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EXHIBIT 10.20
FORM OF
SECURITY AGREEMENT
1. Recitals.
[______________________], a [___________] corporation (together with
its successors and assigns, "Pledgor"), the lending institutions listed on Annex
I to the Credit Agreement, as hereinafter defined (collectively, "Lenders" and,
individually, "Lender"), and KEYBANK NATIONAL ASSOCIATION, as administrative
agent for the Lenders ("Administrative Agent"), are parties to the Credit
Agreement.
Pledgor understands that the Lenders are willing to continue to grant
the financial accommodations to Pledgor pursuant to the Credit Agreement only
upon certain terms and conditions, one of which is that Pledgor grant to
Administrative Agent, for the benefit of the Lenders, a security interest in and
an assignment of the Collateral, as hereinafter defined, and this Security
Agreement (as the same may from time to time be amended, restated or otherwise
modified, this "Agreement") is being executed and delivered in consideration of
each financial accommodation granted to Pledgor by the Lenders and for other
valuable considerations.
2. Definitions. Except as specifically defined herein,
capitalized terms used herein that are defined in the Credit Agreement shall
have their respective meanings ascribed to them in the Credit Agreement. Unless
otherwise defined in this Section 2, terms that are defined in Chapter 1309 of
the Ohio Revised Code as in effect from time to time, are used herein as so
defined. As used in this Agreement, the following terms shall have the following
meanings:
"Account" shall mean (a) all of Pledgor's accounts, as defined in
Chapter 1309 of the Ohio Revised Code as in effect from time to time; (b)(i) any
right to payment now or hereafter owing to Pledgor (including but not limited to
any such right to payment by reason of any lease, sale, manufacture, repair,
processing or fabrication of personal property formerly, now or hereafter owned
or otherwise held by Pledgor, by reason of any services formerly, now or
hereafter rendered by or on behalf of Pledgor or by reason of any former,
existing or future contract for any such lease, sale, manufacture, repair,
processing, fabrication and/or services), whether such right to payment be
classified by law as an instrument, chattel paper, contract right, account,
document, general intangible or otherwise; (ii) the security, if any, for such
right to payment; (iii) Pledgor's right, title and interest (including, without
limitation, all of Pledgor's rights as an unpaid vendor, and any applicable
right of stoppage in transit) in or to the personal property, if any, that is
the subject of such right to payment; and (iv) all books and records pertaining
to such right to payment; and (c) all proceeds of any of the foregoing,
irrespective of the form or kind thereof.
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"Account Debtor" shall mean any Person obligated to pay all or any part
of any Account in any manner and includes (without limitation) any guarantor
thereof or other accommodation party therefor.
"Cash Collateral Account" shall mean a commercial Deposit Account
designated "cash collateral account" and maintained by Pledgor with
Administrative Agent, without liability by Administrative Agent or the Lenders
to pay interest thereon, from which account Administrative Agent shall have the
exclusive right to withdraw funds until all of the Obligations is paid in full.
"Cash Security" shall mean all cash, instruments, Deposit Accounts, and
other cash equivalents, whether matured or unmatured, whether collected or in
the process of collection, upon which Pledgor presently has or may hereafter
have any claim, wherever located, including but not limited to any of the
foregoing that are presently or may hereafter be existing or maintained with,
issued by, drawn upon, or in the possession of Administrative Agent or any
Lender.
"Collateral" shall mean all of Pledgor's existing and future (a)
personal property; (b) Accounts, Investment Property, letter-of-credit rights,
contract rights, instruments, chattel paper, documents, General Intangibles,
Inventory and Equipment; (c) funds now or hereafter on deposit in the Cash
Collateral Account, if any; (d) Cash Security; and (e) Proceeds, products,
profits, and rents of any of (a) through (d) above.
"Credit Agreement" shall mean the Credit Agreement executed by and
between Pledgor, Administrative Agent and the Lenders, dated as of the 1st day
of May, 1998, as amended and as the same may from time to time be further
amended, restated or otherwise modified.
"Deposit Account" shall mean (a) a deposit account, as defined in
Chapter 1309 of the Ohio Revised Code as in effect from time to time, (b) any
other deposit account, and (c) any demand, time, savings, passbook, or a similar
account maintained with a bank, savings and loan association, credit union, or
similar organization.
"Equipment" shall mean all of Pledgor's (a) equipment, as defined in
Chapter 1309 of the Ohio Revised Code as in effect from time to time, including
without limitation, machinery, motor vehicles, trade fixtures, office and other
furniture and furnishings; (b) goods that are used or bought for use primarily
in Pledgor's business; (c) goods that are not consumer goods, farm products (as
defined in Chapter 1309 of the Ohio Revised Code as in effect from time to
time), or Inventory; and (d) substitutes or replacements for, and parts,
accessories, additions, attachments, or accessions to (a) through (c) above.
"Event of Default" shall mean an event or condition that constitutes an
Event of Default, as defined in Section 16.1 of this Agreement.
"General Intangibles" shall mean all of Pledgor's (a) general
intangibles, as defined in Chapter 1309 of the Ohio Revised Code as in effect
from time to time; (b) choses in action, causes of action, customer lists,
corporate or other business records, inventions, designs, patents, patent
applications, service marks, registrations, trade names, trademarks, copyrights,
goodwill, computer software, rights to indemnification and tax refunds; and (c)
Proceeds of any of the foregoing, irrespective of the form or kind thereof.
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"Hedge Agreement" shall mean any currency swap or hedge agreement,
interest rate swap, cap, collar or floor agreement, or other interest rate
management device entered into by Pledgor or any Eligible Subsidiary with
Administrative Agent or any of the Lenders, or any of their respective
affiliates, in connection with the Obligations.
"Inventory" shall mean all of Pledgor's (a) inventory, as defined in
Chapter 1309 of the Ohio Revised Code as in effect from time to time; (b) goods
that are raw materials; (c) goods that are work-in-process; (d) goods that are
materials used or consumed in the ordinary course of Pledgor's business; (e)
goods that are, in the ordinary course of Pledgor's business, held for sale or
lease or furnished or to be furnished under contracts of service; and (f)
substitutes and replacements for, and parts, accessories, additions, attachments
or accessions to (a) through (e) above.
"Investment Property" shall mean all of Pledgor's investment property,
as defined in Chapter 1309 of the Ohio Revised Code as in effect from time to
time, unless the Uniform Commercial Code as in effect in another jurisdiction
would govern the perfection and/or priority of a security interest in investment
property, and, in such case, investment property shall be defined in accordance
with the law of that jurisdiction as in effect from time to time.
"Letter of Credit" shall mean any Letter of Credit, as defined in the
Credit Agreement, issued pursuant to the Credit Agreement.
"Loan" shall mean any Loan, as defined in the Credit Agreement, granted
pursuant to the Credit Agreement.
"Obligations" shall mean, collectively, (a) all Loans and Letters of
Credit; (b) all other indebtedness now owing or hereafter incurred by Pledgor or
any Eligible Subsidiary to Administrative Agent or any Lender pursuant to the
Credit Agreement and any Note executed in connection therewith; (c) each
renewal, extension, consolidation or refinancing of any of the foregoing, in
whole or in part; (d) all interest from time to time accruing on any of the
foregoing, and all fees and other amounts payable by Pledgor to Administrative
Agent or any Lender pursuant to the Credit Agreement; (e) all obligations and
liabilities of Pledgor now existing or hereafter incurred to Administrative
Agent or any Lender (or any affiliate of such Lender) under, arising out of, or
in connection with any Hedge Agreement; (f) every other liability, now or
hereafter owing to Administrative Agent or any Lender by Pledgor or any Eligible
Subsidiary pursuant to the Credit Agreement or any other Credit Document; and
(g) all Related Expenses.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, unincorporated organization, corporation, limited liability
company, institution, trust, estate, government or other agency or political
subdivision thereof or any other entity.
"Proceeds" shall mean (a) any proceeds, and (b) whatever is received
upon the sale, exchange, collection or other disposition of Collateral or
proceeds, whether cash or non-cash. Cash proceeds includes, without limitation,
moneys, checks, and Deposit Accounts. Proceeds includes, without limitation, any
Account arising when the right to payment is earned under a contract right, any
insurance payable by reason of loss or damage to the Collateral, and any return
or unearned premium upon any cancellation of insurance. Except as expressly
authorized in this Agreement, the right of Administrative Agent and the Lenders
to Proceeds specifically set
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forth herein, or indicated in any financing statement, shall never constitute an
express or implied authorization on the part of Administrative Agent or any
Lender to Pledgor's sale, exchange, collection, or other disposition of any or
all of the Collateral.
"Related Expenses" shall mean any and all reasonable costs, liabilities
and expenses (including, without limitation, losses, damages, penalties, claims,
actions, reasonable attorneys' fees, legal expenses, judgments, suits and
disbursements) (a) incurred by Administrative Agent, or imposed upon or asserted
against Administrative Agent or any Lender, in any attempt by Administrative
Agent and the Lenders to (i) obtain, preserve, perfect, or enforce any security
interest evidenced by this Agreement, the Credit Agreement, any Credit Document,
or any other document, instrument or agreement executed in connection with any
of the foregoing; (ii) obtain payment, performance or observance of any and all
of the Obligations; or (iii) maintain, insure, audit, collect, preserve,
repossess or dispose of any of the Collateral or any other collateral securing
the Obligations, including, without limitation, costs and expenses for
appraisals, assessments and audits of Pledgor or any such collateral; or (b)
incidental or related to (a) above, including, without limitation, interest
thereupon from the date incurred, imposed or asserted until paid.
3. Security Interest. In consideration of and as security for the
full and complete payment of all of the Obligations, Pledgor hereby agrees that
Administrative Agent shall at all times have, and hereby grants to
Administrative Agent, for the benefit of the Lenders, a security interest in and
an assignment of all of the Collateral, including (without limitation) all of
Pledgor's future Collateral, irrespective of any lack of knowledge by
Administrative Agent or the Lenders of the creation or acquisition thereof.
4. Representations and Warranties. Pledgor hereby represents and
warrants to Administrative Agent and each Lender as follows:
4.1. Pledgor is a corporation duly organized, validly existing and
in good standing under the laws of its state of incorporation and is duly
qualified to do business in each state in which a failure to so qualify would
have a material adverse effect on Pledgor.
4.2. Pledgor has full power, authority and legal right to pledge
the Collateral, to execute and deliver this Agreement, and to perform and
observe the provisions hereof. The officers acting on Pledgor's behalf have been
duly authorized to execute and deliver this Agreement and to execute and file
appropriate financing statements in respect hereof. This Agreement is valid and
binding upon Pledgor in accordance with the terms hereof.
4.3. Neither the execution and delivery of this Agreement, nor the
performance and observance of the provisions hereof, by Pledgor will conflict
with, or constitute a violation or default under, any provision of any
applicable law or of any contract (including, without limitation, Pledgor's
certificate (or articles) of incorporation and bylaws (or regulations) or of any
other writing binding upon Pledgor in any manner.
4.4. Pledgor's principal place of business and the location where
Pledgor keeps records in respect of the Accounts are set forth on Schedule 4.4
hereto. Pledgor has places of business or maintains Collateral at the locations
set forth on Schedule 4.4 hereto. Pledgor's
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taxpayer identification number and organizational identification number (if any)
are set forth on Schedule 4.4 hereto.
4.5. Pledgor has furnished its most recent financial statements to
Administrative Agent and such financial statements are true and complete, have
been prepared in accordance with generally accepted accounting principles, in a
manner consistent with that used for the immediately preceding fiscal period,
and fairly present Pledgor's financial condition as of the date of such
financial statements and the results of Pledgor's operations for the period then
ending. Since such date, there has been no material adverse change in Pledgor's
financial condition, business and properties other than such changes, if any, as
have been specifically disclosed to Administrative Agent in writing.
4.6. At the execution and delivery hereof, except as permitted
pursuant to the Credit Agreement or as set forth on Schedule 4.6 hereto, (a)
there is no financing statement outstanding covering the Collateral, or any part
thereof, other than a financing statement in favor of Administrative Agent, for
the benefit of the Lenders; (b) none of the Collateral is subject to any
security interest or Lien of any kind other than the security interest herein
granted to Administrative Agent, for the benefit of the Lenders, or previously
granted to Administrative Agent, for the benefit of the Lenders; (c) the
Internal Revenue Service has not alleged the nonpayment or underpayment of any
tax by Pledgor or threatened to make any assessment in respect thereof; (d) upon
execution of this Agreement and the filing of the U.C.C. financing statements
being executed in connection herewith, Administrative Agent will have, for the
benefit of the Lenders, a valid and enforceable first security interest in the
Collateral; and (e) Pledgor has not entered into any contract or agreement that
would prohibit Administrative Agent and the Lenders from acquiring a security
interest, mortgage or other Lien on, or a collateral assignment of, any of the
property or assets of Pledgor.
4.7. Pledgor has received consideration that is the reasonable
equivalent value of the obligations and liabilities that Pledgor has incurred to
the Lenders. Pledgor is not insolvent, as defined in any applicable state or
federal statute, nor will Pledgor be rendered insolvent by the execution and
delivery of this Agreement to Administrative Agent or any other documents
executed and delivered to Administrative Agent or the Lenders in connection
herewith. Pledgor has not engaged, nor is Pledgor about to engage, in any
business or transaction for which the assets retained by it are or will be an
unreasonably small amount of capital, taking into consideration the obligations
to the Lenders incurred hereunder. Pledgor does not intend to, nor does it
believe that it will, incur debts beyond its ability to pay such debts as they
mature.
4.8. At the execution and delivery hereof, no Event of Default will
exist.
5. Insurance. Pledgor shall at all times maintain insurance upon
the Inventory, Equipment and other personal and real property in such form,
written by Pledgor, in such amounts, for such period, and against such risks as
may be reasonably acceptable to Administrative Agent, with provisions
satisfactory to Administrative Agent, for payment of all losses thereunder to
Administrative Agent, for the benefit of the Lenders, and Pledgor as its
interest may appear (loss payable endorsement in favor of Administrative Agent,
for the benefit of Lenders), and, if required by Administrative Agent, Pledgor
shall deposit the policies with Administrative Agent. Any such policies of
insurance shall provide for no fewer than thirty (30) days prior written notice
of cancellation to Administrative Agent. Any sums received by
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Administrative Agent, for the benefit of the Lenders, in payment of insurance
losses, returns, or unearned premiums under the policies may, at the option of
Administrative Agent, be held as Collateral or may be delivered to Pledgor, as
appropriate, for the purpose of replacing, repairing, or restoring the insured
property. Any sums received by Administrative Agent, for the benefit of Lenders,
in payment of insurance losses, returns, or unearned premiums under the policies
shall be applied in accordance with the Credit Agreement. In the event of
failure to provide such insurance as herein provided, Administrative Agent may,
at its option, provide such insurance and Pledgor shall pay to Administrative
Agent, upon demand, the cost thereof. Should Pledgor fail to pay such sum to
Administrative Agent upon demand, interest shall accrue thereon, from the date
of demand until paid in full. Within ten (10) days of any Lender's written
request, Pledgor shall furnish to such Lender such information about Pledgor's
insurance as such Lender may from time to time reasonably request, which
information shall be prepared in form and detail satisfactory to such Lender and
certified by a an officer of Pledgor.
6. Taxes and Other Pledgor Obligations. Pledgor shall pay in full
(a) all taxes, assessments and governmental charges and levies in accordance
with Section 8.4 of the Credit Agreement; (b) all of its wage obligations to its
employees in accordance with applicable law; (c) all obligations under the
Employees Retirement Income Security Act of 1974, as amended from time to time,
in accordance with applicable law; and (d) all of Pledgor's other obligations
calling for the payment of money in accordance with any agreement or law
applicable thereto.
7. Corporate Names and Location of Collateral. Pledgor shall not
change its name, unless, in each case, Pledgor shall provide Administrative
Agent with at least thirty (30) days prior written notice thereof. Pledgor shall
not use trade names, assumed names or fictitious names without giving
Administrative Agent at least thirty (30) days prior written notice thereof.
Pledgor shall also provide Administrative Agent with at least thirty (30) days
prior written notification of (a) any change in any location where any of the
Inventory or Equipment is maintained, and any new locations where any of the
Inventory or Equipment is to be maintained; (b) any change in the location of
the office where the records pertaining to the Accounts are kept; (c) the
location of any new places of business and the changing or closing of any of its
existing places of business; and (d) any change in Pledgor's chief executive
office or state of organization. In the event of any of the foregoing or as a
result of any change of applicable law with respect to the taking of security
interests, Pledgor hereby authorizes Administrative Agent to file new U.C.C.
financing statements (and Pledgor agrees that Administrative Agent may, where
applicable, execute and deliver the same as Pledgor's irrevocable
attorney-in-fact) describing the Collateral and otherwise in form and substance
sufficient for recordation wherever necessary or appropriate, as determined in
Administrative Agent's sole discretion, to perfect or continue perfected the
security interest of Administrative Agent, for the benefit of the Lenders, in
the Collateral, based upon such new places of business or names or such change
in applicable law or state of organization, and Pledgor shall pay all filing and
recording fees and taxes in connection with the filing or recordation of such
financing statements and shall immediately reimburse Administrative Agent
therefor if Administrative Agent pays the same. Such amounts not so paid or
reimbursed shall be Related Expenses hereunder.
8. Notice. Pledgor shall give Administrative Agent prompt written
notice if any Event of Default shall occur hereunder or if the Internal Revenue
Service shall allege the
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nonpayment or underpayment of any tax by Pledgor or threaten to make any
assessment in respect thereof.
9. Financial Records. Pledgor shall (a) maintain at all times
true and complete financial records and books of accounts in accordance with
generally accepted accounting principles consistently applied and, without
limiting the generality of the foregoing, prepare authentic invoices, numbered
consecutively in chronological order, for all of the Accounts; (b) render to
Administrative Agent, forthwith upon each request of Administrative Agent or any
Lender, such financial statements of Pledgor's financial condition and
operations, including but not limited to Pledgor's tax returns, and such reports
of the Accounts, as Administrative Agent or any Lender may from time to time
request; (c) give Administrative Agent prompt written notice whenever any
Account Debtor shall become in default in any manner or assert any defense or
offset and whenever any other event, omission, condition or thing having a
material adverse effect on any Account shall occur or arise; and (d) forward to
Administrative Agent, upon request of Administrative Agent or any Lender,
whenever made, (i) invoices, sales journals or other documents satisfactory to
Administrative Agent or such Lender, as the case may be, that summarize the
Accounts, certified by an officer of Pledgor, (ii) within the time specified by
Administrative Agent, an aging report of the Accounts then outstanding setting
forth, in such form and detail and with such representations and warranties as
Administrative Agent or such Lender may from time to time require, the unpaid
balances of all invoices billed respectively during that period and during each
of the three (3) next preceding periods, and certified by an officer of Pledgor,
and (iii) with respect to the Inventory and any other Collateral, such reports
and other documents that are satisfactory to Administrative Agent and the
Lenders.
10. Transfers, Liens and Modifications Regarding Collateral.
Except as specifically permitted in Section 14 hereof, Pledgor shall not,
without Administrative Agent's prior written consent, (a) sell, assign, transfer
or otherwise dispose of, or grant any option with respect to, or create, incur,
or permit to exist any pledge, lien, mortgage, hypothecation, security interest,
charge, option or any other encumbrance with respect to any of the Collateral,
or any interest therein, or any proceeds thereof, except for the lien and
security interest provided for by this Agreement and any security agreement
securing only Administrative Agent, for the benefit of the Lenders; or (b) enter
into or assent to any amendment, compromise, extension, release or other
modification of any kind of, or substitution for, any of the Accounts.
11. Collateral. Pledgor shall:
(a) at all reasonable times allow Administrative Agent by or
through any of its officers, agents, employees, attorneys or accountants to (i)
examine, inspect and make extracts from Pledgor's books and other records,
including, without limitation, the tax returns of Pledgor, (ii) arrange for
verification of the Accounts, under reasonable procedures, directly with Account
Debtors or by other methods, and (iii) examine and inspect the Inventory and
Equipment, wherever located;
(b) promptly furnish to Administrative Agent and the Lenders, upon
request, (i) additional statements and information with respect to the
Collateral, and all writings and information relating to or evidencing any of
the Accounts (including, without limitation, computer printouts or typewritten
reports listing the mailing addresses of all present Account Debtors), and (ii)
any other writings and information as Administrative Agent may request;
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(c) notify Administrative Agent in writing immediately upon the
creation of any Accounts with respect to which the Account Debtor is the United
States of America or any state, county, city or other governmental authority or
any department, agency or instrumentality of any of them, or any foreign
government or instrumentality thereof or any business that is located in a
foreign country;
(d) xxxx its books and records of Accounts to indicate the
security interest granted to Administrative Agent, for the benefit of the
Lenders, hereunder;
(e) immediately notify Administrative Agent in writing of any
information that Pledgor has or may receive with respect to the Collateral that
might in any manner materially and adversely affect the value thereof or the
rights of Administrative Agent or the Lenders with respect thereto;
(f) maintain the Equipment in good operating condition and repair,
ordinary wear and tear excepted, making all necessary replacements thereof so
that the value and operating efficiency thereof shall at all times be maintained
and preserved, and promptly inform Administrative Agent of any additions to or
deletions from the Equipment; and
(g) upon request of Administrative Agent, promptly take such
action and promptly make, execute, and deliver all such additional and further
items, deeds, assurances, instruments and any other writings as Administrative
Agent or the Lenders may from time to time deem necessary or appropriate,
including, without limitation, financing statements and chattel paper, to carry
into effect the intention of this Agreement or so as to completely vest in and
ensure to Administrative Agent and the Lenders their rights hereunder and in or
to the Collateral.
If certificates of title or applications for title are issued or outstanding
with respect to any of the Inventory or Equipment, Pledgor shall, upon request
of Administrative Agent, (i) execute and deliver to Administrative Agent a short
form security agreement, in form and substance satisfactory to Administrative
Agent, and (ii) deliver such certificate or application to Administrative Agent
and cause the interests of Administrative Agent, on behalf of the Lenders, to be
properly noted thereon. Pledgor hereby authorizes Administrative Agent or
Administrative Agent's designated agent (but without obligation by
Administrative Agent to do so) to incur Related Expenses (whether prior to,
upon, or subsequent to any Event of Default hereunder), and Pledgor shall
promptly repay, reimburse and indemnify Administrative Agent for any and all
Related Expenses. If Pledgor fails to keep and maintain the Equipment in good
operating condition, Administrative Agent may (but shall not be required to) so
maintain or repair all or any part of the Equipment and the cost thereof shall
be a Related Expense. All Related Expenses are payable to Administrative Agent
upon demand therefor.
12. Collections and Receipt of Proceeds by Pledgor. Prior to
exercise by Administrative Agent and the Required Lenders of their rights under
this Agreement, both (a) the lawful collection and enforcement of all of the
Accounts, and (b) the lawful receipt and retention by Pledgor of all Proceeds of
all of the Accounts and Inventory shall be as the agent of Administrative Agent
and the Lenders. Upon written notice to Pledgor from Administrative Agent after
the occurrence of an Event of Default, a Cash Collateral Account shall be opened
by Pledgor at the main office of Administrative Agent and all such lawful
collections of the Accounts and such Proceeds of the Accounts and Inventory
shall be remitted daily by Pledgor to
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Administrative Agent in the form in which they are received by Pledgor, either
by mailing or by delivering such collections and Proceeds to Administrative
Agent, appropriately endorsed for deposit in the Cash Collateral Account. In the
event that such notice is given to Pledgor from Administrative Agent, Pledgor
shall not commingle such collections or Proceeds with any of Pledgor's other
funds or property, but shall hold such collections and Proceeds separate and
apart therefrom upon an express trust for Administrative Agent, for the benefit
of the Lenders. In such case, Administrative Agent may, in its sole discretion,
and shall, at the request of the Required Lenders, at any time and from time to
time, apply all or any portion of the account balance in the Cash Collateral
Account as a credit against the Obligations. If any remittance shall be
dishonored, or if, upon final payment, any claim with respect thereto shall be
made against Administrative Agent on its warranties of collection,
Administrative Agent may charge the amount of such item against the Cash
Collateral Account or any other Deposit Account maintained by Pledgor with
Administrative Agent, and, in any event, retain the same and Pledgor's interest
therein as additional security for the Obligations. Administrative Agent may, in
its sole discretion, at any time and from time to time (provided that, after an
Event of Default has occurred, Administrative Agent shall only do so with the
consent of the Required Lenders), release funds from the Cash Collateral Account
to Pledgor for use in Pledgor's business. The balance in the Cash Collateral
Account may be withdrawn by Pledgor upon termination of this Agreement and
irrevocable payment in full of all of the Obligations. At Administrative Agent's
request, Pledgor shall cause all remittances representing collections and
Proceeds of Collateral to be mailed to a lock box in Cleveland, Ohio, to which
Administrative Agent shall have access for the processing of such items in
accordance with the provisions, terms, and conditions of Administrative Agent's
customary lock box agreement.
13. Collections and Receipt of Proceeds by Administrative Agent.
Administrative Agent shall at all times have the right, but not the duty, after
the occurrence of an Event of Default, to collect and enforce any or all of the
Accounts as Administrative Agent may deem advisable and, if Administrative Agent
shall at any time or times elect to do so in whole or in part, Administrative
Agent shall not be liable to Pledgor except for willful misconduct, if any.
Pledgor hereby constitutes and appoints Administrative Agent, or Administrative
Agent's designated agent, as Pledgor's attorney-in-fact to exercise, at any
time, all or any of the following powers which, being coupled with an interest,
shall be irrevocable until the complete and full payment of all of the
Obligations:
(a) to receive, retain, acquire, take, endorse, assign, deliver,
accept and deposit, in Administrative Agent's name or Pledgor's name, any and
all of Pledgor's cash, instruments, chattel paper, documents, Proceeds of
Accounts, Proceeds of Inventory, collection of Accounts, and any other writings
relating to any of the Collateral. Pledgor hereby waives presentment, demand,
notice of dishonor, protest, notice of protest and any and all other similar
notices with respect thereto, regardless of the form of any endorsement thereof.
Neither Administrative Agent nor the Lenders shall be bound or obligated to take
any action to preserve any rights therein against prior parties thereto;
(b) to transmit to Account Debtors, on any or all of the Accounts,
notice of assignment to Administrative Agent, for the benefit of the Lenders,
thereof and the security interest of Administrative Agent, for the benefit of
the Lenders, and to request from such
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Account Debtors at any time, in Administrative Agent's name or in Pledgor's
name, information concerning the Accounts and the amounts owing thereon;
(c) to transmit to purchasers of any or all the Inventory, notice
of the security interest of Administrative Agent, for the benefit of the
Lenders, and to request from such purchasers at any time, in Administrative
Agent's name or in Pledgor's name, information concerning the Inventory and the
amounts owing thereon by such purchasers;
(d) to notify and require Account Debtors on the Accounts and
purchasers of the Inventory to make payment of their indebtedness directly to
Administrative Agent, for the benefit of the Lenders;
(e) to enter into or assent to such amendment, compromise,
extension, release or other modification of any kind of, or substitution for,
the Accounts, or any thereof, as Administrative Agent, in its sole discretion,
may deem to be advisable;
(f) to enforce the Accounts or any thereof, or any other
Collateral, by suit or otherwise, to maintain any such suit or other proceeding
in Administrative Agent's own name or in Pledgor's name, and to withdraw any
such suit or other proceeding. Pledgor agrees to lend every assistance requested
by Administrative Agent in respect of the foregoing, all at no cost or expense
to Administrative Agent or the Lenders and including, without limitation, the
furnishing of such witnesses and of such records and other writings as
Administrative Agent may require in connection with making legal proof of any
Account. Pledgor agrees to reimburse Administrative Agent and the Lenders in
full for all court costs and attorneys' fees and every other cost, expense or
liability, if any, incurred or paid by Administrative Agent or the Lenders in
connection with the foregoing, which obligation of Pledgor shall constitute
Obligations, shall be secured by the Collateral and shall bear interest until
paid; and
(g) to accept all collections in any form relating to the
Collateral, including remittances that may reflect deductions, and to deposit
the same, into the Cash Collateral Account or, at the option of Administrative
Agent, to apply them as a payment on the Obligations.
14. Use of Inventory and Equipment. Until an Event of Default
shall occur, Pledgor may (a) retain possession of and use the Inventory and
Equipment in any lawful manner not inconsistent with this Agreement or with the
terms, conditions, or provisions of any policy of insurance thereon; (b) sell or
lease the Inventory in the ordinary course of business, provided, however, that
a sale or lease in the ordinary course of business does not include a transfer
in partial or total satisfaction of any indebtedness; and (c) use and consume
raw materials or supplies, the use and consumption of which are necessary in
order to carry on Pledgor's business.
15. Returned or Repossessed Property. If any merchandise or other
property the subject of any Account shall for any reason be returned to or
repossessed by Pledgor in any manner, Administrative Agent shall have, for the
benefit of the Lenders, a security interest in such property as security for the
Obligations. Pledgor shall receive the same in trust for Administrative Agent,
and upon Administrative Agent's request whenever made, segregate such property
and label the same as being held for Administrative Agent and immediately give
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Administrative Agent a detailed written notice of such return or repossession
and the reason therefor. Pledgor further agrees that, upon demand from
Administrative Agent, Pledgor shall forthwith pay to Administrative Agent, in
cash, an amount equal to each Account relating to any returned or repossessed
property, provided that Administrative Agent shall thereupon release such
Account and said property to Pledgor and apply such payment to the Obligations
in such order and by such division as Administrative Agent shall deem advisable.
16. Default and Remedies.
16.1. Any of the following shall constitute an Event of Default
under this Agreement: (a) an Event of Default, as defined in the Credit
Agreement, shall occur under the Credit Agreement; (b) any representation,
warranty or statement made by Pledgor in or pursuant to this Agreement or in any
other writing received by Administrative Agent or the Lenders in connection with
the Obligations shall be false or erroneous in any material respect; or (c)
Pledgor shall fail or omit to perform or observe any agreement made by Pledgor
in or pursuant to this Agreement or in any other writing received by
Administrative Agent or the Lenders pursuant hereto.
16.2. Upon the occurrence of an Event of Default hereunder, and at
all times thereafter, Administrative Agent and the Lenders shall have the rights
and remedies of a secured party under the Ohio Revised Code as in effect from
time to time, in addition to the rights and remedies of a secured party provided
elsewhere within this Agreement or in any other Credit Document or otherwise
provided in law or equity. Administrative Agent may require Pledgor to assemble
the Collateral, which Pledgor agrees to do, and make it available to
Administrative Agent at a reasonably convenient place to be designated by
Administrative Agent. Administrative Agent may, with or without notice to or
demand upon Pledgor and with or without the aid of legal process, make use of
such force as may be necessary to enter any premises where the Collateral, or
any thereof, may be found and to take possession thereof (including anything
found in or on the Collateral that is not specifically described in this
Agreement, each of which findings shall be considered to be an accession to and
a part of the Collateral) and for that purpose may pursue the Collateral
wherever the same may be found, without liability for trespass or damage caused
thereby to Pledgor. After any delivery or taking of possession of the
Collateral, or any thereof, pursuant to this Agreement, then, with or without
resort to Pledgor or any other Person or property, all of which Pledgor hereby
waives, and upon such terms and in such manner as Administrative Agent may deem
advisable, Administrative Agent, in its discretion, may sell, assign, transfer
and deliver any of the Collateral at any time, or from time to time. No prior
notice need be given to Pledgor or to any other Person in the case of any sale
of Collateral that Administrative Agent determines to be perishable or to be
declining speedily in value or that is customarily sold in any recognized
market, but in any other case Administrative Agent shall give Pledgor no fewer
than ten (10) days prior notice of either the time and place of any public sale
of the Collateral or of the time after which any private sale or other intended
disposition thereof is to be made. Pledgor waives advertisement of any such sale
and (except to the extent specifically required by the preceding sentence)
waives notice of any kind in respect of any such sale. At any such public sale,
Administrative Agent or any Lender may purchase the Collateral, or any part
thereof, free from any right of redemption, all of which rights Pledgor hereby
waives and releases. After deducting all Related Expenses, and after paying all
claims, if any, secured by liens having precedence over this Agreement,
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Administrative Agent may apply the net proceeds of each such sale to or toward
the payment of the Obligations, whether or not then due, in such order and by
such division as Administrative Agent in its sole discretion may deem advisable.
Any excess, to the extent permitted by law, shall be paid to Pledgor, and the
obligors on the Obligations shall remain liable for any deficiency. In addition,
Administrative Agent shall at all times have the right to obtain new appraisals
of Pledgor or the Collateral, the cost of which shall be paid by Pledgor.
17. Interpretation. Each right, power or privilege specified or
referred to in this Agreement is cumulative and in addition to and not in
limitation of any other rights, powers and privileges that Administrative Agent
or the Lenders may otherwise have or acquire by operation of law, by contract or
otherwise. No course of dealing by Administrative Agent or the Lenders in
respect of, nor any omission or delay by Administrative Agent or the Lenders in
the exercise of, any right, power or privilege shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude any other or further exercise thereof or of any other right,
power or privilege, as Administrative Agent and the Lenders may exercise each
such right, power or privilege either independently or concurrently with others
and as often and in such order as Administrative Agent and the Required Lenders
may deem expedient. No waiver, consent or other agreement shall be deemed to
have been made by Administrative Agent or the Lenders or be binding upon
Administrative Agent or the Lenders in any case unless specifically granted by
Administrative Agent in writing, and each such writing shall be strictly
construed. If, at any time, one or more provisions of this Agreement is or
becomes invalid, illegal or unenforceable in whole or in part, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. Pledgor hereby authorizes Administrative Agent to
file financing statements with respect to the Collateral, including financing
statements that describe the Collateral as "all assets" or "all personal
property". A carbon, photographic, or other reproduction of this Agreement may
be used as a financing statement. The captions to sections herein are inserted
for convenience only and shall be ignored in interpreting the provisions of this
Agreement.
18. Notice. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile transmission or cable communication)
and mailed, telegraphed, telexed, transmitted, cabled or delivered, if to
Pledgor, at the address specified on the signature page of this Agreement, if to
any Lender, at its address specified for such Lender on Annex I to the Credit
Agreement, and if to Administrative Agent, at the Notice Office, as defined in
the Credit Agreement; or at such other address as shall be designated by any
party in a written notice to the other parties hereto. All such notices and
communications shall be mailed, telegraphed, telexed, telecopied, or cabled or
sent by overnight courier, and shall be effective when received.
19. Governing Law; Submission to Jurisdiction. The provisions of
this Agreement and the respective rights and duties of Pledgor, Administrative
Agent and the Lenders hereunder shall be governed by and construed in accordance
with Ohio law, without regard to principles of conflict of laws. Pledgor hereby
irrevocably submits to the non-exclusive jurisdiction of any Ohio state or
federal court sitting in Cleveland, Ohio, over any action or proceeding arising
out of or relating to this Agreement, the Credit Agreement, any Credit Document,
or any other document, instrument or agreement executed in connection with any
of the foregoing, and Pledgor hereby irrevocably agrees that all claims in
respect of such action or proceeding may be
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heard and determined in such Ohio state or federal court. Pledgor hereby
irrevocably waives, to the fullest extent permitted by law, any objection it may
now or hereafter have to the laying of venue in any action or proceeding in any
such court as well as any right it may now or hereafter have to remove such
action or proceeding, once commenced, to another court on the grounds of FORUM
NON CONVENIENS or otherwise. Pledgor agrees that a final, non-appealable
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
20. Successors and Assigns. This Agreement shall be binding upon
Pledgor and Pledgor's successors and assigns and shall inure to the benefit of
and be enforceable and exercisable by Administrative Agent on behalf of and for
the benefit of the Lenders and their respective successors and assigns.
21. Termination. At such time as the Obligations shall have been
irrevocably paid in full, the Commitment, as defined in the Credit Agreement,
terminated, and the Credit Agreement terminated and not replaced by any other
credit facility with Administrative Agent and the Lenders, Pledgor shall have
the right to terminate this Agreement. Upon written request of Pledgor,
Administrative Agent shall promptly execute and deliver to Pledgor appropriate
termination statements.
22. Entire Agreement. This Agreement integrates all of the terms
and conditions with respect to the Collateral and supersedes all oral
representations and negotiations and prior writings with respect to the subject
matter hereof.
[Remainder of page intentionally left blank.]
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23. JURY TRIAL WAIVER. PLEDGOR, ADMINISTRATIVE AGENT AND THE
LENDERS WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG PLEDGOR, ANY ELIGIBLE
SUBSIDIARY, ADMINISTRATIVE AGENT AND THE LENDERS, OR ANY THEREOF, ARISING OUT
OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
OR THE TRANSACTIONS RELATED THERETO.
Executed as of the _____ day of August, 2001 at Cleveland, Ohio.
Address: _________________________ [__________________________]
_________________________
_________________________ By:___________________________
Name:_________________________
Title:________________________
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Schedule 4.4
(Locations)
Principal Place of Business:
______________________________
______________________________
______________________________
Other Collateral Locations:
______________________________
______________________________
______________________________
______________________________
______________________________
______________________________
Taxpayer Identification Number:
______________________________
Organizational Identification Number:
______________________________
(If none, please indicate "none")
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Schedule 4.6
(Existing Liens)
16
