FOREIGN FACILITY GUARANTEE AND COLLATERAL AGREEMENT made by CEQUENT PERFORMANCE PRODUCTS, INC. and certain of its Subsidiaries in favor of BANK OF AMERICA, N.A., as Agent Dated as of December 22, 2015 FOREIGN FACILITY GUARANTEE AND COLLATERAL AGREEMENT
Exhibit 10.2
FOREIGN FACILITY GUARANTEE AND COLLATERAL AGREEMENT
made by
CEQUENT PERFORMANCE PRODUCTS, INC.
and certain of its Subsidiaries
in favor of
BANK OF AMERICA, N.A.,
as Agent
Dated as of December 22, 2015
FOREIGN FACILITY GUARANTEE AND COLLATERAL AGREEMENT
THIS FOREIGN FACILITY GUARANTEE AND COLLATERAL AGREEMENT (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of December 22, 2015 by and among, CEQUENT PERFORMANCE PRODUCTS, INC., a Delaware corporation (“Cequent Performance”), HORIZON INTERNATIONAL HOLDINGS LLC, a Delaware limited liability company (“International Holdings”), CEQUENT UK LIMITED, a company incorporated in England and Wales with company number 08081641 (“UK Borrower”), CEQUENT TOWING PRODUCTS OF CANADA LTD., a company formed under the laws of the Province of Ontario (“Canadian Borrower”), CEQUENT NEDERLAND HOLDINGS B.V., a company formed under the laws of the Netherlands (“Netherland Holdings”), CEQUENT MEXICO HOLDINGS B.V., a company formed under the laws of the Netherlands (“Mexico Holdings”), CEQUENT SALES COMPANY DE MEXICO, S. DE X.X. DE C.V., a limited liability company formed under the laws of Mexico (“Cequent Sales Mexico”), CEQUENT TRAILER PRODUCTS, S. DE X.X. DE C.V., a limited liability company formed under the laws of Mexico (“Cequent Trailer Mexico”), CEQUENT ELECTRICAL PRODUCTS DE MEXICO, S. DE X.X. DE C.V., a limited liability company formed under the laws of Mexico (“Cequent Electrical Mexico” and together with Cequent Performance, International Holdings, UK Borrower, Canadian Borrower, Netherland Holdings, Mexico Holdings, Cequent Sales Mexico, Cequent Trailer Mexico, and the other Subsidiaries of the Parent Borrower (as defined below) party hereto from time to time, collectively, the “Grantors”, and each individually, a “Grantor”), and BANK OF AMERICA, N.A., a national banking association (“Agent”), as agent for the Foreign Facility Secured Parties.
ARTICLE I
“Account Control Agreement” means a Deposit Account Control Agreement or a Securities Account Control Agreement.
“Account Debtor” shall mean any person who is or who may become obligated to any Grantor under, with respect to or on account of an Account, Chattel Paper or General Intangible.
“Accounts” has the meaning set forth in the PPSA or Article 9 of the UCC, as applicable, and in any event shall include all rights to payment for goods sold or leased, or for services rendered, whether or not they have been earned by performance.
“Article” means a numbered article of this Agreement, unless another document is specifically referenced.
“Borrowers” means, collectively, the Parent Borrower, Cequent Performance, Cequent Consumer, the Canadian Borrower, the UK Borrower, and each other Person party to the Credit Agreement as a “Borrower” from time to time.
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“Civil Code” the Civil Code of Québec, or any successor statute, as amended from time to time, and includes all regulations thereunder.
“Collateral” has the meaning set forth in Article III.
“Collateral Deposit Account” means each Deposit Account of a Grantor other than an Excluded Account.
“Control” has the meaning set forth in the PPSA, the STA, Article 8 or Section 9-102(b) of Article 9 or, if applicable, shall mean satisfaction of the requirements set forth in Section 9-104, 9-105, 9-106 or 9-107 of Article 9 of the UCC.
“Control Agreement Deadline” has the meaning set forth in Section 8.1(a).
“Copyrights” means, with respect to any Person, all of such Person’s right, title, and interest in and to the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright, copyright registrations, and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past or future infringements for any of the foregoing; (d) the right to xxx for past, present, and future infringements of any of the foregoing; and (e) all rights corresponding to any of the foregoing throughout the world.
“Credit Agreement” means that certain Amended and Restated Loan Agreement, dated as of December 22, 2015, by and among the Borrowers, the other Obligors party thereto from time to time, the financial institutions party thereto from time to time as Lenders and the Agent, as amended, restated, supplemented, refinanced or otherwise modified from time to time.
“Deposit Account Control Agreement” means with respect to a Deposit Account established by an Obligor (or a Deposit Account of an Obligor in existence as of the Closing Date), an agreement, in form and substance reasonably satisfactory to the Agent, establishing Control of such Deposit Account by the Agent or a Security Trustee to perfect Agent’s or such Security Trustee’s Lien on such Deposit Account and whereby the bank maintaining such Deposit Account agrees to comply only with the instructions originated by the Agent or such Security Trustee, without the further consent of any Obligor, upon the delivery of a notice of sole control by the Agent or such Security Trustee.
“Deposit Account” means (a) any “deposit account” as such term is defined in Article 9 of the UCC and in any event shall include all accounts and sub-accounts relating to any of the foregoing and (b) with respect to any such Deposit Account located outside of the U.S., any bank account with a deposit function.
“Document” as defined in the UCC (and/or with respect to any Document of a Canadian Domiciled Obligor, a “document of title” as defined in the PPSA) or any other Applicable Law, as applicable.
“Excluded Contract” means any contract or agreement to which a Grantor is a party or any governmental permit held by a Grantor to the extent that (a) the terms of such contract, agreement or permit prohibit or restrict the creation, incurrence or existence of the security interest granted hereunder therein or the assignment thereof without the consent of any party thereto other than the Obligors or any Subsidiary of any Obligor and (b) such prohibition or restriction is permitted under Section 10.2.10 of the Credit Agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC, pursuant to the PPSA, pursuant to the Civil
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Code or pursuant to any other Applicable Law or principles of equity); provided that (i) the term “Excluded Contract” shall not include any rights for any amounts due or to become due pursuant to any Excluded Contract and (ii) the Liens in favor of the Foreign Facility Secured Parties shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement in which the creation, incurrence or existence of the security interest granted hereunder, or the assignment thereof, as the case may be, is not so prohibited or restricted; provided, further, that such Grantor shall use commercially reasonable efforts to obtain all consents or waivers necessary to permit the grant of Liens in favor of the Foreign Facility Secured Parties in such Excluded Contract.
“Excluded Property” means (a) any asset, including, without limitation, Accounts and proceeds of Inventory, of any kind, to the extent that (i) such asset is sold pursuant to any Specified Vendor Receivables Financing and in accordance with the applicable Specified Vendor Receivables Financing Documents and (ii) such sale or intended sale is permitted by Section 10.2.5(c)(ii) of the Credit Agreement, (b) any asset acquired, constructed or improved pursuant to a capital lease or purchase money indebtedness permitted by Section 10.2.1(a)(viii) of the Credit Agreement, (c) Excluded Contracts, (d) any Trademark applications and/or registrations with the Mexican Trademark Office by a Grantor (other than a Mexican Domiciled Obligor) filed in the United States Patent and Trademark Office in each case on the basis of such Grantor’s “intent-to-use” such trademark solely to the extent that, and solely during the period in which, granting a security interest in such Trademark application prior to such filing would adversely affect the enforceability or validity or result in the voiding thereof, unless and until acceptable evidence of use of the Trademark has been filed with and accepted by the United States Patent and Trademark Office pursuant to Section 1(c) or Section 1(d) of the Xxxxxx Act (15 U.S.C. 1051, et seq.), whereupon such trademark application will, without any further action taken on the part of such Grantor or the Agent, be deemed to constitute Collateral, (e) any property or assets for which the creation or perfection of pledges of, or security interests in, pursuant to the Security Documents would result in material adverse tax consequences (whether under Section 956 of the Code or otherwise) to any Obligor or a Subsidiary of an Obligor, as reasonably determined by the Borrowers in consultation with the Agent, (f) assets in circumstances where the cost of obtaining a security interest in such assets, including, without limitation, the cost of title insurance, surveys or flood insurance (if necessary) would be excessive in light of the practical benefit to the Foreign Facility Secured Parties afforded thereby as reasonably determined by the Borrowers and the Agent, (g) any asset subject to a purchase money security interest, capital lease obligations or similar arrangement, in each case, to the extent the grant of a security interest therein would violate or invalidate such purchase money or similar arrangement or create a right of termination in favor of any other party thereto after giving effect to the applicable anti-assignment provisions of the New York UCC, the PPSA, the Civil Code or other Applicable Law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the New York UCC or other Applicable Law notwithstanding such prohibition, (h) any property of a Person existing at the time such Person is acquired, merged or amalgamated with or into or consolidated with any Obligor that is subject to a Lien permitted by Section 10.2.2(e) of the Credit Agreement to the extent and for so long as the contract or other agreement in which such Lien is granted validly prohibits the creation of any other Lien on such property, (i) Excluded Trust Accounts, (j) Equity Interests in any non-wholly owned Subsidiaries, but only to the extent that (i) the organizational documents or other agreements with equity holders of such non-wholly owned Subsidiaries do not permit or restrict the pledge of such Equity Interests, or (ii) the pledge of such Equity Interests (including any exercise of remedies) would result in a change of control, repurchase obligation or other adverse consequence to any of the Obligors or such Subsidiary, (k) with respect to U.S. Obligors party to this Agreement, and for purposes of this Agreement only, the U.S. Obligor Excluded Property, (l) with respect to the Netherland Holdcos, the Netherland Holdco Excluded Property, and (m) Equity Interests in any Subsidiary that is not a Subsidiary Obligor.
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“Exhibit” refers to a specific exhibit to this Agreement, unless another document is specifically referenced.
“Fixtures” has the meaning set forth in Article 9 of the UCC or in any other Applicable Law, as applicable.
“General Intangibles” as defined in the UCC (and/or with respect to any General Intangible of a Canadian Domiciled Obligor, an “intangible” as defined in the PPSA) or any other Applicable Law, as applicable.
“Guarantor Obligations” means with respect to any Guarantor, all obligations and liabilities of such Guarantor which may arise under or in connection with this Agreement (including, without limitation, Article II), 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 Foreign Facility Secured Parties that are required to be paid by such Guarantor pursuant to the terms of this Agreement); provided, that Guarantor Obligations of a Guarantor shall not include its Excluded Swap Obligations; provided, further, that, for purposes of this Agreement, Guarantor Obligations of a Guarantor shall be limited to the Foreign Facility Obligations.
“Guarantors” means the Grantors; provided that, with respect to the Guarantor Obligations under this Agreement, each Grantor shall be considered a Guarantor only with respect to the Primary Obligations of any other Obligor, provided, further, that, with respect to the Guarantor Obligations under this Agreement, each Grantor that is a Foreign Obligor shall be considered a Guarantor only with respect to the Primary Obligations of any other Foreign Obligor.
“Intellectual Property” means 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, misappropriation or violation thereof, including the right to receive all proceeds and damages therefrom.
“Inventory” as defined in the UCC, the PPSA or any other Applicable Law, including all goods intended for sale, lease, display or demonstration; all work in process; and all raw materials, and other materials and supplies of any kind that are or could be used in connection with the manufacture, printing, packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or consumed in an Obligor’s business (but excluding Equipment).
“Letter-of-Credit Rights” has the meaning set forth in Article 9 of the UCC or in any other Applicable Law, as applicable, and in any event shall mean a right to payment or performance under a letter of credit, whether or not the beneficiary has demanded or is at the time entitled to demand payment of performance.
“Licenses” means, with respect to any Person, all of such Person’s right, title, and interest in and to (a) any and all licensing agreements or similar arrangements in and to its Patents, Copyrights, or Trademarks, (b) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future breaches thereof, and (c) all rights to xxx for past, present, and future breaches thereof.
“Lock Boxes” has the meaning set forth in Section 8.1(a).
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“Lock Box Agreements” has the meaning set forth in Section 8.1(a).
“Netherland Holdco Excluded Property” means, for purposes of this Agreement, with respect to each Netherland Holdco, all property and assets of such Netherland Holdco other than (a) the right, title and interest of such Netherland Holdco in, to and under Pledged Collateral consisting of Equity Interests and Securities Accounts containing such Pledged Collateral, whether now owned by or owing to, or hereafter acquired by or arising in favor of such Netherland Holdco (including under any trade name or derivation thereof), regardless of where located; (b) all accessions to, substitutions for and replacements, proceeds (including Stock Rights), insurance proceeds and products of the property and assets described in clauses (a) and (b), together with any General Intangibles at any time evidencing or relating to any of the foregoing; and (c) to the extent not otherwise included in the property and assets described in the foregoing clauses (a) and (b), all Proceeds, Supporting Obligations and products of any and all of the property and assets described in clauses (a), (b) and (c), and all collateral security and guarantees given by any Person with respect to any of the property and assets described in clauses (a), (b) and (c).
“Netherland Holdcos” means Cequent Nederland Holdings B.V., a company formed under the laws of the Netherlands, and Cequent Mexico Holdings B.V., a company formed under the laws of the Netherlands.
“Obligations” means, with respect to any Grantor, the collective reference to its Primary Obligations and its Guarantor Obligations; provided, that Obligations of a Grantor shall not include its Excluded Swap Obligations; provided, further, that, for purposes of this Agreement, Obligations shall be limited to the Foreign Facility Obligations.
“Parent Borrower” has the meaning set forth in the Preliminary Statement.
“Patents” means, with respect to any Person, all of such Person’s right, title, and interest in and to: (a) any and all patents and patent applications; (b) all inventions and improvements described and claimed therein; (c) all reissues, divisionals, continuations, renewals and continuations-in-part thereof; (d) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future infringements thereof; (e) all rights to xxx for past, present, and future infringements thereof; and (f) all rights corresponding to any of the foregoing throughout the world.
“Pledged Chattel Paper” means all Chattel Paper, but only to the extent not constituting Excluded Property.
“Pledged Collateral” means all Instruments, Securities and other Investment Property of the Grantors (other than Excluded Property), whether or not physically delivered to the Agent pursuant to this Agreement.
“Pledged Securities” means any promissory notes, stock certificates or other securities now or hereafter included in the Pledged Collateral, including all certificates, instruments or other documents representing or evidencing any Pledged Collateral.
“PPSA” the Personal Property Security Act (Ontario), as amended from time to time, (or any successor statute) and the regulations thereunder; provided, however, if validity, perfection and effect of perfection and non-perfection and opposability of the Agent’s security interest in and Lien on any Canadian Facility Collateral of any Canadian Domiciled Obligor are governed by the personal property security laws of any jurisdiction other than Ontario, PPSA shall mean those personal property security laws (including the Civil Code) in such other jurisdiction for the purposes of the provisions hereof relating to such validity, perfection, and effect of perfection and non-perfection and for the definitions related to such provisions, as from time to time in effect.
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“Primary Obligations” means, with respect to any Obligor, the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to such Obligor, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans, all Secured Bank Product Obligations and all other obligations and liabilities of such Obligor to the Agent or any other Foreign Facility Secured Party, 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, any other Loan Document (other than such Obligor’s Guarantor Obligations under this Agreement) or any other document made, delivered or given in connection herewith or therewith (other than such Obligor’s Guarantor Obligations under this Agreement), whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Agent or to any other Foreign Facility Secured Party that are required to be paid by such Obligor pursuant to the terms of any of the foregoing agreements) or otherwise (including fees and expenses incurred after the maturity of the Loans and fees and expenses incurred after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to such Obligor, whether or not a claim for post-filing or post-petition fees and expenses is allowed in such proceeding); provided, that Primary Obligations of an Obligor shall not include its Excluded Swap Obligations; provided, further, however, that, for purposes of this Agreement, the Primary Obligations of an Obligor shall be limited to the Foreign Facility Obligations.
“Proceeds” means all “proceeds” as such term is defined in Section 9-102(a)(64) of the New York UCC or in any other Applicable Law, as applicable, and, in any event, shall include, without limitation, all dividends or other income from the Investment Property, collections thereon or distributions or payments with respect thereto.
“Receivables” means the Accounts, Chattel Paper, Investment Property, Instruments and any other rights or claims to receive money which are General Intangibles or which are otherwise included as Collateral.
“Receiver” has the meaning set forth in Section 6.1(a)(vi).
“Section” means a numbered section of this Agreement, unless another document is specifically referenced.
“Securities Accounts” all present and future “securities accounts” (as defined in Article 8 of the UCC or the STA, as applicable), including all monies, “uncertificated securities,” “securities entitlements” and other “financial assets” (as defined in Article 8 of the UCC or the STA, as applicable) contained therein.
“Securities Account Control Agreement” means with respect to a Securities Account established by an Obligor (or a Securities Account of an Obligor in existence as of the Closing Date), an agreement, in form and substance reasonably satisfactory to the Agent, establishing Control of such Securities Account by the Agent or a Security Trustee to perfect Agent’s or such Security Trustee’s Lien on such Securities Account and whereby the bank or other financial institution maintaining such Securities Account agrees to comply only with the instructions originated by the Agent or such Security Trustee without the further consent of any Obligor upon the delivery of a notice of sole control by the Agent or such Security Trustee.
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“Securities Intermediary” has the meaning set forth in Article 8 of the UCC or in any other Applicable Law, as applicable.
“Security” has the meaning set forth in Article 8 of the UCC or in any other Applicable Law, as applicable.
“Specified Permitted Liens” means the Liens permitted under Sections 10.2.2(a) and 10.2.2(r) of the Credit Agreement, provided that such Liens on the Collateral securing the obligations of the Obligors under the Term Loan Documents remain subject to the Intercreditor Agreement.
“STA” the Securities Transfer Act, 2006 (Ontario) (or any successor statute), as amended from time to time, and the regulations thereunder.
“Stock Rights” means all dividends, instruments or other distributions and any other right or property which the Grantors shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any Equity Interests constituting Collateral, any right to receive Equity Interests and any right to receive earnings, in which the Grantors now have or hereafter acquire any right, issued by an issuer of such Equity Interests.
“Supporting Obligations” as defined in Article 9 of the UCC, and in any event means a Letter-of-Credit Right or secondary obligation that supports the payment or performance of an Account, Chattel Paper, Document, General Intangible, Instrument or Investment Property, including, but not limited to, securities, Investment Property, bills, notes, lien notes, judgments, chattel mortgages, mortgages, security interests, hypothecs, assignments, guarantees, suretyships, accessories, bills of exchange, negotiable instruments, invoices and all other rights, benefits and documents now or hereafter taken, vested in or held by a Person in respect of or as security for the same and the full benefit and advantage thereof, and all rights of action or claims which a Person now has or may at any time hereafter have against any other Person in respect thereof, including rights in its capacity as seller of any property or assets returned, repossessed or recovered, under an installment or conditional sale or otherwise.
“Term Agent” means the “Term Agent”, as defined in the Intercreditor Agreement.
“Trademarks” means, with respect to any Person, all of such Person’s right, title, and interest in and to the following: (a) all trademarks (including service marks), trade names, trade dress, and trade styles and the registrations and applications for registration thereof and the goodwill of the business symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims, and payments for past and future infringements thereof; (d) all rights to xxx for past, present, and future infringements of the foregoing; and (e) all rights corresponding to any of the foregoing throughout the world.
“UCC” means the Uniform Commercial Code, as in effect from time to time, of the State of New York or of any other state the laws of which are required as a result thereof to be applied in connection with the attachment, perfection or priority of, or remedies with respect to, Agent’s or any Lender’s Lien on any Collateral.
“U.S. Obligor Excluded Property” means, for purposes of this Agreement, with respect to each U.S. Obligor party to this Agreement from time to time, all property and assets of such U.S. Obligor other than (a) the right, title and interest of such U.S. Obligor in, to and under Pledged Collateral consisting of the Equity Interests of Foreign Obligors and Securities Accounts containing such Pledged Collateral, whether now owned by or owing to, or hereafter acquired by or arising in favor of such U.S. Obligor
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(including under any trade name or derivation thereof), regardless of where located; (b) all accessions to, substitutions for and replacements, proceeds (including Stock Rights), insurance proceeds and products of the property and assets described in clauses (a) and (b), together with any General Intangibles at any time evidencing or relating to any of the foregoing; and (c) to the extent not otherwise included in the property and assets described in the foregoing clauses (a) and (b), all Proceeds, Supporting Obligations and products of any and all of the property and assets described in clauses (a), (b) and (c), and all collateral security and guarantees given by any Person with respect to any of the property and assets described in clauses (a), (b) and (c).
“Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even where the right so to vote has been suspended by the happening of such a contingency.
The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.
ARTICLE II
(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 fraudulent conveyances or transfers or the insolvency of debtors (after giving effect to the right of contribution established in Section 2.2).
(c) Each Guarantor agrees that the Primary Obligations of the Foreign Obligors 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 Article II or affecting the rights and remedies of the Agent or any Foreign Facility Secured Party hereunder.
(d) The guarantee contained in this Article II is a continuing guarantee and shall remain in full force and effect until the Full Payment of all the Primary Obligations of the Foreign Obligors (other than contingent obligations for indemnification, expense reimbursement, tax gross-up or yield protection in each case as to which no claim has been asserted or is reasonably expected to be asserted) and the obligations of each Guarantor under the guarantee contained in this Article II, notwithstanding that from time to time during the term of the Credit Agreement the Foreign Obligors may be free from any Primary Obligations.
(e) No payment made by any Borrower, any other Obligor, any of the Guarantors, any other guarantor or any other Person or received or collected by the Agent or any Lender from any Borrower, any other Obligor, 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 Primary 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
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any payment made by such Guarantor in respect of the Primary Obligations of the Foreign Obligors or any payment received or collected from such Guarantor in respect of the Primary Obligations of the Foreign Obligors), remain liable for the Primary Obligations of the Foreign Obligors up to the maximum liability of such Guarantor hereunder until the Full Payment of the Primary Obligations of the Foreign Obligors (other than contingent obligations for indemnification, expense reimbursement, tax gross-up or yield protection in each case as to which no claim has been asserted or is reasonably expected to be asserted).
(f) Each Guarantor agrees with each Foreign Facility Secured Party (and the respective successors, indorsees, transferees and assigns of each such Foreign Facility Secured Party) that if any Primary Obligation guaranteed by such Guarantor is or becomes unenforceable, invalid or illegal, such Guarantor will, as an independent and primary obligation, indemnify that Foreign Facility Secured Party and the respective successors, indorsees, transferees and assigns of such Foreign Facility Secured Party immediately on demand against any cost, loss or liability incurred as a result of a Foreign Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by such Guarantor under any Loan Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Article II if the amount claimed had been recoverable on the basis of a guarantee.
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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 other Foreign Facility Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
2.8 Mexican Domiciled Obligors. Each Mexican Domiciled Obligor hereby expressly acknowledges and agrees that this Agreement is governed by the laws of the State of New York as set forth in Section 9.16 and expressly agrees that any rights and privileges that it might otherwise have under the laws of Mexico shall not be applicable to this Agreement, indemnities and other assurances contained herein or any guarantee granted by such Mexican Domiciled Obligor, on the date hereof or in the future, pursuant to this Agreement. For such purposes, each Mexican Domiciled Obligor hereby unconditionally and irrevocably waives any rights to which it may be entitled (including the rights to excusión, orden, división and subrogación), to the extent applicable, under Articles 2813, 2814, 2815, 2816, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2824, 2826, 2827, 2828, 2830, 2835, 2836, 2837, 2838, 2839, 2840, 2842, 2844, 2846, 2847, 2848 and 2849 of the Federal Civil Code (Código Civil Federal) and the corresponding provisions of the Civil Codes of the States of Mexico and the Federal District of Mexico (or any successor provisions). Each Mexican Domiciled Obligor represents that (a) it is familiar with the contents of the articles referred to above; (b) it will receive valuable direct and indirect benefits as a result of the entering into this Agreement and any other Loan Document to which it is a party; (c) it is solvent pursuant to the terms of the Mexican Bankruptcy Law; (d) it has not been declared in concurso mercantil or bankruptcy (quiebra) or other similar insolvency procedure; and (e) there is no pending and, to the best of its knowledge, threatened action, claim, requirement or proceeding before any court, governmental agency, arbitrator or jurisdictional entity that affects or could affect the legality, validity or enforceability of this Agreement.
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ARTICLE III
Each Grantor hereby pledges, assigns and grants to the Agent, on behalf of and for the benefit of the Foreign Facility Secured Parties, to secure the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations of the Grantors, a security interest in all of its right, title and interest in, to and under all personal property and other assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of such Grantor (including under any trade name or derivations thereof), and whether owned or consigned by or to, or leased from or to, such Grantor, and regardless of where located (all of which will be collectively referred to as the “Collateral”), including:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents (other than title documents with respect to Vehicles);
(e) all Equipment;
(f) all Fixtures;
(g) all General Intangibles;
(h) all Goods;
(i) all Instruments;
(j) all Intellectual Property;
(k) all Inventory;
(l) all Investment Property;
(m) all cash or cash equivalents, including without limitation all Cash Collateral held from time to time, whether held in a Cash Collateral Account or otherwise;
(n) all letters of credit, Letter-of-Credit Rights and Supporting Obligations;
(o) all Commercial Tort Claims;
(p) all accessions to, substitutions for and replacements, proceeds (including Stock Rights), insurance proceeds and products of the foregoing, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any General Intangibles at any time evidencing or relating to any of the foregoing;
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(q) all other property not otherwise described above (except for any property specifically excluded from any clause in this section above, and any property specifically excluded from any defined term used in any clause of this section above);
(r) all books and records pertaining to the Collateral; and
(s) to the extent not otherwise included in the foregoing, all Proceeds, Supporting Obligations 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;
provided, however, that notwithstanding any of the other provisions set forth in this Agreement or the other Loan Documents, (i) no Excluded Property shall constitute Collateral under this Agreement and (ii) no Collateral of a Foreign Obligor shall secure the Obligations of a U.S. Obligor.
Each Grantor acknowledges that (i) value has been given, (ii) it has rights in the Collateral (other than after-acquired collateral), (iii) it has not agreed to postpone the time of attachment of the security interest, and (iv) it has received a copy of this Agreement. In addition, the security interest granted herein does not attach to consumer goods (as defined in the PPSA) or extend to the last day of the term of any lease or agreement for lease of real property.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into the Credit Agreement and to induce the Lenders to make or to continue to make their respective extensions of credit and other financial accommodations to the Borrowers thereunder, each Grantor hereby represents and warrants to the Agent and each Lender that:
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Canadian Intellectual Property Office or any successor office thereof (the “Canadian IP Filing Office”) is necessary to perfect the security interest of the Agent in respect of any Canadian issued and applied for Patents, Canadian federally registered and applied for Trademarks and Canadian registered and applied for Copyrights (the “Canadian IP Filing Collateral”) acquired by such Grantor after the date hereof and (c) with respect to Mexican Domiciled Obligors, that the filing of the corresponding Mexican Asset Pledge (or a fully executed short-form agreement in form and substance reasonably satisfactory to the Agent) with the Mexican Institute of Intellectual Property (Instituto Mexicano de la Propiedad Intelectual) or any successor office thereof (the “Mexican IP Filing Office” and, together with the U.S. IP Filing Offices and the Canadian IP Filing Office, the “IP Filing Offices”) is necessary to perfect the security interest of the Agent in respect of any Mexican issued and applied for Patents, Mexican federally registered and applied for Trademarks and Mexican registered and applied for Copyrights (the “Mexican IP Filing Collateral” and, together with the U.S. IP Filing Collateral and the Canadian IP Filing Collateral, the “IP Filing Collateral”) acquired by such Grantor after the date hereof. When the Agent (or its agent or designee) takes possession or Control of all Collateral with respect to which a security interest may only be perfected by possession or Control, the Agent will have a fully perfected first priority security interest, subject only to Liens permitted under Section 5.1(e), in such Collateral.
Such Grantor represents and warrants that fully executed security agreements in the form hereof (or a fully executed short-form agreement in form and substance reasonably satisfactory to the Agent) and containing a description of all applicable Collateral consisting of IP Filing Collateral have been delivered to the Agent for recording by the applicable IP Filing Offices, with respect to the U.S. IP Filing Collateral pursuant to 35 U.S.C. § 261, 15 U.S.C. § 1060 or 17 U.S.C. § 205 and the regulations thereunder, as applicable, and, with respect to the other IP Filing Collateral, pursuant to Applicable Law, to establish a legal, valid and perfected security interest in favor of the Agent (for the benefit of the Foreign Facility Secured Parties) in respect of all Collateral consisting of IP Filing Collateral. When such security agreements or short-form agreements have been filed in the applicable IP Filing Offices against such Grantor, the Agent will have a fully perfected first priority security interest, subject only to Liens permitted under Section 5.1(e), in respect of all Collateral consisting of IP Filing Collateral, and no further or subsequent filing or recording will be necessary (other than the financing statements referred to in the paragraph above and such actions as are necessary to perfect the security interest in favor of the Agent (for the benefit of the Foreign Facility Secured Parties) with respect to any IP Filing Collateral acquired by such Grantor after the date hereof).
None of the U.S. Obligors shall be required, nor is the Agent authorized, to perfect the security interests granted by this Agreement with respect to Intellectual Property arising out of or located outside of the United States. None of the Foreign Domiciled Obligors shall be required, nor is the Agent authorized, to perfect the security interests granted by this Agreement with respect to Intellectual Property arising out of or located outside of both the United States and the country under the laws of which such Foreign Domiciled Obligor is organized, incorporated or formed.
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4.6 [Reserved.]
4.10 [Reserved.]
(a) Exhibit D sets forth a complete and accurate list of all Pledged Securities (provided that, with respect to Pledged Securities constituting promissory notes and debt securities, Exhibit D only sets forth such Pledged Securities evidencing Debt having an aggregate principal amount in excess of $500,000, payable or due to such Grantor by or from any other Person (including any other Grantor)) owned by such Grantor as of the Closing Date, including without limitation a list of (i) all the issued and outstanding Equity Interests constituting Pledged Collateral owned by such Grantor (other than any Equity Interests maintained in a securities account identified on Schedule 3.03 of the Perfection Certificate delivered on the Closing Date), and an indication of whether such Equity Interests are certificated and (ii) the percentage of the outstanding Equity Interests of each class of each issuer on a fully diluted basis owned by such Grantor. As of the Closing Date, such Grantor is the direct, sole
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beneficial owner and sole holder of record of the Pledged Securities listed on Exhibit D as being owned by it, free and clear of any Liens, except for the security interest granted to the Agent for the benefit of the Foreign Facility Secured Parties hereunder, Permitted Encumbrances and Specified Permitted Liens. Such Grantor further represents and warrants that (i) all Pledged Collateral (solely with respect to Pledged Collateral issued by a Person other than a wholly owned Subsidiary of a Grantor, to the best of the Grantors’ knowledge) owned by it constituting Equity Interests has been (to the extent such concepts are relevant with respect to such Pledged Collateral) duly authorized and validly issued and are fully paid and non-assessable, (ii) with respect to any certificates delivered to the Agent (or its agent or designee) representing Equity Interests, either such certificates are Securities as defined in Article 8 of the UCC (or with respect to the Equity Interests owned by Foreign Obligors, as defined in any other Applicable Law, as applicable) as a result of actions by the issuer or otherwise, or, if such certificates are not Securities, such Grantor has so informed the Agent so that the Agent may take steps to perfect its security interest therein as a General Intangible; (iii) all such Pledged Collateral held by a Securities Intermediary (other than in an Excluded Account) is covered by a control or blocked account agreement among such Grantor, the Securities Intermediary and the Agent pursuant to which the Agent has Control; provided that no such control or blocked account agreements shall be required prior to the applicable Control Agreement Deadline or if, with respect to a Foreign Domiciled Obligor, such requirement is contrary to the Agreed Security Principles and (iv) all Pledged Collateral which represents Debt owed to such Grantor (solely with respect to Pledged Collateral issued by a Person other than a wholly owned Subsidiary of a Grantor, to the best of the Grantors’ knowledge) has been duly authorized, authenticated or issued and delivered by the issuer of such Debt, is the legal, valid and binding obligation of such issuer and such issuer is not in default thereunder.
(b) In addition, (i) the pledge of the Pledged Collateral pursuant to this Agreement does not violate Regulation T, U or X of the Federal Reserve Board, any successor thereto or any other Applicable Law, (ii) to the best of such Grantor’s knowledge, none of the Pledged Collateral owned by it has been issued or transferred in material violation of the securities registration, securities disclosure or similar laws of any jurisdiction to which such issuance or transfer may be subject, (iii) as of the Closing Date there are existing no options, restrictions, warrants, calls or commitments of any character whatsoever (A) relating to such Pledged Collateral or (B) which obligate the issuer of any Equity Interests included in the Pledged Collateral that is a direct or indirect subsidiary of any Borrower to issue additional Equity Interests, and (iv) no consent, approval, authorization, or other action by, and no giving of notice, filing with, any governmental authority or any other Person is required for the pledge by such Grantor of such Pledged Collateral pursuant to this Agreement or for the execution, delivery and performance of this Agreement by such Grantor, or for the exercise by the Agent of the voting or other rights provided for in this Agreement or for the remedies in respect of the Pledged Collateral pursuant to this Agreement, except as may be required in connection with such disposition by laws affecting the offering and sale of securities generally, or where the absence of which could not reasonably be expected to have a Material Adverse Effect.
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ARTICLE V
From the date of this Agreement, and thereafter until this Agreement is terminated, each Grantor agrees that:
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5.3 Inventory and Equipment; Inspection Rights.
(a) [Reserved.]
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reasonable request and option, pursuant to an agreement in form and substance satisfactory to the Agent, either (i) cause the issuer to agree to comply with instructions from the Agent (or its agent or designee) as to such securities, without further consent of any Grantor or such nominee, or (ii) arrange for the Agent (or its agent or designee) to become the registered owner of the securities. Such Grantor further agrees to promptly delivery to the Agent such documents, agreements and other material as may be reasonably necessary or advisable from time to time to provide the Agent with control over such uncertificated Collateral in the manner provided under section 24 of the STA (and, for purposes of section 27(1) of the STA, this Agreement shall constitute each Grantor’s irrevocable consent to entry into an agreement of the kind referred to in clause 24(1)(b) of the STA); provided however, that such consent shall be automatically revoked upon termination of this Agreement as set forth in Section 9.24 of this Agreement.
(a) [Reserved.]
(c) Exercise of Rights in Pledged Collateral.
(i) Without in any way limiting the foregoing and subject to clause (ii) below, such Grantor shall have the right to exercise all voting rights or other rights relating to the Pledged Collateral owned by it for all purposes not inconsistent with this Agreement, the Credit Agreement or any other Loan Document; provided, however, that each Grantor agrees that it shall not exercise any such right for any purpose prohibited by the terms of, or if the result thereof could materially and adversely affect the rights inuring to a holder of the Pledged Collateral or the rights and remedies of any of the Foreign Facility Secured Parties under, this Agreement or the Credit Agreement or any other Loan Document or the ability of the Foreign Facility Secured Parties to exercise the same.
(ii) Such Grantor will permit the Agent or its nominee at any time after the occurrence and during the continuation of an Event of Default, without notice, to exercise all voting rights or other rights relating to the Pledged Collateral owned by it, including, without limitation, exchange, subscription or any other rights, privileges, or options pertaining to any Equity Interests or Investment Property constituting such Pledged Collateral as if it were the absolute owner thereof.
(iii) Unless an Event of Default shall have occurred and be continuing, such Grantor shall be entitled to collect and receive for its own use all cash dividends and interest paid in respect of the Pledged Collateral owned by it to the extent not in violation of the Credit Agreement. 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, the Agent shall have the right to receive all such cash dividends, interest, payments and other Proceeds paid in respect of the Pledged Collateral.
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(a) Such Grantor shall notify the Agent immediately if it knows or has reason to know that any application or registration relating to any material Patent, Trademark or Copyright (now or hereafter existing) may become abandoned or dedicated, or of any adverse determination or development (including the institution of, or any such determination or development in, any proceeding in any IP Filing Office, any governmental office in such Grantor’s country of organization or any court, but excluding routine matters during the course of any prosecution of applications before any IP Filing Office, any successor office thereof or any similar authority) regarding such Grantor’s ownership of any material Patent, Trademark or Copyright, its right to register the same, or to keep and maintain the same.
(b) Whenever such Grantor, either by itself or through any agent, employee, licensee or designee, shall (i) file an application for the registration of any Patent, Trademark or Copyright that constitutes Collateral with any IP Filing Office or any other governmental office in such Grantor’s country of organization or (ii) acquire any Intellectual Property that constitutes Collateral, such Grantor shall report such filing or acquisition to the Agent within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of such Grantor and within 90 days after the end of each Fiscal Year of such Grantor. Promptly after the provision of such reports, such Grantor shall execute and deliver to the Agent, and have recorded with the applicable IP Filing Office or the applicable governmental office in such Grantor’s country of organization, if different, one or more security agreements or short-form agreements, as applicable, as described in Section 4.1 of this Agreement and any and all other agreements, instruments, documents, and papers as the Agent may reasonably request to evidence the Agent’s and the Foreign Facility Secured Parties’ first priority security interest in any Copyright, Patent or Trademark and the goodwill of such Grantor relating thereto or represented thereby, but only to the extent that the same constitute Collateral.
(c) Such Grantor shall take all actions necessary to maintain and pursue each application, to obtain the relevant registration and to maintain the registration of each of its Patents, Trademarks and Copyrights (now or hereafter existing), including the filing of applications for renewal, affidavits of use, affidavits of noncontestability and opposition and interference and cancellation proceedings, unless such Grantor (in its reasonable business judgment) or the Agent shall reasonably determine that such Patent, Trademark or Copyright is in no way material to the conduct of such Grantor’s business.
(d) Such Grantor shall, unless it shall reasonably determine that such Patent, Trademark or Copyright is in no way material to the conduct of its business or operations, promptly xxx for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and shall take such other actions as the Agent shall reasonably deem appropriate under the circumstances to protect such Patent, Trademark or Copyright. In the event that such Grantor institutes suit because any of its Patents, Trademarks or Copyrights constituting Collateral is infringed upon, or misappropriated or diluted by a third party, such Grantor shall comply with Section 5.8.
(e) Notwithstanding the foregoing provisions of this Section 5.7 or elsewhere in this Agreement, nothing in this Agreement shall prevent any Grantor from abandoning or discontinuing the use or maintenance of any Intellectual Property that is immaterial to the conduct of its business, or from failing to take action to enforce license agreements or pursue actions against infringers or take any other actions with respect to such Intellectual Property, if such Grantor determines in its reasonable business judgment that such abandonment, discontinuance, or failure to take action is desirable in the conduct of its business.
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5.10 [Reserved.]
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5.16 Delivery of the Pledged Equity.
(a) Each Grantor agrees promptly to deliver or cause to be delivered to the Agent (or its agent or designee), for the benefit of the Foreign Facility Secured Parties, any and all Pledged Securities; provided that the Grantors shall only be required to deliver Pledged Securities evidencing Debt to the extent the principal amount thereof exceeds $500,000.
(b) Each Grantor will cause any Debt for borrowed money constituting Collateral and having an aggregate principal amount in excess of $500,000 owed to such Grantor by any Person to be evidenced by a duly executed promissory note that is pledged and delivered to the Agent (or its agent or designee), for the benefit of the Foreign Facility Secured Parties, pursuant to the terms hereof.
(c) Upon delivery to the Agent (or its agent or designee), any Pledged Securities shall be accompanied by stock, interest or security powers duly executed in blank or other instruments (including endorsements) of transfer (including stock transfer forms) reasonably satisfactory to the Agent and by such other instruments and documents as the Agent may reasonably request (subject to the Foreign Facility Collateral and Guarantee Requirement). Each delivery of Pledged Securities shall be accompanied by a schedule describing the securities, which schedule shall be deemed to supplement Exhibit D and made a part thereof; provided that failure to supplement Exhibit D shall not affect the validity of such pledge of such Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
(a) Upon the occurrence and during the continuance of an Event of Default, the Agent may exercise any or all of the following rights and remedies:
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(i) those rights and remedies provided in this Agreement (including without limitation pursuant to Section 7.2 hereof), the Credit Agreement, or any other Loan Document; provided that this Section 6.1(a) shall not be understood to limit any rights or remedies available to the Agent and the Foreign Facility Secured Parties prior to an Event of Default;
(ii) those rights and remedies available to a secured party under the UCC (whether or not the UCC applies to the affected Collateral), the PPSA (whether or not the PPSA applies to the affected Collateral) or under any other Applicable Law (including, without limitation, any law governing the exercise of a bank’s right of setoff or bankers’ lien) when a debtor is in default under a security agreement;
(iii) give notice of sole control or any other instruction under any Account Control Agreement or any other control or blocked account agreement with any Securities Intermediary and take any action therein with respect to such Collateral (without limitation of Agent’s rights and remedies during a Dominion Trigger Period);
(iv) without notice (except as specifically provided in Section 9.1 or elsewhere herein), demand or advertisement of any kind to any Grantor or any other Person, enter the premises of any Grantor where any Collateral is located (through self-help and without judicial process) to collect, receive, assemble, process, appropriate, sell, lease, assign, grant an option or options to purchase or otherwise dispose of, deliver, or realize upon, the Collateral or any part thereof in one or more parcels at public or private sale or sales (which sales may be adjourned or continued from time to time with or without notice and may take place at any Grantor’s premises or elsewhere), for cash, on credit or for future delivery without assumption of any credit risk, and upon such other terms as the Agent may deem commercially reasonable;
(v) concurrently with written notice to the applicable Grantor, transfer and register in its name or in the name of its nominee the whole or any part of the Pledged Collateral, exchange certificates or instruments representing or evidencing Pledged Collateral for certificates or instruments of smaller or larger denominations, exercise the voting and all other rights as a holder with respect thereto, collect and receive all cash dividends, interest, principal and other distributions made thereon and otherwise act with respect to the Pledged Collateral as though the Agent was the outright owner thereof; and
(vi) if it so elects, seek the appointment of a receiver, interim receiver, receiver-manager, or a receiver and manager or keeper (each a “Receiver”) to take possession of Collateral and to enforce any of the Agent’s remedies, or may institute proceedings in any court of competent jurisdiction for the appointment of such Receiver and each Grantor hereby consents to such rights and such appointment and waives any objection such Grantor may have thereto or the right to have a bond or other security posted by the Agent. Any such Receiver is hereby given and shall have the same powers and rights and exclusions and limitations of liability as the Agent has under this Agreement, at law or in equity. To the extent permitted by applicable law, any Receiver appointed by the Agent shall (for purposes relating to responsibility for the Receiver’s acts or omissions) be considered to be the agent of any such Grantor and not of the Agent. The Agent may from time to time fix the Receiver’s remuneration and the Grantors shall pay the amount of such remuneration to the Agent. The Agent may appoint one or more Receivers hereunder and may remove any such Receiver or Receivers and appoint another or others in his or their stead from time to time. Any Receiver so appointed may be an officer or employee of the Agent. A court need not appoint, ratify the appointment by the Agent, or otherwise supervise in any manner the actions, of any Receiver. Upon a Grantor receiving notice from the Agent of the taking of possession of the Collateral or the appointment of a Receiver, all powers, functions, rights and privileges of each of the directors and officers of the Grantors with respect to the Collateral shall cease, unless specifically continued by the written consent of the Agent.
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(b) The Agent, on behalf of the Foreign Facility Secured Parties, may comply with any applicable state, provincial or federal law or other Applicable Law requirements in connection with a disposition of the Collateral and compliance will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.
(c) The Agent 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 (including by credit bidding) for the benefit of the Agent and the Foreign Facility Secured Parties, the whole or any part of the Collateral so sold, free of any right of equity redemption, which equity redemption each Grantor hereby expressly releases.
(d) Until the Agent is able to effect a sale, lease, or other disposition of Collateral, the Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Agent. The Agent may, if it so elects, seek the appointment of a receiver, trustee or keeper to take possession of Collateral and to enforce any of the Agent’s remedies (for the benefit of the Agent and Foreign Facility Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment.
(e) [Reserved].
(f) Notwithstanding the foregoing, neither the Agent nor any other Foreign Facility Secured Party shall be required to (i) make any demand upon, or pursue or exhaust any of its rights or remedies against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of its rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof, (ii) marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, or (iii) effect a public sale of any Collateral.
(g) Each Grantor recognizes that the Agent may be unable to effect a public sale of any or all the Pledged Collateral and may be compelled to resort to one or more private sales thereof in accordance with clause (a) above. Each Grantor also acknowledges that any private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private. The Agent shall be under no obligation to delay a sale of any of the Pledged Collateral for the period of time necessary to permit any Grantor or the issuer of the Pledged Collateral to register such securities for public sale under the Securities Act of 1933, as amended, or under applicable state or provincial securities laws, or under other Applicable Law, even if the applicable Grantor and the issuer would agree to do so.
(a) assemble and make available to the Agent the Collateral and all books and records relating thereto at any place or places reasonably specified by the Agent, whether at a Grantor’s premises or elsewhere;
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(b) permit the Agent, by the Agent’s representatives and agents, to enter, occupy and use any premises where all or any part of the Collateral, or the books and records relating thereto, or both, are located, to take possession of all or any part of the Collateral or the books and records relating thereto, or both, to remove all or any part of the Collateral or the books and records relating thereto, or both, and to conduct sales of the Collateral, without any obligation to pay the Grantor for such use and occupancy;
(c) prepare and file, or cause an issuer of Pledged Collateral to prepare and file, with the Securities and Exchange Commission or any other applicable government agency, registration statements, a prospectus and such other documentation in connection with the Pledged Collateral as the Agent may request, all in form and substance satisfactory to the Agent, and furnish to the Agent, or cause an issuer of Pledged Collateral to furnish to the Agent, any information regarding the Pledged Collateral in such detail as the Agent may specify;
(d) take, or cause an issuer of Pledged Collateral to take, any and all actions necessary to register or qualify the Pledged Collateral to enable the Agent to consummate a public sale or other disposition of the Pledged Collateral; and
(e) at its own expense, cause the independent certified public accountants then engaged by each Grantor to prepare and deliver to the Agent, at any time, and from time to time, promptly upon the Agent’s request, the following reports with respect to the applicable Grantor: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) a test verification of such Accounts.
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ARTICLE VII
ACCOUNT VERIFICATION; ATTORNEY IN FACT; PROXY
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Collateral as may be necessary or advisable to give the Agent Control over such Pledged Collateral; (e) apply the proceeds of any Collateral received by the Agent to the Obligations as provided in the Credit Agreement; (f) with prompt notice to the applicable Grantor (unless an Event of Default shall have occurred and be outstanding in which case no notice shall be required), discharge past due taxes, assessments, charges, fees or Liens on the Collateral (except for such Liens that are permitted by the Credit Agreement); (g) with prompt notice to the applicable Grantor (unless an Event of Default shall have occurred and be outstanding in which case no notice shall be required), contact Account Debtors for any reason, including without limitation to notify them of the assignment of their Accounts; (h) with prompt notice to the applicable Grantor (unless an Event of Default shall have occurred and be outstanding in which case no notice shall be required), use a Grantor’s stationary and sign a Grantor’s name on any Chattel Paper, Document, Instrument, invoice, xxxx of lading or other document or agreement relating to the Receivables or other Collateral, drafts against any Account Debtor of a Grantor, assignments and verifications of Receivables and notices to Account Debtors; (i) with prompt notice to the applicable Grantor (unless an Event of Default shall have occurred and be outstanding in which case no notice shall be required), prepare, file and sign a Grantor’s name on a proof of claim in bankruptcy or similar document against any Account Debtor of a Grantor; (j) with prompt notice to the applicable Grantor (unless an Event of Default shall have occurred and be outstanding in which case no notice shall be required), prepare, file and sign a Grantor’s name on any notice of Lien, assignment or satisfaction of Lien or similar document in connection with the Collateral; (k) during an Event of Default, (i) collect, liquidate and receive balances in Deposit Accounts or investment accounts, and take control, in any manner, of proceeds of Collateral, (ii) sell or assign any Receivable and other Collateral upon such terms, for such amounts and at such times as Agent deems advisable, (iii) use information contained in any data processing, electronic or information systems relating to Collateral, (iv) make and adjust claims under insurance policies, (v) demand payment or enforce payment of the Receivables in the name of the Agent or a Grantor, by legal proceedings or otherwise, and endorse any and all checks, drafts, and other instruments for the payment of money relating to the Receivables, and generally exercise any rights and remedies with respect to Accounts, (vi) exercise all of a Grantor’s rights and remedies with respect to the collection of the Receivables and any other Collateral, (vii) settle, adjust, modify, compromise, discharge or release any Receivables or other Collateral, (viii) settle, adjust, modify, compromise, discharge or release any legal proceedings brought to collect Receivables or other Collateral and (ix) change the address for delivery of mail addressed to a Grantor to such address as the Agent may designate and to receive, open and dispose of all mail addressed to a Grantor; and (l) to do all other acts and things necessary to carry out this Agreement; and each Grantor agrees to reimburse the Agent on demand for any payment made or any expense incurred by the Agent in connection with any of the foregoing; provided that (i) this authorization shall not relieve any Grantor of any of its obligations under this Agreement, the Credit Agreement or any other Loan Document and (ii) the Agent shall exercise the foregoing rights with respect to the U.S. Obligors and their assets in or upon which a Lien is granted or purported to be granted to the Term Agent under any of the Term Loan Documents in accordance with the Intercreditor Agreement, if effective. (b) All acts of said attorney or designee are hereby ratified and approved. The powers conferred on the Agent, for the benefit of the Foreign Facility Secured Parties, under this Section 7.2 are solely to protect the Agent’s interests in the Collateral and shall not be construed as requiring or obligating the Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Agent and the other Foreign Facility Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and neither they nor 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.
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ARTICLE VIII
COLLECTION AND APPLICATION OF COLLATERAL PROCEEDS; DEPOSIT ACCOUNTS
(a) On the “Control Agreement Deadline” as defined in the Guarantee and Collateral Agreement, with respect to U.S. Obligors, and on or before the date that is 60 days following the Closing Date or such later date agreed to by the Agent in its reasonable discretion, with respect to Foreign Obligors (collectively, the “Control Agreement Deadline”), each Grantor shall (i) execute and deliver to the Agent a Deposit Account Control Agreement for each Collateral Deposit Account, which Collateral Deposit Accounts as of the Closing Date are identified as such on Exhibit E, and (ii) establish lock box service (the “Lock Boxes”) with banks at which lock boxes are maintained (which banks as of the Closing Date are set forth in Exhibit E), which Lock Boxes shall be subject to irrevocable lockbox agreements (which may be set forth in Deposit Account Control Agreements) in form and substance reasonably acceptable to the Agent and, if applicable, shall be accompanied by an acknowledgment by the bank where the Lock Box is located of the Lien of the Agent granted hereunder and of irrevocable instructions to wire all amounts collected therein to a Dominion Account (a “Lock Box Agreement”).
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(b) Each Grantor shall request in writing and otherwise take all necessary steps to ensure that all payments on Accounts are made directly to a Dominion Account (or a Lock Box relating to a Dominion Account). While a Dominion Trigger Period is in effect, the Agent shall be authorized to exercise exclusive control over any Collateral Deposit Account at all times and no Grantor will be permitted to remove any item from a Lock Box or from a Collateral Deposit Account without the Agent’s prior written consent. The Agent hereby agrees that (A) except as provided in Section 6.1, it will not deliver a notice exercising exclusive control over a Collateral Deposit Account unless a Dominion Trigger Period is in effect and (B) it will deliver a notice rescinding its exclusive control over any Collateral Deposit Account with respect to which it has previously delivered a notice exercising exclusive control if no Dominion Trigger Period is then in effect. If any Grantor should refuse or neglect to notify any Account Debtor to forward payments directly to a Dominion Account (or a Lock Box relating to a Dominion Account), the Agent shall, notwithstanding anything to the contrary set forth herein, be entitled to make such notification directly to such Account Debtor. If notwithstanding the foregoing instructions any Grantor receives cash or Payment Items with respect to any Collateral, it shall hold same in trust for Agent and promptly (not later than the next Business Day) deposit same into a Dominion Account, except as otherwise expressly permitted by the Credit Agreement. The Agent shall hold and apply funds received into Dominion Accounts as provided in the Credit Agreement, including, without limitation, as provided in Sections 5.6 and 8.2 thereof.
(c) Each Foreign Facility Cash Collateral Account and all Cash Collateral with respect to the Foreign Facility Obligations shall be under the sole dominion and control of Agent at all times, whether or not a Dominion Trigger Period is in effect, and no Grantor or other Person shall have any right to any such Cash Collateral, until Full Payment of the Obligations. All such Cash Collateral while held in a Foreign Facility Cash Collateral Account shall continue to be held as collateral security for all the Obligations and shall not constitute payment thereof until applied as provided in the Credit Agreement.
8.2 Covenant Regarding New Deposit Accounts; Lock Boxes.
(a) No Grantor may open a new Lock Box or Collateral Deposit Account after the Closing Date unless the bank or financial institution at which such Grantor seeks to open such Lock Box or Collateral Deposit Account has entered into a Lock Box Agreement or a Deposit Account Control Agreement giving the Agent Control of such Lock Box or Collateral Deposit Account in a manner consistent with the requirements set forth in Section 8.1(a)(i) and (ii); provided that no such agreement will be required to be effective prior to the applicable Control Agreement Deadline. All Controlled Accounts of the UK Domiciled Obligors shall be held in the United States.
(b) If any Grantor opens an additional Lock Box or Collateral Deposit Account with a bank that is already party to a Lock Box Agreement or Deposit Account Control Agreement or such Grantor transfers or otherwise assigns any Lock Box or Collateral Deposit Account subject to an existing Lock Box Agreement or Deposit Account Control Agreement to a different Grantor party to such Lock Box Agreement or Deposit Account Control Agreement, such Grantor or the Borrower Agent shall promptly notify the Agent thereof and shall enter into (and hereby grants the Agent the authority to enter into, on behalf of itself and the applicable Grantor or Grantors) an amendment, supplement or other modification to such Lock Box Agreement or Deposit Account Control Agreement to reflect the addition or change in ownership, as the case may be, of such Lock Box Agreement or Collateral Deposit Account for the purpose of ensuring that such Lock Box Agreement or Collateral Deposit Account is subject to the control arrangement evidenced thereby.
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(c) In the case of Lock Boxes or Collateral Deposit Accounts maintained with any Lender, the terms of each Lock Box Agreement and Deposit Account Control Agreement entered into with such Lender shall be subject to the provisions of the Credit Agreement regarding setoff.
(d) With respect to any Deposit Account or Securities Account opened by any Grantor after the Closing Date, the Grantors shall give Agent written notice of thereof within 30 days (or such longer period agreed to by the Agent) of the opening of such Deposit Account or Securities Account.
ARTICLE IX
9.2 Limitation on Agent’s and Foreign Facility Secured Parties’ Duty with Respect to the Collateral. The Agent shall have no obligation to clean-up or otherwise prepare the Collateral for sale. The Agent and each Foreign Facility Secured Party shall use reasonable care with respect to the Collateral in its possession or under its control. Neither the Agent nor any other Foreign Facility Secured Party shall have any other duty as to any Collateral in its possession or control or in the possession or control of any agent or nominee of the Agent or such Foreign Facility Secured Party, or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. To the extent that Applicable Law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is commercially reasonable for the Agent (i) to fail to incur expenses deemed significant by the Agent to prepare Collateral for disposition or otherwise to transform raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as such Grantor, for expressions of interest in acquiring all or any portion of the Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the
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Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that the purpose of this Section 9.2 is to provide non-exhaustive indications of what actions or omissions by the Agent would be commercially reasonable in the Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 9.2. Without limitation upon the foregoing, nothing contained in this Section 9.2 shall be construed to grant any rights to any Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Agreement or by Applicable Law in the absence of this Section 9.2.
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9.12 [Reserved].
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9.16 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) GOVERNING LAW. UNLESS EXPRESSLY PROVIDED IN ANY LOAN DOCUMENT, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL CLAIMS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES EXCEPT FEDERAL LAWS RELATING TO NATIONAL BANKS.
(b) Forum. EACH GRANTOR HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE COURT SITTING IN NEW YORK COUNTY, NEW YORK OR THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, IN ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREES THAT ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH GRANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL CLAIMS, OBJECTIONS AND DEFENSES THAT IT MAY HAVE REGARDING ANY SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.1. A final judgment in any proceeding of any such court shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or any other manner provided by Applicable Law.
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(a) This Agreement and the security interest of the Foreign Facility Secured Parties in the Collateral provided hereunder shall terminate upon the Full Payment of the Obligations (other than contingent obligations for indemnification, expense reimbursement, tax gross-up or yield protection in each case as to which no claim has been asserted or is reasonably expected to be asserted), at which time the Agent shall execute and deliver to the Grantors or the Grantors’ designee, at the Grantors’ expense, all Uniform Commercial Code termination statements and similar documents which the Grantors shall reasonably request from time to time to evidence such termination; provided, however, that that Agent shall not be obligated to execute or deliver such termination statements or similar documents with respect to any U.S. Facility Obligor until the Full Payment of all of the Foreign Facility Obligations and of all of the U.S. Facility Obligations (in each case other than contingent obligations for indemnification, expense reimbursement, tax gross-up or yield protection in each case as to which no claim has been asserted or is reasonably expected to be asserted). Any execution and delivery of termination statements or documents pursuant to this Section 9.24(a) shall be without recourse to or warranty by the Agent.
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(b) A Guarantor shall automatically be released from its obligations hereunder and the security interest of the Foreign Facility Secured Parties in the Collateral of such Guarantor shall be automatically released in the event that all the Equity Interests of such Guarantor shall be sold, transferred or otherwise disposed of to a person that is not an Affiliate of a Borrower in accordance with the terms of the Credit Agreement; provided that the Required Lenders (or, if required by the terms of the Credit Agreement, such greater percentage of the Lenders specified in the Credit Agreement) shall have consented to such sale, transfer or other disposition (to the extent required by the Credit Agreement) and the terms of such consent did not provide otherwise. The security interest of the Foreign Facility Secured Parties in any Collateral that is sold, transferred or otherwise disposed of in accordance with this Agreement, the Credit Agreement and the other Loan Documents (including pursuant to a waiver or amendment of the terms thereof) shall automatically terminate and be released, and such Collateral shall be sold free and clear of the security interest created hereby. In connection with any of the foregoing, the Agent shall execute and deliver to the Grantors or the Grantors’ designee, at the Grantors’ expense, all Uniform Commercial Code termination statements and similar documents (including any such documents as may be reasonably necessary in connection with the entry into by any Grantor of a Specified Vendor Receivables Financing) that the Grantors shall reasonably request from time to time to evidence such termination. Any execution and delivery of termination statements or documents pursuant to this Section 9.24(b) shall be without recourse to or warranty by the Agent.
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ARTICLE X
ARTICLE XI
THE AGENT
Bank of America, N.A. has been appointed Agent for the Foreign Facility Secured Parties hereunder pursuant to Section 12 of the Credit Agreement. It is expressly understood and agreed by the parties to this Agreement that any authority conferred upon the Agent hereunder is subject to the terms of the delegation of authority made by the Foreign Facility Secured Parties to the Agent pursuant to the Credit Agreement, and that the Agent has agreed to act (and any successor Agent shall act) as such hereunder only on the express conditions contained in such Section 12. Any successor Agent appointed pursuant to Section 12.8 of the Credit Agreement shall be entitled to all the rights, interests and benefits of the Agent hereunder.
[Signature Page Follows]
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| GRANTORS: | ||
| CEQUENT PERFORMANCE PRODUCTS, INC., a Delaware corporation | ||
| By: | /s/ Xxxxx X. Xxxx | |
| Name: | Xxxxx X. Xxxx | |
| Title: | Vice President | |
| HORIZON INTERNATIONAL HOLDINGS LLC, a Delaware limited liability company | ||
| By: | /s/ Xxxxx X. Xxxx | |
| Name: | Xxxxx X. Xxxx | |
| Title: | Vice President |
[Foreign Facility Guarantee and Collateral Agreement Signature Page]
| CEQUENT UK LIMITED, a company incorporated in England and Wales | ||
| By: | /s/ Xxxxx X. Xxxx | |
| Name: | Xxxxx X. Xxxx | |
| Title: | Director |
[Foreign Facility Guarantee and Collateral Agreement Signature Page]
| CEQUENT TOWING PRODUCTS OF CANADA LTD., | ||
| a company formed under the laws of the Province of Ontario | ||
| By: | /s/ Xxxxx X. Xxxx | |
| Name: | Xxxxx X. Xxxx | |
| Title: | Vice President |
[Foreign Facility Guarantee and Collateral Agreement Signature Page]
| CEQUENT NEDERLAND HOLDINGS B.V., | ||
| a company formed under the laws of the Netherlands | ||
| By: | /s/ Xxx Xxxxxxxx | |
| Name: | Xxx Xxxxxxxx | |
| Title: | Director B and Authorized Signatory | |
| Address: | ||
| 3062 Rotterdam | ||
| Max Xxxxxxxx 00 | ||
| xxx Xxxxxxxxxxx | ||
| Attn: Legal Director | ||
| Telecopy: x00 (00) 0000000 | ||
| CEQUENT MEXICO HOLDINGS B.V., a company formed under the laws of the Netherlands | ||
| By: | /s/ Xxx Xxxxxxxx | |
| Name: | Xxx Xxxxxxxx | |
| Title: | Director B and Authorized Signatory | |
| Address: | ||
| 3062 Rotterdam | ||
| Max Xxxxxxxx 00 | ||
| xxx Xxxxxxxxxxx | ||
| Attn: Legal Director | ||
| Telecopy: x00 (00) 0000000 |
[Foreign Facility Guarantee and Collateral Agreement Signature Page]
| CEQUENT SALES COMPANY DE MEXICO, S. DE X.X. DE C.V., a limited liability company formed under the laws of Mexico | ||
| By: | /s/ Xxxxxxxx Xxxxxxx Xxxxx xx Xxxxxxx | |
| Name: | Xxxxxxxx Xxxxxxx Xxxxx xx Xxxxxxx | |
| Title: | Attorney in Fact | |
| CEQUENT TRAILER PRODUCTS, S. DE X.X. DE C.V., a limited liability company formed under the laws of Mexico | ||
| By: | /s/ Xxxxxxxx Xxxxxxx Xxxxx xx Xxxxxxx | |
| Name: | Xxxxxxxx Xxxxxxx Xxxxx xx Xxxxxxx | |
| Title: | Attorney in Fact | |
| CEQUENT ELECTRICAL PRODUCTS DE MEXICO, S. DE X.X. DE C.V., a limited liability company formed under the laws of Mexico | ||
| By: | /s/ Xxxxxxxx Xxxxxxx Xxxxx xx Xxxxxxx | |
| Name: | Xxxxxxxx Xxxxxxx Xxxxx xx Xxxxxxx | |
| Title: | Attorney in Fact |
[Foreign Facility Guarantee and Collateral Agreement Signature Page]
| AGENT: | ||
| BANK OF AMERICA, N.A.,a national banking association | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | SVP |
[Foreign Facility Guarantee and Collateral Agreement Signature Page]