii) if to any Debtor, to its address shown on SCHEDULE I
hereto or to such other address as such Debtor may, by written notice to the
Administrative Agent, have designated as its address for such purpose. Notices
sent by facsimile transmission shall be deemed to have been given when sent;
notices sent by mail shall be deemed to have been given five Business Days after
the date when sent by registered or certified mail, postage prepaid; and notices
sent by hand delivery or overnight courier shall be deemed to have been given
when received.
Each of the Debtors agrees to pay all expenses (including reasonable
attorneys' fees and legal expenses) paid or incurred by the Administrative Agent
or any Bank in endeavoring to collect the Liabilities of such Debtor, or any
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part thereof, and in enforcing this Agreement against such Debtor, and such
obligations will themselves be Liabilities.
No delay on the part of the Administrative Agent in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Administrative Agent of any right or remedy shall preclude other
or further exercise thereof or the exercise of any other right or remedy.
This Security Agreement shall remain in full force and effect until all
Liabilities have been paid in full and all Commitments have terminated. If at
any time all or any part of any payment theretofore applied by the
Administrative Agent or any Bank to any of the Liabilities is or must be
rescinded or returned by the Administrative Agent or such Bank for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of any Debtor), such Liabilities shall, for the purposes of this
Agreement, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence, notwithstanding such application by
the Administrative Agent or such Bank, and this Agreement shall continue to be
effective or be reinstated, as the case may be, as to such Liabilities, all as
though such application by the Administrative Agent or such Bank had not been
made.
This Agreement shall be construed in accordance with and governed by
the laws of the State of Illinois applicable to contracts made and to be
performed entirely within the State of Illinois (except to the extent that,
pursuant to Illinois law, the perfection, the effect of perfection or
nonperfection or the priority of any security interest granted hereunder may be
determined in accordance with the laws of a different jurisdiction). Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
The rights and privileges of the Administrative Agent hereunder shall
inure to the benefit of its successors and assigns.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same Agreement. At any time after the date of this
Agreement, one or more additional Persons may become parties hereto by executing
and delivering to the Administrative Agent a counterpart of this Agreement
(including supplements to the Schedules hereto). Immediately upon such execution
and delivery (and without any further action), each such additional Person will
become a party to, and will be bound by all the terms of, this Agreement.
This Agreement amends and restates the Security Agreement dated as of
June 30, 2000 among the Administrative Agent, the other original signatories
hereto and various other parties. Nothing contained in this Agreement shall be
construed to release, cancel, terminate or otherwise adversely affect all or any
part of any lien, claim, right or security interest heretofore granted to or
retained by the Administrative Agent with respect to any Collateral heretofore
or hereafter acquired by a Debtor.
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ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH DEBTOR HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH DEBTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, TO THE ADDRESS OF ITS CHIEF EXECUTIVE OFFICE SET FORTH ON SCHEDULE I
HERETO (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE
ADMINISTRATIVE AGENT AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH DEBTOR HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF EACH DEBTOR, THE ADMINISTRATIVE AGENT AND (BY ACCEPTING THE
BENEFITS HEREOF) EACH BANK HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-11-
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first above written.
U.S. PLASTIC LUMBER CORP.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------------
Title:
------------------------------------------
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Xxxxxxxx Xxxx
---------------------------------------------
Name: Xxxxxxxx Xxxx
-------------------------------------------
Title:
------------------------------------------
U.S. PLASTIC LUMBER LTD.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------------
Title:
------------------------------------------
U.S. PLASTIC LUMBER FINANCE CORP.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------------
Title:
------------------------------------------
-00-
XXX XXXXXXXXXX GROUP, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------------
Title:
------------------------------------------
U.S. PLASTIC LUMBER IP CORP.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------------
Title:
------------------------------------------
-13-
