EXECUTION COPY
GRANT OF SECURITY INTEREST IN
INTELLECTUAL PROPERTY
THIS GRANT OF SECURITY INTEREST IN INTELLECTUAL PROPERTY made as of May 31, 2001
(the "Agreement") by each of the entities identified on the signature pages
hereof as Grantor (each "Grantor") and The CIT Group/Business Credit, Inc., as
Administrative Agent (in such capacity, the "Administrative Agent") under the
Financing Agreement referred to below, for the benefit of each of the Lenders,
the Issuing Bank and the Agents (each as defined therein, a "Beneficiary").
W I T N E S S E T H:
WHEREAS the Beneficiaries, and the Arrangers, and, as joint and several
obligors, Harvard Industries, Inc., Xxxxxxx-Xxxxxx, Inc., Harvard Transportation
Corporation, Xxxxxxx-Xxxxxx Greeneville, Inc., Pottstown Precision Casting,
Inc., Harvard Industries Risk Management, Inc., Xxxxxxx-Xxxxxx Toledo, Inc.,
Xxxxxx Automotive, Inc., Xxxxx-Albion Corporation, and KWCI Liquidating
Corporation (the "Companies") and, as Guarantors, Trim Trends Canada Limited and
000000 Xxxxxx Inc. (the "Guarantors") have entered into a Financing Agreement of
even date herewith (the "Financing Agreement"); and
WHEREAS the Financing Agreement provides (i) that the Beneficiaries will, on the
terms and subject to the conditions set forth therein, make loans or advances to
the Companies, issue Letters of Credit for the accounts of certain of the
Companies and otherwise to extend credit or financial accommodations to the
Companies, and (ii) for Grantor to grant to the Administrative Agent a security
interest in certain of Grantor's assets, including, without limitation, its
copyrights, patents, patent applications and/or registrations, trademarks,
trademark applications and/or registrations, tradenames, goodwill and licenses,
all as more fully set forth therein;
NOW, THEREFORE, in consideration of the premises set forth herein and for other
good and valuable consideration, receipt and sufficiency of which is hereby
acknowledged, Grantor agrees as follows:
ARTICLE 1: DEFINITIONS
1.01. Definitions. Unless otherwise specifically defined herein, capitalized
terms used herein shall have the meanings set forth in the Financing
Agreement.
"Copyright License" means any written or unwritten agreement, naming
Grantor as licensor or licensee, granting any right under any
Copyright.
"Patent License" means all agreements, whether written or oral,
providing for the grant by or to Grantor of any right to manufacture,
use or sell any invention covered by a Patent.
"Trademark License" means any agreement, written or oral, providing for
the grant by or to Grantor of any right to use any Trademark.
ARTICLE 2: GRANT OF SECURITY INTEREST
2.01. Grant of Security Interest. As security for the prompt payment in full
of all Obligations, Grantor hereby pledges and grants to the
Administrative Agent a security interest, effective immediately, in all
of Grantor's right, title and interest in and to all of the following
described property, whether now owned or hereafter acquired
(collectively herein the "IP Collateral"):
(a) all Patents, including, without limitation, the patents and
applications, listed on (1) Schedule A and (2) Schedule
Foreign Patents attached hereto and made a part hereof along
with any and all (i) inventions and improvements described and
claimed therein, (ii) any and all reissues and renewals,
divisions, continuations, extensions and continuations-in-part
thereof, (iii) all income, royalties, damages and payments now
and hereafter due and/or payable in connection therewith,
including, without limitation, damages and payments for past,
present or future infringements thereof, and (iv) rights to
xxx for past, present or future infringements thereof (all of
the foregoing are sometimes hereinafter individually and/or
collectively referred to as the "Patent Collateral");
(b) all Trademarks, including federal, state and common law
trademark registrations and/or applications and tradenames
including, without limitation, the trademarks and
applications, if any, listed on (1) Schedule B and (2)
Schedule Foreign Trademarks attached hereto and made a part
hereof, and any and all (i) reissues and/or renewals thereof,
and (ii) all income, royalties, damages and payments now and
hereafter due and/or payable in connection therewith,
including, without limitation, damages and payments for past,
present or future infringements thereof and rights to xxx for
past, present or future infringements thereof (all of the
foregoing are sometimes hereinafter individually and/or
collectively referred to as the "Trademark Collateral");
(c) all Copyrights, including, without limitation, registrations,
recordings and applications in the United States Copyright
office, including, without limitation, any thereof referred to
in Schedule C attached hereto;
(d) any Copyright License, Patent License or Trademark License,
including, without limitation, such licenses, if any, listed
on Schedule D attached hereto and made a part hereof along
with (i) any renewals, extensions, supplement and
continuations thereof, (ii) all income, royalties, damages and
payments now and hereafter due and/or payable in connection
therewith, including, without limitation, damages and payments
for past, present or future breaches thereof, (iii) rights to
xxx for past, present or future breaches thereof, and (iv) any
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other rights to use, exploit or practice any or all of the
patents, trademarks or copyrights pertaining thereto (all of
the foregoing are sometimes referred to herein individually
and/or collectively as the "License Collateral");
(e) all goodwill of Grantor's business connected with and
symbolized by the Trademarks and other general intangibles,
including, without limitation, know-how, trade secrets,
customer lists, proprietary information, inventions, methods,
procedures and formulae;
(f) all cash and non-cash proceeds of the foregoing described in
clauses (a) through (e), and, to the extent not otherwise
included, any
(i) payments under any insurance, indemnity, warranty or
guarantee or letter of credit payable with respect to
any of the foregoing described in clauses (a) through
(e);
(ii) payments (in any form whatsoever) made or due and
payable to Grantor from time to time in connection
with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of any of
the foregoing described in clauses (a) through (e) by
any Governmental Authority (or any person acting
under color of a Governmental Authority);
(iii) instruments representing obligations to pay amounts
in respect of any products of any of the foregoing
described in clauses (a) through (e); and
(iv) other amounts from time to time paid or payable under
or in connection with any of any of the foregoing
described in clauses (a) through (e).
(g) all books, records, ledger cards, files, correspondence,
computer programs, tapes, disks, and related data processing
software (owned by Grantor or in which it has an interest)
that at any time evidence or contain information relating to
any IP Collateral or are otherwise necessary or helpful in the
use thereof, collection thereof or realization thereupon.
(h) to the extent not otherwise included in the foregoing, all
General Intangibles;
Grantor and the Administrative Agent hereby acknowledge and agree that
the security interest created hereby in the IP Collateral (i)
constitutes continuing collateral security for all of the Obligations,
whether now existing or hereafter arising, (ii) is not to be construed
as an assignment or license of any IP Collateral, and (iii) shall
remain in full force and effect until the termination of the
Commitments and the full, final and indefeasible payment and
performance of the Obligations.
2.02. The Administrative Agent's Rights as Secured Party. Upon the occurrence
of any Event of Default, the Administrative Agent shall have all the
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rights and remedies of a secured party under the UCC and any other
applicable state or federal laws. If any Event of Default or if a
Default consisting of a failure of payment of a kind referred to in
Paragraph 12.1(g) of the Financing Agreement (a "Payment Default")
occurs and is continuing, then on ten (10) days' prior notice to
Grantor, without the curing of such default within such time, the
Administrative Agent may, without demand of performance, advertisement
or notice of intention to sell, or of the time or place of sale, and
without notice to redeem, or other notice or demand whatsoever
(including those referred to in section 5.12 hereof) to or upon Grantor
(all and each of which demands, advertisements and/or notices are
hereby expressly waived by Grantor), forthwith or at any time or times
thereafter
(a) transfer to and/or register in the Administrative Agent's
name, or the name of the Administrative Agent's nominee, any
or all of the IP Collateral and/or collect, receive,
appropriate and realize upon said IP Collateral;
(b) sell, assign, transfer and deliver to any other person all
right, title and interest in and to all or any part of the IP
Collateral then held by the Administrative Agent under this
Agreement or subject to this Agreement.
(c) Grantor agrees that any notice of sale, disposition, or other
intended action by the Administrative Agent that may be
required by applicable law, if sent to Grantor at least ten
(10) days prior to such action shall constitute reasonable
notice to Grantor. Notwithstanding anything to the contrary
elsewhere in this Agreement, if the Obligations are declared
or automatically become immediately due and payable pursuant
to Paragraph 12.2 of the Financing Agreement, in connection
with an Event of Default, the rights and remedies of the
Administrative Agent provided for herein, including, without
limitation, your rights to exercise the powers granted to the
Administrative Agent in the power of attorney included in the
Financing Agreement and this Agreement, shall continue and
shall not cease to be effective until the full, final and
indefeasible payment of all the Obligations, regardless of
whether such Event of Default is subsequently remedied.
2.03. Power of Attorney. Grantor hereby confirms the power of attorney that
it has granted to the Administrative Agent in Paragraph 11.1 of Section
11 of the Financing Agreement and Grantor confirms that the
Administrative Agent, or any person or agent designated by the
Administrative Agent may, as Grantor's attorney-in-fact thereunder, at
Grantor's cost and expense, exercise all of the powers there granted to
the Administrative Agent with respect to the IP Collateral as well as
each of those set forth below:
(a) to perform or cause the performance of any obligation of
Grantor hereunder;
(b) to liquidate any IP Collateral and otherwise to deal in or
with the IP Collateral or the proceeds or avails thereof, as
fully and effectually as if the Administrative Agent were
absolute owner thereof, and to apply the proceeds thereof to
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payment of the Obligations, notwithstanding the fact that such
liquidation may give rise to penalties;
(c) to transmit to any persons indebted on any IP Collateral
notice of the Administrative Agent's interest therein and to
notify any persons indebted on any IP Collateral to make
payment directly to the Administrative Agent for Grantor's
account and receive and give acquittance and receipts for
moneys due and to be come due under or in respect of any of
the IP Collateral;
Notwithstanding anything hereinabove contained to the contrary, the
powers set forth in (b) and (c) above may only be exercised after the
occurrence of an Event of Default and until such time as such Event of
Default is waived in writing by the Required Lenders. Grantor hereby
ratifies and approves all of the Administrative Agent's acts taken
pursuant to the foregoing appointment, other than acts constituting
gross negligence or willful misconduct, and the Administrative Agent,
as Grantor's attorney-in-fact, will not be liable for any acts of
commission or omission, or for any error of judgment or mistake of fact
or law, other than those that constitute gross negligence or willful
misconduct on the part of the Administrative Agent. Grantor agrees
that, in the event the Administrative Agent exercises its rights
hereunder and/or pursuant to said power of attorney in accordance with
its terms, after written notification of such exercise from the
Administrative Agent to Grantor, Grantor shall never thereafter,
without the prior written authorization of the owner or owners of such
IP Collateral, use any of such IP Collateral. The condition of the
foregoing provision is such that unless and until there occurs an Event
of Default, Grantor shall continue to own and use the IP Collateral in
the normal course of its business and to enjoy the benefits, royalties
and profits therefrom; provided, however, that from and after the
occurrence of an Event of Default such right will, upon the exercise by
the Administrative Agent of the rights contemplated in this Agreement
(including those provided for in any other Loan Document or by
applicable law), be revoked and the right of Grantor to enjoy the uses,
benefits, royalties and profits of said IP Collateral will wholly
cease, whereupon the Administrative Agent or its transferee(s) shall be
entitled to all of Grantor's right, title and interest in and to the IP
Collateral hereby so assigned. This Agreement will not operate to place
upon the Administrative Agent any duty or responsibility to maintain
the IP Collateral.
ARTICLE 3: COVENANTS
3.01. Filings to Confirm Perfection of Security Interest. On a continuing
basis, Grantor shall, at its sole cost and expense, make, execute,
acknowledge and deliver, and file and record in the proper filing and
recording offices, all such instruments or documents, including,
without limitation, appropriate UCC financing and continuation
statements and collateral agreements and the notices attached as
Schedules A, B and C hereto, and take all such action as may be deemed
necessary by the Administrative Agent to carry out the intent and
purpose of this Agreement, to assure and confirm to the Administrative
Agent the grant or perfection of a first priority security interest in
the IP Collateral, and to enable the Administrative Agent to exercise
and enforce its rights and remedies hereunder with respect to any IP
Collateral. Notwithstanding the foregoing, Grantor's obligations to
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record Administrative Agent's security interest in any patent or
trademark application or registration shall apply only to (a) those
U.S. and Canadian patent and trademark applications and registrations
listed in (1) Schedule A and Schedule B, (2) future applications for
patents and trademarks and applications or registrations for
copyrights, in each case, that are useful in the business of Grantor or
any other direct or indirect subsidiary of Harvard, and (3) patents and
trademarks listed on the Schedule Foreign Patents or Schedule Foreign
Trademarks, if such patent or trademark is necessary for the operations
of any material portion of the business of Harvard or any of its direct
or indirect subsidiaries.
3.02. Fees. Grantor shall pay all filing fees with respect to the security
interest created hereby which the Administrative Agent may deem
necessary or advisable in order to perfect and maintain the perfection
of its security interest in the IP Collateral.
3.03. Applications and Preservation of IP Collateral. Grantor shall
diligently prosecute all applications for Patents or Trademarks now or
hereafter pending the registration of which would be necessary to any
material portion of the business of Grantor, and shall do all acts
necessary to preserve and maintain all rights in the IP Collateral
necessary for the operation of any material portion of Grantor's
business. Any and all costs and expenses incurred in connection with
any such actions shall be borne by Grantor. Grantor shall not abandon
any right to file a Patent or Trademark application claiming priority
from another pending Patent or Trademark application or registration,
or any pending Patent or Trademark application or any Patent or
Trademark the registration of which would be necessary for the
operation of any material portion of Grantor's business without the
consent of the Administrative Agent.
3.04. Notice to Administrative Agent and Lenders.
(a) Abandonments or Adverse Proceedings. Grantor shall promptly
provide written notice in the manner provided in Section 5.08
to the Administrative Agent and the Lenders if it knows, or
has reason to know, that any application or registration for
any Patent or Trademark or copyright (1) in the U.S. or Canada
or (2) in any other country if such application or
registration is necessary for the operation of a material
portion of Grantor's business may become abandoned or
dedicated, or of any adverse determination or proceeding in
the United States Patent and Trademark Office (other than
nonfinal office actions in the course of patent or trademark
prosecution) or any court or tribunal in any country regarding
the ownership of any Patent or Trademark in the U.S. or Canada
or in any other country if such application or registration is
necessary for the operation of a material portion of Grantor's
business or any application or registration therefor or its
right to register the same or to keep and maintain the same.
(b) Filing an application for registration of any Patent or
Trademark. Whenever Grantor, either (i) by itself or through
an agent, employee, licensee or designee, shall file an
application for the registration of any Patent or Trademark
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with the United States Patent and Trademark Office or any
similar office or agency in any other country or any political
subdivision thereof; or (ii) otherwise acquires any Patent,
Trademark or application therefor, Grantor shall report such
filing to the Administrative Agent and the Lenders within five
Business Days after the last day of the fiscal quarter in
which such filing occurs.
(c) Infringement, Misappropriation or Dilution. Grantor shall
promptly provide written notice in the manner provided in
Section 5.08 to the Administrative Agent and the Lenders
whenever Grantor learns that any Patent or Trademark included
in the IP Collateral is infringed, misappropriated or diluted
by a third party and, in the case of any such Patent or
Trademark which is material to the Grantor's business,
promptly xxx for infringement, misappropriation or dilution,
to seek injunctive relief where appropriate and to recover any
and all damages for such infringement, misappropriation or
dilution, and, in any case, to take such actions as it shall
reasonably deem appropriate under the circumstances to protect
such Patent or Trademark.
(d) General Obligation to Notify. To the extent not otherwise
included in the foregoing Grantor covenants and agrees that,
with respect to the IP Collateral, it will promptly provide
the Administrative Agent written notice in the manner provided
in Section 5.08 of: (i) any claim by a third party that
Grantor has infringed on the rights of a third party; (ii) any
suspected infringement by a third party on the rights of
Grantor; or (iii) any IP Collateral except such IP Collateral
the absence of which would not be material to Grantor's
business or the business of any other direct or indirect
subsidiary of Harvard or any application or registration for
IP Collateral created, arising or acquired by Grantor after
the date hereof.
3.05. Defense of Claims. Grantor will defend at its own cost and expense any
action, claim or proceeding affecting the IP Collateral and/or the
interest of the Administrative Agent therein.
3.06. Change of Location/Name. Grantor agrees that it shall not (i) change
the location of its chief executive office/chief place of business from
its address specified for notices herein, or (ii) change its name
(including the adoption of any new trade name), jurisdiction of
incorporation, identity or corporate structure, unless, in any such
case, it shall have provided at least thirty (30) days' prior written
notice to the Administrative Agent of any such change and until such
filings and other measures as may be required under applicable law to
continue uninterrupted the perfected lien or security interest created
hereunder on and in the IP Collateral shall have been taken, and until
the Administrative Agent shall have received such opinions of counsel
with respect thereto as it may have reasonably requested.
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ARTICLE 4: REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties.
(a) Ownership, No Liens, Prior Assignments, or Infringements.
Notwithstanding anything to the contrary elsewhere in the Loan
Documents, Grantor makes no representation as to subsistence
or maintenance as to the IP Collateral referred to in the
Schedule Foreign Patents or Schedule Foreign Trademarks.
Grantor represents and warrants and covenants that Grantor
lawfully possesses and owns the IP Collateral and that, except
for the security interest granted hereby and the Permitted
Encumbrances, the IP Collateral is and will continue to be
kept free from all liens, security interests, claims and
encumbrances whatsoever; that Grantor has not made or given
any prior assignment, transfer or security interest in the IP
Collateral or any of the proceeds thereof; the IP Collateral
listed in Schedules A, B and C hereto is and will continue to
be, in all respects, in full force and effect; and, except as
disclosed in Schedule 11 to the Financing Agreement there are
no known or threatened claims by a third party that Grantor
has infringed on the rights of a third party.
(b) Valid Security Interest/Priority. Grantor represents and
warrants that this Agreement creates a valid security interest
in favor of the Administrative Agent in the IP Collateral and,
when the appropriate UCC filings, registrations, recordings
and other notices, which are those listed in Schedules A, B
and C attached hereto, have been filed, registered or recorded
(as applicable), the Administrative Agent shall have a valid
perfected security interest in the IP Collateral, to the
extent such security can be perfected by filing under the UCC,
with the United States Patent and Trademark Office and/or with
the United States Copyright Office, free and clear of any and
all liens and encumbrances except for Permitted Encumbrances.
ARTICLE 5: GENERAL
5.01. Application of Proceeds. The proceeds of any disposition of the IP
Collateral shall be applied, first, to all costs and expenses,
including, but not limited to, reasonable attorneys' fees and expenses
and court costs, incurred by the Administrative Agent in connection
with such disposition and its exercise of its and the Beneficiaries'
rights and remedies hereunder and under the other Loan Documents, and,
next, to the payment in whole or in part, in such order as the
Administrative Agent may elect, of the Obligations, whether then due or
not due, in accordance with the terms of the Financing Agreement and
the Intercreditor Agreement. The Administrative Agent agrees to pay
over any remaining balance as it and the Junior Lien Lender have agreed
in the Intercreditor Agreement and, only if the Administrative Agent
holds any balance after all such applications will it be required to
pay the balance over to Grantor or to any person entitled thereto or as
a court of competent jurisdiction may direct, upon proper demand being
made therefor. If the Obligations are not fully and finally satisfied
through this application of proceeds and the application of the
proceeds of other Collateral as contemplated in the other Loan
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Documents and the Intercreditor Agreement, Grantor shall continue to be
fully liable for the deficiency to the extent provided in the Financing
Agreement.
5.02. Rights Cumulative. The security interest granted herein and the rights
and remedies provided to you in this Agreement shall be in addition to,
and not in substitution, reduction, replacement, or satisfaction of,
any other endorsements or guarantees of the Obligations under the
Financing Agreement or any other Loan Document now existing or
hereafter executed by Grantor or any other Person, and shall not be
deemed to affect, prejudice modify or limit the Financing Agreement,
any other Loan Document or any other rights, collateral, agreements or
security that the Administrative Agent has under the Financing
Agreement or any other Loan Document whether granted or given to you by
Grantor, any Company or Guarantor or by any other Person. In addition,
nothing in this Agreement shall be deemed to affect, prejudice, modify
or limit any of your agreements with the Beneficiaries and/or the
Junior Lien Lender, as applicable, under the Financing Agreement or the
Intercreditor Agreement as to what rights and remedies you, the
Beneficiaries and the Junior Lien Lender may have, the order in which
you or they may elect to exercise them or as to the conditions to their
exercise.
5.03. Grantor and (by their acceptance of the benefits of this Pledge
Agreement) the Administrative Agent and each of the Beneficiaries
hereby agrees that if any provision hereof or of any other agreement
made in connection herewith is held to be illegal or unenforceable,
such provision shall be fully severable, and the remaining provisions
of the applicable agreement shall remain in full force and effect and
shall not be affected by such provision's severance. Furthermore, in
lieu of any such provision, there shall be added automatically as a
part of the applicable agreement a legal and enforceable provision as
similar in terms to the severed provision as may be possible.
5.04. Waiver of Jury Trial. NEITHER GRANTOR NOR ITS SUCCESSOR, ASSIGN OR
PERSONAL REPRESENTATIVE SHALL SEEK A JURY TRIAL IN ANY LAWSUIT,
PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE INVOLVING
GRANTOR, ITS SUCCESSOR, ASSIGN OR PERSONAL REPRESENTATIVE (OR ANY
OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF ANY OF THEM) BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, ANY
IP COLLATERAL OR ANY COLLATERAL FOR THE PAYMENT OF ANY OF THE
OBLIGATIONS OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG SUCH
PERSONS OR ENTITIES, OR ANY OF THEM OR ANY OTHER PARTY TO ANY LOAN
DOCUMENT. NONE OF GRANTOR, ITS SUCCESSOR, ASSIGN OR PERSONAL
REPRESENTATIVE WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS SECTION 5.04 HAVE
BEEN FULLY DISCUSSED BY GRANTOR AND THE ADMINISTRATIVE AGENT, AND THE
PROVISIONS HEREOF SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN
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ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE
PROVISIONS OF THIS SECTION 5.04 WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
5.05. Governing Law. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
5.06. Submission to Jurisdiction; Service of Process. Grantor hereby
irrevocably:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the State of New York, the courts
of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that nothing contained herein shall affect the
right to effect service of process in any other manner permitted by law
or shall limit the right to xxx in any other jurisdiction;
(d) appoints CT Corporation, Inc., at 000 Xxxxxx Xxxxxx, 00xx
xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its agent to receive service of
process or other summons in connection with any such action or
proceeding and waives personal service of process and consents to
service of process by certified or registered mail, return receipt
requested, addressed to Grantor at its address for notices under the
Financing Agreement.
5.07. Events of Default. Grantor shall be in default under this Agreement
upon the occurrence of any Event of Default under the Financing
Agreement.
5.08. Notices. Any notice or other communication required hereunder or
relating to this Agreement shall be given as provided in Paragraph 14.6
of Section 14 of the Financing Agreement for notices relating thereto.
5.09. Further Assurances. Grantor will take any such action as the
Administrative Agent may reasonably require to further confirm or
protect the Administrative Agent's rights under this Agreement in the
IP Collateral. Grantor agrees to execute and deliver to the
Administrative Agent (at Grantor's expense) any further documentation
or papers necessary to carry out the intent or purpose of this
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Agreement, including, without limitation, financing statements under
the UCC and notices attached hereto as Schedules A, B and C.
5.10. Termination. This Agreement shall terminate upon termination of the
Line of Credit and full, final and indefeasible payment of all
Obligations of Grantor thereunder. Upon Grantor's request, the
Administrative Agent shall within a reasonable time after any such
termination execute and deliver to Grantor (at Grantor's expense) such
documents and instruments as are reasonably necessary to evidence such
termination and release of the security interest granted herein on any
applicable public record.
5.11. Indemnification. Grantor hereby acknowledges that this Agreement is a
Loan Document and as such Grantor is subject to the provisions
respecting indemnification of Paragraph 9.3 of Section 9 of the
Financing Agreement.
5.12. No Limitations of Remedies; No Waiver. It is understood and agreed that
the rights and remedies herein enumerated are not intended to be
exhaustive but are in addition to any other rights or remedies provided
at law, in equity, by contract (including, without limitation, the
other Loan Documents) or otherwise. The Administrative Agent shall have
the absolute right in its sole discretion to determine the order in
which its rights and remedies are to be exercised, and its exercise of
any right or remedy shall not preclude the exercise of any other rights
or remedies or be deemed to be a waiver thereof. Grantor hereby waives
diligence, notice of intent to accelerate, notice of acceleration,
demand, presentment and protest and any notices thereof as well as
notice of nonpayment. No delay or omission of the Administrative Agent
to exercise any right or remedy hereunder, whether before or after the
happening of any Event of Default, shall impair any such right or shall
operate as a waiver thereof or as a waiver of any such Event of
Default. No single or partial exercise by the Administrative Agent or
Grantor of any right or remedy precludes any other or further exercise
thereof, or precludes any other right or remedy. A waiver on any one
occasion shall not be construed as a bar to, or waiver of, any right or
remedy on any future occasion. No waiver of any right or remedy
provided for herein shall be effective as a waiver unless it is in
writing and signed by the Required Lenders.
5.13. Assignment. This Agreement may be assigned by the Administrative Agent
and shall be for the benefit of each of the Beneficiaries and each of
their successors assignees or transferees, and shall cover any
Obligations at the time of assignment or transfer as well as any and
all future Obligations, loans, advances or extensions of credit made to
the Companies by, or otherwise owed by Grantor to such assignee or
transferee.
5.14. Survival. The representations, covenants and agreements of Grantor
herein contained shall survive the date hereof, and shall be deemed to
have been remade on and as of the date on which any additional
Obligations are created.
5.15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an
original and such counterparts shall together constitute but one and
the same document.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date set forth above.
GRANTORS:
Harvard Industries, Inc.
By
------------------------
Name:
Title:
Xxxxxxx-Xxxxxx, Inc.
By
------------------------
Name:
Title:
Xxxxx-Albion Corporation
By
------------------------
Name:
Title:
Xxxxxx Automotive, Inc.
By
------------------------
Name:
Title:
Agreed and Accepted as of
the date set forth above
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
--------------------------------
Title:
12
ADDITIONAL GRANTOR:
Harvard Industries Risk Management, Inc.
(f/k/a Xxxxxxx-Xxxxxx Technologies, Inc.)
By
---------------------------
Name:
Title:
13
SCHEDULE A
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
PATENTS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Grant of Security Interest in
Intellectual Property dated as of May 31, 2001 (as the same may be amended,
modified, extended or restated from time to time, the "IP Security Agreement")
by and between [Entity Name], a [______________] corporation ("Grantor") and CIT
Group/Business Credit, Inc., as Administrative Agent (the "Administrative
Agent") for the benefit of the Beneficiaries defined therein, Grantor has
granted to the Administrative Agent a continuing security interest in and a
continuing lien upon, the patents and patent applications shown below:
PATENTS
Patent No. Description of Patent Item Date of Patent
---------------- -------------------------- --------------
PATENT APPLICATIONS
Patent Description of Patent Date of Patent
Applications No. Applied For Applications
---------------- -------------------------- --------------
14
Grantor and the Administrative Agent hereby acknowledge and agree that
the security interest in the foregoing patents and patent applications (i) may
only be terminated in accordance with the terms of the IP Security Agreement and
(ii) is not to be construed as an assignment or license of any patent or patent
application.
Very truly yours,
[Entity Name]
a [_____________] corporation
By:
----------------------------
Name:
Title:
Acknowledged and Accepted:
CIT GROUP/BUSINESS CREDIT, INC.
as Administrative Agent
By:
-------------------------------
Name:
Title:
15
SCHEDULE B
NOTICE
OF
GRANT OF SECURITY INTEREST
TRADEMARKS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Grant of Security Interest in
Intellectual Property dated as of May 31, 2001 (as the same may be amended,
modified, extended or restated from time to time, the "IP Security Agreement")
by and between [Entity Name], a [__________________] corporation (the
"Grantor"), and CIT Group/Business Credit, Inc., as Administrative Agent (the
"Administrative Agent") for the benefit of the Beneficiaries defined therein,
Grantor has granted to the Administrative Agent a continuing security interest
in and continuing lien upon, the trademarks and trademark applications shown
below:
TRADEMARKS
Trademark No. Description of Trademark Item Date of Trademark
------------- ----------------------------- -----------------
TRADEMARK APPLICATIONS
Trademark Description of Trademark Date of Trademark
Applications No. Applied For Applications
------------- ----------------------------- -----------------
16
Grantor and the Administrative Agent, hereby acknowledge and agree that
the security interest in the foregoing trademarks and trademark applications (i)
may only be terminated in accordance with the terms of the IP Security Agreement
and (ii) is not to be construed as an assignment or license of any trademark or
trademark application.
Very truly yours,
[Entity Name]
a [_____________] corporation
By:
----------------------------
Name:
Title:
Acknowledged and Accepted:
CIT GROUP/BUSINESS CREDIT, INC.
as Administrative Agent
By:
-------------------------------
Name:
Title:
17
SCHEDULE C
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
COPYRIGHTS
United States Copyright Office
Gentlemen:
Please be advised that pursuant to the Grant of Security Interest in
Intellectual Property dated as of May 31, 2001 (as the same may be amended,
modified, extended or restated from time to time, the "IP Security Agreement")
by and between [Entity Name], a [__________] corporation (the "Grantor"), and
CIT Group/Business Credit, Inc., as Administrative Agent (the "Administrative
Agent") for the benefit of the Beneficiaries defined therein, Grantor has
granted to the Administrative Agent a continuing security interest in and a
continuing lien upon, the copyrights and copyright applications shown below:
COPYRIGHTS
Copyright No. Description of Copyright Date of Copyright
------------------------- ------------------------ -----------------
COPYRIGHT APPLICATIONS
Description of Copyright Date of Copyright
Copyright Applications No. Applied For Applications
------------------------- ------------------------ -----------------
18
Grantor and the Administrative Agent hereby acknowledge and agree that
the security interest in the foregoing copyrights and copyright applications (i)
may only be terminated in accordance with the terms of the IP Security Agreement
and (ii) is not to be construed as an assignment or license of any copyright or
copyright application.
Very truly yours,
[Entity Name]
a [_____________] corporation
By:
----------------------------
Name:
-----------------------
Title:
----------------------
Acknowledged and Accepted:
CIT GROUP/BUSINESS CREDIT, INC.
as Administrative Agent
By:
-------------------------------
Name:
Title:
19
SCHEDULE FOREIGN PATENTS
20
SCHEDULE FOREIGN TRADEMARKS
21
