Exhibit 10.3
EXECUTION VERSION
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
Dated as of April 11, 2005
among
XXXXX LEMMERZ INTERNATIONAL, INC.
and
HLI OPERATING COMPANY, INC.
as Grantors
and
Each Other Grantor
From Time to Time Party Hereto
and
CITICORP NORTH AMERICA, INC.
as First Lien Agent
and
CITICORP NORTH AMERICA, INC.
as Second Lien Agent
and
CITICORP NORTH AMERICA, INC.
as Collateral Agent
and
XXXXXX COMMERCIAL PAPER INC.
as Syndication Agent
WEIL, GOTSHAL & XXXXXX LLP
000 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000-0000
THIS AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT IS SUBJECT TO THE
TERMS AND PROVISIONS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT,
DATED AS OF APRIL 11, 2005 (AS SUCH AGREEMENT MAY BE AMENDED, AMENDED AND
RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME, THE "INTERCREDITOR
AGREEMENT"), AMONG CITICORP NORTH AMERICA, INC., AS ADMINISTRATIVE AGENT FOR
THE FIRST LIEN LENDERS, CITICORP NORTH AMERICA, INC., AS ADMINISTRATIVE AGENT
FOR THE TERM C LENDERS, CITICORP NORTH AMERICA, INC., AS COLLATERAL AGENT FOR
THE SECURED PARTIES, HLI OPERATING COMPANY, INC., XXXXX LEMMERZ INTERNATIONAL,
INC. AND EACH OTHER GRANTOR.
THIS AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT (this
"Agreement"), dated as of April 11, 2005, by HLI OPERATING COMPANY, INC.
("Borrower"), XXXXX LEMMERZ INTERNATIONAL, INC. ("Holdings") and each of the
other entities listed on the signature pages hereof or that becomes a party
hereto pursuant to Section 7.11 (Additional Grantors) (each a "Grantor" and,
collectively, the "Grantors"), in favor of Citicorp North America, Inc.
("CNAI"), as collateral agent for the Senior Secured Parties, the Junior
Secured Parties and the Secured Parties (in such capacities, the "Collateral
Agent"), amends and restates in its entirety the Existing Pledge and Security
Agreement (as defined below). All capitalized terms used herein and not
otherwise defined herein shall have the respective meanings given to such
terms in the Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Borrower, Holdings, the lenders and issuers party
thereto from time to time, CNAI as administrative agent (in such capacity,
"Existing Administrative Agent"), XXXXXX COMMERCIAL PAPER INC., as syndication
agent (in such capacity, the "Syndication Agent") and GENERAL ELECTRIC CAPITAL
CORPORATION, as documentation agent (in such capacity, the "Documentation
Agent") are parties to the Credit Agreement, dated as of June 3, 2003 (as
amended, modified or supplemented prior to the date hereof, the "Existing
Credit Agreement"); and
WHEREAS, the Borrower desires, inter alia, to establish a new term
loan facility, in an aggregate principal amount of up to $150,000,000, secured
by a second-priority lien on the Collateral and has requested an amendment and
restatement of the Existing Credit Agreement; and
WHEREAS, the Borrower, Holdings, the lenders and issuers party
thereto from time to time, CNAI as administrative agent for the First Lien
Lenders (in such capacity, the "First Lien Agent"), as administrative agent
for the Term C Lenders (in such capacity, the "Second Lien Agent") and as
Collateral Agent, the Syndication Agent and the Documentation Agent have
entered into the Amended and Restated Credit Agreement, dated as of April 11,
2005 (as amended, modified, restated or supplemented, the "Credit Agreement")
which amends and restates the Existing Credit Agreement in its entirety; and
WHEREAS, it is a condition precedent to the effectiveness of the
amendment and restatement of the Credit Agreement that the Grantors shall have
executed and delivered this Agreement to the Collateral Agent; and
WHEREAS, this Agreement, on the terms and subject to the conditions
set forth herein, shall amend and restate, in its entirety, the pledge and
security agreement, dated as of June 3, 2003 (as amended prior to the date
hereof, the "Existing Pledge and Security Agreement") entered into by the
Grantors in favor of the Existing Administrative Agent; and
WHEREAS, (i) each Grantor hereby reaffirms the Liens granted pursuant
to the Loan Documents (as defined in the Existing Credit Agreement) to the
Existing Administrative Agent for the benefit of the Secured Parties (as
defined in the Existing Credit Agreement), which Liens shall continue in full
force and effect during the term of this Agreement and any renewals thereof
and shall continue to secure the Secured Obligations and (ii) from and after
the Effective Date, the Existing Pledge and Security Agreement shall be of no
further force or effect, except to evidence the obligations incurred, the
representations and warranties made, and the actions or omissions performed or
required to be performed, thereunder prior to the Effective Date; and
WHEREAS, each Grantor will receive substantial direct and indirect
benefits from the making of the Loans, the issuance of the Letters of Credit
and the granting of the other financial accommodations to the Borrower under
the Credit Agreement; and
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders, the Issuers, the Administrative Agents and the Collateral Agent to
enter into the Credit Agreement and to induce the Lenders and the Issuers to
make their respective extensions of credit to the Borrower thereunder, each
Grantor hereby agrees with the Collateral Agent as follows:
ARTICLE I DEFINED TERMS
Section 1.1 Definitions
(a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein have the meanings given to them in the Credit
Agreement.
(b) Terms used herein without definition that are defined in the UCC
have the meanings given to them in the UCC, including the following terms
(which are capitalized herein):
"Account Debtor"
"Account"
"Chattel Paper"
"Commercial Tort Claim"
"Commodity Account"
"Commodity Intermediary"
"Deposit Account"
"Document"
"Entitlement Holder"
"Entitlement Order"
"Equipment"
"Financial Asset"
"General Intangible"
"Instrument"
"Inventory"
"Investment Property"
"Letter-of-Credit Right"
"Proceeds"
"Securities Account"
"Securities Intermediary"
"Security"
"Security Entitlement"
(c) The following terms shall have the following meanings:
"Additional Pledged Collateral" means all shares of, limited or
general partnership interests in, and limited liability company interests in,
and all securities convertible into, and warrants, options and other rights to
purchase or otherwise acquire, stock of, either (i) any Person that, after the
date of this Agreement, as a result of any occurrence, becomes a direct
Subsidiary of any Grantor or (ii) any issuer of Pledged Stock, any Partnership
or any LLC that is acquired by any Grantor after the date hereof; all
certificates or other instruments representing any of the foregoing; all
Security Entitlements of any Grantor in respect of any of the foregoing; all
additional indebtedness from time to time owed to any Grantor by any obligor
on the Pledged Notes and the instruments evidencing such indebtedness; and all
interest, cash, instruments and other property or Proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any of the foregoing. Additional Pledged Collateral may be General Intangibles
or Investment Property.
"Agreement" means this Amended and Restated Pledge and Security
Agreement.
"Approved Deposit Account" means a Deposit Account that is the
subject of an effective Deposit Account Control Agreement and that is
maintained by any Grantor with a Deposit Account Bank. "Approved Deposit
Account" includes all monies on deposit in a Deposit Account and all
certificates and instruments, if any, representing or evidencing such Deposit
Account.
"Approved Securities Intermediary" means a Securities Intermediary or
Commodity Intermediary selected or approved by the Collateral Agent and with
respect to which a Grantor has delivered to the Collateral Agent an executed
Control Account Agreement.
"Cash Collateral Account" means any Deposit Account or Securities
Account established by the Collateral Agent as provided in Section 2.3 (Cash
Collateral Accounts) in which cash and Cash Equivalents may from time to time
be on deposit or held therein as provided in Section 5.2 (Accounts and
Payments in Respect of General Intangibles) or 5.4 (Proceeds to be Turned Over
To Collateral Agent) or the Credit Agreement.
"Collateral" has the meaning specified in Section 2.1 (Collateral).
"Collateral Agent" shall include, in addition to the Collateral Agent
referred to in the preamble hereto, any successors and assigns to the
Collateral Agent permitted under the Intercreditor Agreement and means (i) for
purposes of Section 2.2(a) (Grants of Security Interests in the Collateral),
the "Collateral Agent" in its separate individual capacity as collateral agent
for the benefit of the Senior Secured Parties with respect to the Senior
Secured Obligations, (ii) for purposes of Section 2.2(b) (Grants of Security
Interests in the Collateral), the "Collateral Agent" in its separate
individual capacity as collateral agent for the benefit of the Junior Secured
Parties with respect to the Junior Secured Obligations and (iii) for purposes
of all other provisions in this Agreement, the "Collateral Agent" (x) in its
separate individual capacity as collateral agent for the benefit of the Senior
Secured Parties with respect to the Senior Secured Obligations, (y) in its
separate individual capacity as collateral agent for the benefit of the Junior
Secured Parties with respect to the Junior Secured Obligations and (z) in its
separate individual capacity as collateral agent for the benefit of the
Secured Parties with respect to the Secured Obligations.
"Control Account" means a Securities Account or Commodity Account
that is the subject of an effective Control Account Agreement and that is
maintained by any Grantor with an Approved Securities Intermediary. "Control
Account" includes all Financial Assets held in a Securities Account or a
Commodity Account and all certificates and instruments, if any, representing
or evidencing the Financial Assets contained therein.
"Control Account Agreement" means a letter agreement, substantially
in the form of Annex 2 (Form of Control Account Agreement) (with such changes
as may be agreed to by the Administrative Agents), executed by the relevant
Grantor, the Collateral Agent and the relevant Approved Securities
Intermediary, or otherwise in form and substance reasonably satisfactory to
the Administrative Agents.
"Copyright License" means any agreement whether written or oral,
providing for the grant by or to any Grantor of any right to use any
copyright.
"Copyrights" means (a) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished, all
registrations and recordings thereof and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any foreign counterparts thereof, and (b)
the right to obtain all renewals thereof.
"Deposit Account Bank" means a financial institution selected or
approved by the Collateral Agent and with respect to which a Grantor has
delivered to the Collateral Agent an executed Deposit Account Control
Agreement.
"Deposit Account Control Agreement" means a letter agreement,
substantially in the form of Annex 1 (Form of Deposit Account Control
Agreement) (with such changes as may be agreed to by the Administrative
Agents), executed by the Grantor, the Collateral Agent and the relevant
Deposit Account Bank, or otherwise in form and substance reasonably
satisfactory to the Administrative Agents.
"Excluded Property" means (i) any permit, lease, license, contract or
other agreement held by any Grantor that validly prohibits the creation by
such Grantor of a Lien thereon, or any permit, lease, license contract or
other agreement held by any Grantor to the extent that any Requirement of Law
applicable thereto prohibits the creation of a Lien thereon, but only, in each
case, to the extent, and for so long as, such prohibition is not removed,
terminated or rendered unenforceable or otherwise deemed ineffective by the
UCC or any other Requirement of Law; (ii) any Equipment owned by any Grantor
that is subject to a purchase money Lien or a Capital Lease Obligation if the
contract or other agreement in which such Lien is granted (or the
documentation providing for such Capital Lease Obligation) prohibits or
requires the consent of any Person other than the Borrower and its
Subsidiaries as a condition to the creation of any other Lien on such
Equipment; and (iii) any of the outstanding capital stock of a Foreign Entity
in excess of 65% of the voting power of all classes of capital stock of such
Foreign Entity entitled to vote.
"Foreign Entity" means, with respect to any Grantor, any corporation,
partnership, limited liability company or other business entity (i) which is
organized under the laws of a jurisdiction other than a state of the United
States or the District of Columbia and (ii) of which an aggregate of more than
50% of the outstanding classes of capital stock entitled to vote is, at the
time, owned by such Grantor or one or more Grantors.
"Intellectual Property" means, collectively, all rights, title and
interest of any Grantor relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks,
Trademark Licenses and trade secrets, and all rights to xxx at law or in
equity for any infringement or other impairment thereof, including the right
to receive all proceeds and damages therefrom.
"Intercompany Note" means any promissory note evidencing loans made
by any Grantor to any of its Subsidiaries or another Grantor.
"Junior Liens" has the meaning specified in Section 2.2(b) (Grants of
Security Interests in Collateral).
"Junior Secured Obligations" means, in the case of the Borrower, the
Obligations arising under or in respect of the Term C Facility, and, in the
case of any other Grantor, the obligations of such Grantor related thereto
under the Guaranty and the other Loan Documents to which it is a party.
"Junior Secured Parties" means the Term C Lenders, the Second Lien
Agent, the Collateral Agent and any other holder of any Junior Secured
Obligation.
"LLC" means each limited liability company in which a Grantor has an
interest, including those set forth on Schedule 2 (Pledged Collateral).
"LLC Agreement" means each operating agreement with respect to an
LLC, as each agreement has heretofore been, and may hereafter be, amended,
restated, supplemented or otherwise modified from time to time.
"Material Intellectual Property" means Intellectual Property owned by
or licensed to a Grantor and material to such Grantor's business.
"Partnership" means each partnership in which a Grantor has an
interest, including those set forth on Schedule 2 (Pledged Collateral).
"Partnership Agreement" means each partnership agreement governing a
Partnership, as each such agreement has heretofore been, and may hereafter be,
amended, restated, supplemented or otherwise modified.
"Patents" means (a) all letters patent of the United States, any
other country or any political subdivision thereof and all reissues and
extensions thereof, (b) all applications for letters patent of the United
States or any other country and all divisions, continuations and
continuations-in-part thereof and (c) all rights to obtain any reissues or
extensions of the foregoing.
"Patent License" means any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to manufacture, use,
import, sell or offer for sale any invention covered in whole or in part by a
Patent.
"Pledged Collateral" means, collectively, the Pledged Notes, the
Pledged Stock, the Pledged Partnership Interests, the Pledged LLC Interests,
any other Investment Property of any Grantor in excess of $300,000, all
certificates or other instruments representing any of the foregoing and all
Security Entitlements of any Grantor in respect of any of the foregoing.
Pledged Collateral may be General Intangibles (excluding Intellectual
Property) or Investment Property.
"Pledged LLC Interests" means all right, title and interest of any
Grantor as a member of any LLC and all right, title and interest of any
Grantor in, to and under any LLC Agreement to which it is a party.
"Pledged Notes" means all right, title and interest of any Grantor in
the Instruments evidencing all Indebtedness owed to such Grantor, including
all Indebtedness described on Schedule 2 (Pledged Collateral), issued by the
obligors named therein.
"Pledged Partnership Interests" means all right, title and interest
of any Grantor as a limited or general partner in all Partnerships and all
right, title and interest of any Grantor in, to and under any Partnership
Agreements to which it is a party.
"Pledged Stock" means the shares of capital stock owned by each
Grantor, including all shares of capital stock listed on Schedule 2 (Pledged
Collateral); provided, however, that only the outstanding capital stock of a
subsidiary that is not a Domestic Subsidiary possessing up to but not
exceeding 65% of the voting power of all classes of capital stock of such
controlled foreign corporation entitled to vote shall be deemed to be pledged
hereunder.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Liens" has the meaning specified in Section 2.2(a) (Grants of
Security Interests in Collateral).
"Senior Secured Obligations" means all Secured Obligations (other
than the Junior Secured Obligations).
"Senior Secured Parties" means the First Lien Lenders, the First Lien
Agent, the Collateral Agent and any other holder of any Senior Secured
Obligation.
"Trademark License" means any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any
Trademark.
"Trademarks" means (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade dress, service
marks, logos and other source or business identifiers, and, in each case, all
goodwill associated therewith, whether now existing or hereafter adopted or
acquired, all registrations and recordings thereof and all applications in
connection therewith, in each case whether in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, and (b) the right to
obtain all renewals thereof.
"UCC" means the Uniform Commercial Code as from time to time in
effect in the State of New York; provided, however, that, in the event that,
by reason of mandatory provisions of law, any of the attachment, perfection or
priority of the Collateral Agent's security interests in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "UCC" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
"Vehicles" means all vehicles covered by a certificate of title law
of any state.
Section 1.2 Certain Other Terms
(a) In this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding" and the
word "through" means "to and including."
(b) The terms "herein," "hereof," "hereto" and "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
Article, Section, subsection or clause in this Agreement.
(c) References herein to an Annex, Schedule, Article, Section,
subsection or clause refer to the appropriate Annex or Schedule to, or
Article, Section, subsection or clause in this Agreement.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) Where the context requires, provisions relating to any
Collateral, when used in relation to a Grantor, shall refer to such Grantor's
Collateral or any relevant part thereof.
(f) Any reference in this Agreement to a Loan Document shall include
all annexes, appendices, exhibits and schedules thereto, and, unless
specifically stated otherwise all amendments, restatements, supplements or
other modifications thereto, and as the same may be in effect at any time such
reference becomes operative.
(g) The term "including" means "including without limitation" except
when used in the computation of time periods.
(h) The terms "Lender," "Issuer," "Collateral Agent," "Administrative
Agent," "First Lien Agent," "Second Lien Agent," and "Secured Party" include
their respective successors.
(i) References in this Agreement to any statute shall be to such
statute as amended or modified and in effect from time to time.
ARTICLE II GRANT OF SECURITY INTEREST
Section 2.1 Collateral
For the purposes of this Agreement, all of the following property now
owned or at any time hereafter acquired by a Grantor or in which a Grantor now
has or at any time in the future may acquire any right, title or interests is
collectively referred to as the "Collateral":
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Inventory;
(i) all Investment Property;
(j) all Letter-of-Credit Rights;
(k) all Vehicles;
(l) the Commercial Tort Claims described on Schedule 7 (Commercial
Tort Claims) and on any supplement thereto received by the Collateral Agent
pursuant to Section 4.12 (Notice of Commercial Tort Claims);
(m) all books and records pertaining to the other property described
in this Section 2.1;
(n) all other goods and personal property of any Grantor, whether
tangible or intangible and wherever located;
(o) all property of any Grantor held by the Collateral Agent or any
other Secured Party, including all property of every description, in the
possession or custody of or in transit to the Collateral Agent or such Secured
Party for any purpose, including safekeeping, collection or pledge, for the
account of such Grantor or as to which such Grantor may have any right or
power; and
(p) to the extent not otherwise included, all Proceeds.
Section 2.2 Grants of Security Interests in Collateral
(a) Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Senior Secured Obligations of such Grantor,
hereby collaterally assigns, mortgages, pledges and hypothecates to the
Collateral Agent for the benefit of the Senior Secured Parties, and grants to
the Collateral Agent for the benefit of the Senior Secured Parties a lien on
and security interest in, all of its right, title and interest in, to and
under the Collateral of such Grantor. The foregoing grants of security
interests shall not include a security interest in Excluded Property;
provided, however, such "Excluded Property" shall not include any Proceeds,
substitutions or replacements of Excluded Property (unless such Proceeds,
substitutions or replacements would constitute Excluded Property); provided,
however, that if and when any Collateral shall cease to be Excluded Property,
the Collateral Agent shall be deemed to have, and all times after the date
hereof to have had, a security interest in such Collateral. The continuing
security interest and Lien granted above in this Section 2.2(a) (Grants of
Security Interests in Collateral) by the Grantors to the Collateral Agent for
the benefit of the Senior Secured Parties are referred to as the "Senior
Liens."
(b) Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Junior Secured Obligations of such Grantor,
hereby collaterally assigns, mortgages, pledges and hypothecates to the
Collateral Agent for the benefit of the Junior Secured Parties, and grants to
the Collateral Agent for the benefit of the Junior Secured Parties a lien on
and security interest in, all of its right, title and interest in, to and
under the Collateral of such Grantor. The foregoing grants of security
interests shall not include a security interest in Excluded Property;
provided, however, such "Excluded Property" shall not include any Proceeds,
substitutions or replacements of Excluded Property (unless such Proceeds,
substitutions or replacements would constitute Excluded Property); provided,
however, that if and when any Collateral shall cease to be Excluded Property,
the Collateral Agent shall be deemed to have, and all times after the date
hereof to have had, a security interest in such Collateral. The continuing
security interest and Lien granted above in this Section 2.2(b) (Grants of
Security Interests in Collateral) by the Grantors to the Collateral Agent for
the benefit of the Junior Secured Parties are referred to as the "Junior
Liens." The Senior Liens shall take priority over the Junior Liens and the
Junior Liens shall be and are hereby rendered subordinate and junior in
priority to the Senior Liens on such Collateral.
(c) Notwithstanding anything to the contrary contained in this
Agreement, the Liens granted above, and the relative priority thereof, shall
be as set forth in, and subject to the terms and conditions of, the
Intercreditor Agreement.
Section 2.3 Cash Collateral Accounts
The Collateral Agent has established a Deposit Account at Citibank,
N.A., designated as "Citicorp North America, Inc. - HLI Operating Company,
Inc. Concentration Account". The Collateral Agent may establish one or more
other Deposit Accounts and one or more Securities Accounts with such
depositaries and Securities Intermediaries as it in its sole discretion shall
determine. Each such account shall be in the name of the Collateral Agent (but
may also have words referring to the Borrower and the account's purpose). The
Borrower agrees that each such account shall be under the sole dominion and
control of the Collateral Agent. The Collateral Agent shall be the Entitlement
Holder with respect to each such Securities Account and the only Person
authorized to give Entitlement Orders with respect thereto. Without limiting
the foregoing, funds on deposit in any Cash Collateral Account may be invested
in Cash Equivalents at the direction of the Collateral Agent and, except
during the continuance of an Event of Default, the Collateral Agent agrees
with the Borrower to issue Entitlement Orders for such investments in Cash
Equivalents as requested by the Borrower; provided, however, that the
Collateral Agent shall not have any responsibility for, or bear any risk of
loss of, any such investment or income thereon. Neither the Borrower nor any
other Loan Party or Person claiming on behalf of or through the Borrower or
any other Loan Party shall have any right to demand payment of any funds held
in any Cash Collateral Account at any time prior to the termination of all
outstanding Letters of Credit and the payment in full of all then outstanding
and payable monetary Obligations. Except following notice from the Collateral
Agent to the Borrower during the continuance of an Event of Default the
Collateral Agent agrees to cause any funds on deposit in a Cash Collateral
Account to be paid at the written direction of the Borrower.
ARTICLE III REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuers, the Collateral Agent and the
Administrative Agents to enter into the Credit Agreement, each Grantor hereby
represents and warrants each of the following to the Collateral Agent, for the
benefit of the Secured Parties:
Section 3.1 Title; No Other Liens
Except for the Liens granted to the Collateral Agent pursuant to this
Agreement and the other Liens permitted to exist on the Collateral under the
Credit Agreement, such Grantor is the record and beneficial owner of the
Pledged Collateral pledged by it hereunder constituting Instruments or
certificated securities, is the Entitlement Holder of all such Pledged
Collateral constituting Investment Property held in a Securities Account and
has rights in or the power to transfer each other item of Collateral in which
a Lien is granted by it hereunder, free and clear of any Lien.
Section 3.2 Perfection and Priority
The security interests granted pursuant to this Agreement shall
constitute valid and continuing perfected security interests in favor of the
Collateral Agent in the Collateral for which perfection is governed by the UCC
or filing with the United States Copyright Office upon (i) the completion of
the filings and other actions specified on Schedule 3 (Filings) (which, in the
case of all filings and other documents referred to on such schedule, have
been delivered to the Collateral Agent in completed and duly executed form),
(ii) the delivery to the Collateral Agent of all Collateral consisting of
Instruments and certificated securities, in each case properly endorsed for
transfer to the Collateral Agent or in blank, (iii) the execution of Control
Account Agreements with respect to Investment Property not in certificated
form, (iv) the execution of Deposit Account Control Agreements with respect to
Deposit Accounts (other than the Cash Collateral Account) required to be
subject to a perfected security interest hereunder and (v) all appropriate
filings having been made with the United States Copyright Office. With the
exception of the subordination of the Junior Liens to the Senior Liens
pursuant to this Agreement and the Intercreditor Agreement, such security
interests shall be prior to all other Liens on the Collateral except for
Customary Permitted Liens having priority over the Collateral Agent's Lien by
operation of law or otherwise as permitted under the Credit Agreement.
Section 3.3 Name; Jurisdiction of Organization; Chief Executive
Office
(a) Except as set forth on Schedule 1 (State of Incorporation;
Principal Executive Office), within the five-year period preceding the date
hereof such Grantor has not had, or operated in any jurisdiction, under any
trade name, fictitious name or other name other than its legal name.
(b) On the date hereof such Grantor's jurisdiction of organization,
organizational identification number, if any, and the location of such
Grantor's chief executive office or sole place of business is specified on
Schedule 1 (State of Incorporation; Principal Executive Office).
Section 3.4 Inventory and Equipment
On the date hereof, such Grantor's Inventory and Equipment (other
than mobile goods and Inventory or Equipment in transit) are kept at the
locations listed on Schedule 4 (Location of Inventory and Equipment).
Section 3.5 Pledged Collateral
(a) The Pledged Stock, Pledged Partnership Interests and Pledged LLC
Interests pledged hereunder by such Grantor are listed on Schedule 2 (Pledged
Collateral) and constitute that percentage of the issued and outstanding
equity of all classes of each issuer thereof as set forth on Schedule 2
(Pledged Collateral).
(b) All of the Pledged Stock, Pledged Partnership Interests and
Pledged LLC Interests have been duly and validly issued and are fully paid and
nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and
binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, and general equitable
principles (whether considered in a proceeding in equity or at law).
(d) All Pledged Collateral and, if applicable, any Additional Pledged
Collateral, consisting of certificated securities or Instruments has been
delivered to the Collateral Agent in accordance with Section 4.4(a) (Pledged
Collateral).
(e) Except as provided in Section 4.5 (Control Accounts; Approved
Deposit Accounts), all Pledged Collateral held by a Securities Intermediary in
a Securities Account is in a Control Account.
(f) Other than the Pledged Partnership Interests and the Pledged LLC
Interests that constitute General Intangibles, there is no Pledged Collateral
other than that represented by certificated securities or Instruments in the
possession of the Collateral Agent or that consisting of Financial Assets held
in a Control Account.
(g) Except in the case of Xxxxx Lemmerz International--Hub And Drum,
LLC and Xxxxx Lemmerz International--Akron, LLC, the LLC Agreement governing
any Pledged LLC Interest and the Partnership Agreement governing any Pledged
Partnership Interest provide that, upon the occurrence and during the
continuance of an Event of Default, the Collateral Agent shall be entitled to
exercise all of the rights of the Grantor granting the security interest
therein, and that a transferee or assignee of a membership interest or
partnership interest, as the case may be, of such LLC or Partnership, as the
case may be, shall become a member or partner, as the case may be, of such LLC
or Partnership, as the case may be, entitled to participate in the management
thereof and, upon the transfer of the entire interest of such Grantor, such
Grantor ceases to be a member or partner, as the case may be.
Section 3.6 Accounts
No amount payable to such Grantor under or in connection with any
Account is evidenced by any Instrument or Chattel Paper that has not been
delivered to the Collateral Agent, properly endorsed for transfer, to the
extent delivery is required by Section 4.4 (Pledged Collateral).
Section 3.7 Intellectual Property
(a) Schedule 5 (Intellectual Property) lists all Material
Intellectual Property of such Grantor on the date hereof, separately
identifying that owned by such Grantor and that licensed to such Grantor. The
Material Intellectual Property set forth on Schedule 5 (Intellectual Property)
for such Grantor constitutes all of the intellectual property rights material
to the conduct of its business.
(b) On the date hereof, all Material Intellectual Property owned by
such Grantor is valid, subsisting, unexpired and enforceable, has not been
adjudged invalid and has not been abandoned to the knowledge of Grantor, and
the use thereof in the business of such Grantor does not infringe the
intellectual property rights of any other Person.
(c) Except as set forth in Schedule 5 (Intellectual Property), on the
date hereof, none of the Material Intellectual Property owned by such Grantor
is the subject of any material licensing or franchise agreement pursuant to
which such Grantor is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority naming a Grantor that would limit, cancel or question
the validity of, or such Grantor's rights in, any Material Intellectual
Property.
(e) Except as set forth in Schedule 5 (Intellectual Property), no
action or proceeding seeking to limit or cancel the validity of any Material
Intellectual Property owned by such Grantor or such Grantor's ownership
interest therein is on the date hereof pending or, to the knowledge of such
Grantor, threatened. As of the date hereof, there are no claims, judgments or
settlements to be paid by such Grantor relating to the Material Intellectual
Property.
Section 3.8 Deposit Accounts; Control Accounts
The only Deposit Accounts and Securities Accounts maintained by any
Grantor on the date hereof are those listed on Schedule 6 (Bank Accounts;
Control Accounts), which sets forth such information separately for each
Grantor.
Section 3.9 Commercial Tort Claims
The only existing or potential Commercial Tort Claims of any Grantor
existing on the date hereof (regardless of whether the amount, defendant or
other material facts can be determined and regardless of whether such
Commercial Tort Claim has been asserted, threatened or has otherwise been made
known to the obligee thereof or whether litigation has been commenced for such
claims) are those listed on Schedule 7 (Commercial Tort Claims), which sets
forth such information separately for each Grantor.
ARTICLE IV COVENANTS
Each Grantor agrees with the Collateral Agent to the following, as
long as any Obligation or Commitment remains outstanding and, in each case,
unless the Administrative Agents otherwise consent in writing:
Section 4.1 Generally
Such Grantor shall (a) except for the security interests created by
this Agreement, not create or suffer to exist any Lien upon or with respect to
any Collateral, except Liens permitted under Section 8.2 (Liens, Etc.) of the
Credit Agreement, (b) not use or permit any Collateral to be used unlawfully
or in violation of any provision of this Agreement, any other Loan Document,
any Requirement of Law or any policy of insurance covering the Collateral, (c)
not sell, transfer or assign (by operation of law or otherwise) any Collateral
except as permitted under the Credit Agreement, (d) not enter into any
agreement or undertaking restricting the right or ability of such Grantor or
the Collateral Agent to sell, assign or transfer any Collateral if such
restriction would have a Material Adverse Effect, except as otherwise
permitted under the Credit Agreement, and (e) promptly notify the Collateral
Agent of its entry into any agreement or assumption of undertaking that
restricts the ability to sell, assign or transfer any Collateral regardless of
whether or not it has a Material Adverse Effect.
Section 4.2 Maintenance of Perfected Security Interests; Further
Documentation
(a) Such Grantor shall maintain the security interests created by
this Agreement as perfected security interests having at least the priorities
described in Section 2.2 (Grants of Security Interests in Collateral) and
Section 3.2 (Perfection and Priority) and shall defend such security interests
and the applicable priorities of such security interests against the claims
and demands of all Persons.
(b) Such Grantor shall furnish to the Collateral Agent from time to
time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Collateral Agent may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written request of
the Collateral Agent, and at the sole expense of such Grantor, such Grantor
shall promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further action as the Collateral Agent
may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including any authorization for the filing of any financing or continuation
statement under the UCC (or other similar laws) in effect in any jurisdiction
with respect to the security interests created hereby and the execution and
delivery of Deposit Account Control Agreements and Control Account Agreements.
Section 4.3 Changes in Locations, Name, Etc.
(a) Except upon 15 days' prior written notice to the Collateral Agent
and delivery to the Collateral Agent of (i) all additional financing
statements and other documents reasonably requested by the Collateral Agent to
maintain the validity, perfection and priority of the security interests
provided for herein and (ii) if applicable, a written supplement to Schedule 4
(Location of Inventory and Equipment) showing any additional location at which
Inventory or Equipment shall be kept, such Grantor shall not do any of the
following:
(i) permit any Inventory or Equipment to be kept at a location
other than those listed on Schedule 4 (Location of Inventory and
Equipment);
(ii) change its jurisdiction of organization or the location of
its chief executive office or sole place of business from that
referred to in Section 3.3 (Name; Jurisdiction of Organization; Chief
Executive Office); or
(iii) change its name, identity or corporate structure to such
an extent that any financing statement filed in connection with this
Agreement would become misleading.
(b) Such Grantor shall keep and maintain at its own cost and expense
satisfactory and complete records of the Collateral, including a record of all
payments received and all credits granted with respect to the Collateral and
all other dealings with the Collateral. If requested by the Collateral Agent,
the security interest of the Collateral Agent shall be noted on the
certificate of title of each Vehicle.
Section 4.4 Pledged Collateral
(a) Such Grantor shall (i) deliver to the Collateral Agent, all
certificates and Instruments representing or evidencing any Pledged Collateral
(including Additional Pledged Collateral), and, at the Collateral Agent's
request, all Instruments, whether now existing or hereafter acquired, in
suitable form for transfer by delivery or, as applicable, accompanied by such
Grantor's endorsement, where necessary, or duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to the
Collateral Agent, together, in respect of any Additional Pledged Collateral,
with a Pledge Amendment, duly executed by the Grantor, in substantially the
form of Annex 3 (Form of Pledge Amendment) or such other documentation
acceptable to the Collateral Agent and (ii) except as provided in Section 4.5
(Control Accounts; Approved Deposit Accounts), maintain all other Pledged
Collateral constituting Investment Property in a Control Account. Such Grantor
authorizes the Collateral Agent to attach each Pledge Amendment to this
Agreement. The Collateral Agent shall have the right, at any time in its
discretion and without notice to the Grantor, to transfer to or to register in
its name or in the name of its nominees any Pledged Collateral. The Collateral
Agent shall have the right at any time after the occurrence of an Event of
Default to exchange any certificate or instrument representing or evidencing
any Pledged Collateral for certificates or instruments of smaller or larger
denominations.
(b) Except as provided in Article V (Remedial Provisions), such
Grantor shall be entitled to receive all cash dividends paid in respect of the
Pledged Collateral (other than liquidating or distributing dividends) with
respect to the Pledged Collateral. Any sums paid upon or in respect of any
Pledged Collateral upon the liquidation or dissolution of any issuer of any
Pledged Collateral, any distribution of capital made on or in respect of any
Pledged Collateral or any property distributed upon or with respect to any
Pledged Collateral pursuant to the recapitalization or reclassification of the
capital of any issuer of Pledged Collateral or pursuant to the reorganization
thereof shall, unless otherwise subject to a perfected security interest (with
the priorities contemplated herein) in favor of the Collateral Agent, be
delivered to the Collateral Agent to be held by it hereunder as additional
collateral security for the Secured Obligations. If any sum of money or
property so paid or distributed in respect of any Pledged Collateral shall be
received by such Grantor, such Grantor shall, until such money or property is
paid or delivered to the Collateral Agent, hold such money or property in
trust for the Collateral Agent, segregated from other funds of such Grantor,
as additional security for the Secured Obligations.
(c) Except as provided in Article V (Remedial Provisions), such
Grantor shall be entitled to exercise all voting, consent and corporate rights
with respect to the Pledged Collateral; provided, however, that no vote shall
be cast, consent given or right exercised or other action taken by such
Grantor that would impair the Collateral, result in any violation of any
provision of the Credit Agreement, this Agreement or any other Loan Document
or, without prior notice to the Collateral Agent, enable or permit any issuer
of Pledged Collateral to issue any stock or other equity securities of any
nature or to issue any other securities convertible into or granting the right
to purchase or exchange for any stock or other equity securities of any nature
of any issuer of Pledged Collateral.
(d) Such Grantor shall not grant control over any Investment Property
to any Person other than the Collateral Agent.
(e) In the case of each Grantor that is an issuer of Pledged
Collateral, such Grantor agrees to be bound by the terms of this Agreement
relating to the Pledged Collateral issued by it and shall comply with such
terms insofar as such terms are applicable to it. In the case of each Grantor
that is a partner in a Partnership, such Grantor hereby consents to the extent
required by the applicable Partnership Agreement to the pledge by each other
Grantor, pursuant to the terms hereof, of the Pledged Partnership Interests in
such Partnership and to the transfer of such Pledged Partnership Interests to
the Collateral Agent or its nominee and to the substitution of the Collateral
Agent or its nominee as a substituted partner in such Partnership with all the
rights, powers and duties of a general partner or a limited partner, as the
case may be. In the case of each Grantor member of an LLC, such Grantor hereby
consents to the extent required by the applicable LLC Agreement to the pledge
by each other Grantor, pursuant to the terms hereof, of the Pledged LLC
Interests in such LLC and to the transfer of such Pledged LLC Interests to the
Collateral Agent or its nominee and to the substitution of the Collateral
Agent or its nominee as a substituted member of the LLC with all the rights,
powers and duties of a member of the LLC in question.
(f) Such Grantor shall not agree to any amendment of an LLC Agreement
or Partnership Agreement that in any way adversely affects the perfection of
the security interests of the Collateral Agent in the Pledged Partnership
Interests or Pledged LLC Interests pledged by such Grantor hereunder,
including any amendment electing to treat the membership interests or
partnership interest of such Grantor as a security under Section 8-103 of the
UCC.
Section 4.5 Control Accounts; Approved Deposit Accounts
(a) Such Grantor shall (i) deposit in an Approved Deposit Account all
cash received by such Grantor, (ii) not establish or maintain any Securities
Account that is not a Control Account and (iii) not establish or maintain any
Deposit Account other than with a Deposit Account Bank, a Lender or an
Affiliate of a Lender; provided, however, that any Grantor may (i) maintain
payroll, withholding tax and other fiduciary accounts and (ii) maintain other
accounts so long as the aggregate balance in all such accounts does not exceed
$5,000,000.
(b) Such Grantor shall instruct each Account Debtor or other Person
obligated to make a payment to such Grantor under a General Intangible to make
payment, or to continue to make payment, as the case may be, to an Approved
Deposit Account and shall deposit in an Approved Deposit Account all Proceeds
of such Accounts and General Intangibles received by such Grantor from any
other Person immediately upon receipt.
(c) In the event (i) such Grantor or any Approved Securities
Intermediary or Deposit Account Bank shall, after the date hereof, terminate
an agreement with respect to the maintenance of a Control Account or Approved
Deposit Account for any reason, (ii) the Collateral Agent shall demand such
termination as a result of the failure of an Approved Securities Intermediary
or Deposit Account Bank to comply with the terms of the applicable Control
Account Agreement or Deposit Account Control Agreement, or (iii) the
Collateral Agent determines in its sole discretion that the financial
condition of an Approved Securities Intermediary or Deposit Account Bank, as
the case may be, has materially deteriorated, such Grantor agrees to notify
all of its obligors that were making payments to such terminated Control
Account or Approved Deposit Account, as the case may be, to make all future
payments to another Control Account or Approved Deposit Account, as the case
may be.
Section 4.6 Accounts
(a) Such Grantor shall not, other than in the ordinary course of
business consistent with its past practice, (i) grant any extension of the
time of payment of any Account, (ii) compromise or settle any Account for less
than the full amount thereof, (iii) release, wholly or partially, any Person
liable for the payment of any Account, (iv) allow any credit or discount on
any Account or (v) amend, supplement or modify any Account in any manner that
could adversely affect the value thereof.
(b) The Collateral Agent shall have the right to make test
verifications of the Accounts in any manner and through any medium that it
reasonably considers advisable, and such Grantor shall furnish all such
assistance and information as the Collateral Agent may reasonably require in
connection therewith. At any time and from time to time, upon the Collateral
Agent's reasonable request and at the expense of the relevant Grantor, such
Grantor shall cause independent public accountants or others satisfactory to
the Collateral Agent to furnish to the Collateral Agent reports showing
reconciliations, aging and test verifications of, and trial balances for, the
Accounts; provided, however, that unless a Default or Event of Default shall
be continuing, the Collateral Agent shall request no more than four such
reports during any calendar year.
Section 4.7 Delivery of Instruments and Chattel Paper
If any amount in excess of $300,000 payable under or in connection
with any Collateral owned by such Grantor shall be or become evidenced by an
Instrument or Chattel Paper, such Grantor shall immediately deliver such
Instrument or Chattel Paper to the Collateral Agent, duly indorsed in a manner
satisfactory to the Collateral Agent, or, if consented to by the Collateral
Agent, shall xxxx all such Instruments and Chattel Paper with the following
legend: "This writing and the obligations evidenced or secured hereby are
subject to the security interest of Citicorp North America, Inc., as
Collateral Agent".
Section 4.8 Intellectual Property
(a) Such Grantor (either itself or through licensees) shall (i)
continue to use each Trademark that is Material Intellectual Property in order
to maintain such Trademark in full force and effect with respect to each class
of goods for which such Trademark is currently used, free from any claim of
abandonment for non-use, (ii) maintain as in the past the quality of products
and services offered under such Trademark, (iii) use such Trademark with the
appropriate notice of registration and all other notices and legends required
by applicable Requirements of Law, (iv) not adopt or use any xxxx that is
confusingly similar to such Trademark unless the Collateral Agent shall obtain
a perfected security interest in such xxxx pursuant to this Agreement and (v)
not (and not knowingly permit any licensee or sublicensee thereof to) do any
act or knowingly omit to do any act whereby such Trademark may become
invalidated or impaired in any way.
(b) Such Grantor shall not (and not knowingly permit any licensee or
sublicensee thereof to) do any act, or omit to do any act, whereby any Patent
that is Material Intellectual Property may become forfeited, abandoned or
dedicated to the public.
(c) Such Grantor (i) shall not (and shall not knowingly permit any
licensee or sublicensee thereof to) do any act or omit to do any act whereby
any portion of the Copyrights that is Material Intellectual Property may
become invalidated or otherwise impaired and (ii) shall not (and not knowingly
permit any licensee or sublicensee thereof to) do any act whereby any portion
of the Copyrights that is Material Intellectual Property may fall into the
public domain.
(d) Such Grantor shall not (and not knowingly permit any licensee or
sublicensee thereof to) do any act, or omit to do any act, whereby any trade
secret that is Material Intellectual Property may become publicly available or
otherwise unprotectable.
(e) Such Grantor (either itself or through licensees) shall not
knowingly do any act that uses any Material Intellectual Property to infringe
the intellectual property rights of any other Person.
(f) Such Grantor shall notify the Collateral Agent promptly if it
knows that any application or registration relating to any Material
Intellectual Property may become forfeited, abandoned or dedicated to the
public, or of any material adverse determination or development (including the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, the United States Copyright
Office or any court or tribunal in any country) regarding such Grantor's
ownership of, right to use, interest in, or the validity of, any Material
Intellectual Property.
(g) Whenever such Grantor, either by itself or through any agent,
licensee or designee, shall file an application for the registration of any
Intellectual Property with the United States Patent and Trademark Office, the
United States Copyright Office or any similar office or agency within or
outside the United States, such Grantor shall report such filing to the
Collateral Agent within five Business Days after such Grantor receives
official confirmation of such filing. Upon request of the Collateral Agent,
such Grantor shall execute and deliver, and have recorded, all agreements,
instruments, documents and papers as the Collateral Agent may request to
evidence the Collateral Agent's security interest in such Copyright, Patent or
Trademark and the goodwill of such Grantor relating thereto or represented
thereby.
(h) Such Grantor shall take all reasonable actions necessary or
requested by the Collateral Agent, including in any proceeding before the
United States Patent and Trademark Office, the United States Copyright Office
or any similar office or agency, to maintain and pursue each application (and
to obtain the relevant registration) and to maintain each registration of any
Copyright, Trademark or Patent that is Material Intellectual Property,
including filing of applications for renewal, affidavits of use, affidavits of
incontestability and opposition and interference and cancellation proceedings.
(i) In the event that any Material Intellectual Property is infringed
upon or misappropriated or diluted by a third party, such Grantor shall notify
the Collateral Agent promptly after such Grantor learns thereof. Such Grantor
shall take appropriate action in response to such infringement,
misappropriation of dilution, including promptly bringing suit for
infringement, misappropriation or dilution and to recover all damages for such
infringement, misappropriation or dilution, and shall take such other actions
as may be appropriate in its reasonable judgment under the circumstances to
protect such Material Intellectual Property.
(j) Unless otherwise agreed to by the Collateral Agent, such Grantor
shall execute and deliver to the Collateral Agent for filing in (i) the United
States Copyright Office a short-form copyright security agreement in the form
attached hereto as Annex 5 (Form of Short Form Copyright Security Agreement),
(ii) in the United States Patent and Trademark Office a short-form patent
security agreement in the form attached hereto as Annex 6 (Form of Short Form
Patent Security Agreement) and (iii) the United States Patent and Trademark
Office a short-form trademark security agreement in form attached hereto as
Annex 7 (Form of Short Form Trademark Security Agreement).
Section 4.9 Vehicles
Upon the reasonable request of the Collateral Agent, within 30 days
after the date of such request and, with respect to any Vehicle acquired by
such Grantor subsequent to the date of any such request, within 30 days after
the date of acquisition thereof, such Grantor shall file all applications for
certificates of title or ownership indicating the Collateral Agent's first and
second priority security interest in the Vehicle covered by such certificate
and any other necessary documentation, in each office in each jurisdiction
that the Collateral Agent shall deem advisable to perfect its security
interests in the Vehicles.
Section 4.10 Payment of Obligations
Such Grantor shall pay and discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all
taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of income or profits therefrom, as well as all claims
of any kind (including claims for labor, materials and supplies) against or
with respect to the Collateral, except that no such charge need be paid if the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings, reserves in conformity with GAAP with respect thereto
have been provided on the books of such Grantor and such proceedings could not
reasonably be expected to result in the sale, forfeiture or loss of any
material portion of the Collateral or any interest therein.
Section 4.11 Insurance
Such Grantor shall (i) maintain, and cause to be maintained for each
of its Subsidiaries insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which such Grantor or such Subsidiary
operates, and such other insurance as may be reasonably requested by the
Requisite Lenders, and, in any event, all insurance required by any Collateral
Documents and (ii) cause all such insurance that is material to name the
Collateral Agent on behalf of the Secured Parties as additional insured or
loss payee, as appropriate, and to provide that no cancellation, material
addition in amount or material change in coverage shall be effective until
after 30 days' written notice thereof to the Collateral Agent.
Section 4.12 Notice of Commercial Tort Claims
Such Grantor agrees that, if it shall acquire any interest in any
Commercial Tort Claim (whether from another Person or because such Commercial
Tort Claim shall have come into existence), (i) such Grantor shall,
immediately upon such acquisition, deliver to the Collateral Agent, in each
case in form and substance satisfactory to the Collateral Agent, a notice of
the existence and nature of such Commercial Tort Claim and deliver a
supplement to Schedule 7 (Commercial Tort Claims) containing a specific
description of such Commercial Tort Claim, certified by such Grantor as true,
correct and complete, (ii) the provision of Section 2.1 (Collateral) shall
apply to such Commercial Tort Claim (and the Grantor authorizes the Collateral
Agent to supplement such schedule with a description of such Commercial Tort
Claim if such Grantor fails to deliver the supplement described in clause (i))
and (iii) such Grantor shall execute and deliver to the Collateral Agent, in
each case in form and substance satisfactory to the Collateral Agent, any
certificate, agreement and other document, and take all other action, deemed
by the Collateral Agent to be reasonably necessary or appropriate for the
Collateral Agent to obtain, on behalf of the Senior Secured Parties, a first
priority, perfected security interest in all such Commercial Tort Claims, and
on behalf of the Junior Secured Parties, a second-priority, perfected security
interest in all such Commercial Tort Claims. Any supplement to Schedule 7
(Commercial Tort Claims) delivered pursuant to this Section 4.12 (Notice of
Commercial Tort Claims) shall become part of Schedule 7 (Commercial Tort
Claims) for all purposes hereunder other than, absent a written consent of the
Collateral Agent, for purpose of the representations and warranties set forth
in Section 3.9 (Commercial Tort Claims).
ARTICLE V REMEDIAL PROVISIONS
Section 5.1 Code and Other Remedies
During the continuance of an Event of Default, the
Collateral Agent may exercise, in addition to all other rights and remedies
granted to it in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Secured Obligations, all rights and
remedies of a secured party under the UCC or any other applicable law. Without
limiting the generality of the foregoing, the Collateral Agent, without demand
of performance or other demand, presentment, protest, advertisement or notice
of any kind (except any notice required by law referred to below) to or upon
any Grantor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon any Collateral, and
may forthwith sell, lease, assign, give option or options to purchase, or
otherwise dispose of and deliver any Collateral (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Collateral Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Collateral 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 the whole or any part of the
Collateral so sold, free of any right or equity of redemption in any Grantor,
which right or equity is hereby waived and released. Each Grantor further
agrees, at the Collateral Agent's request, to assemble the Collateral and make
it available to the Collateral Agent at places that the Collateral Agent shall
reasonably select, whether at such Grantor's premises or elsewhere. The
Collateral Agent shall apply the net proceeds of any action taken by it
pursuant to this Section 5.1, after deducting all reasonable costs and
expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any Collateral or in any way relating to the Collateral
or the rights of the Collateral Agent and any other Secured Party hereunder,
including reasonable attorneys' fees and disbursements, to the payment in
whole or in part of the Secured Obligations, in such order as the
Intercreditor Agreement shall prescribe, and only after such application and
after the payment by the Collateral Agent of any other amount required by any
provision of law, need the Collateral Agent account for the surplus, if any,
to any Grantor. To the extent permitted by applicable law, each Grantor waives
all claims, damages and demands it may acquire against the Collateral Agent or
any other Secured Party arising out of the exercise by them of any rights
hereunder. If any notice of a proposed sale or other disposition of Collateral
shall be required by law, such notice shall be deemed reasonable and proper if
given at least 10 days before such sale or other disposition.
Section 5.2 Accounts and Payments in Respect of General Intangibles
(a) If required by the Collateral Agent at any time during the
continuance of an Event of Default, any payment of Accounts or payment in
respect of General Intangibles, when collected by any Grantor, shall be
forthwith (and, in any event, within two Business Days) deposited by such
Grantor in the exact form received, duly indorsed by such Grantor to the
Collateral Agent if required, in a Cash Collateral Account, subject to
withdrawal by the Collateral Agent as provided in Section 5.4 (Proceeds to be
Turned Over To Collateral Agent). Until so turned over, such payment shall be
held by such Grantor in trust for the Collateral Agent, segregated from other
funds of such Grantor. Each such deposit of Proceeds of Accounts and payments
in respect of General Intangibles shall be accompanied by a report identifying
in reasonable detail the nature and source of the payments included in the
deposit.
(b) At the Collateral Agent's request, during the continuance of an
Event of Default, each Grantor shall deliver to the Collateral Agent all
original and other documents evidencing, and relating to, the agreements and
transactions that gave rise to the Accounts or payments in respect of General
Intangibles, including all original orders, invoices and shipping receipts.
(c) The Collateral Agent may, without notice, at any time during the
continuance of an Event of Default, limit or terminate the authority of a
Grantor to collect its Accounts or amounts due under General Intangibles or
any thereof.
(d) The Collateral Agent in its own name or in the name of others may
at any time during the continuance of an Event of Default communicate with
Account Debtors to verify with them to the Collateral Agent's satisfaction the
existence, amount and terms of any Account or amounts due under any General
Intangible.
(e) Upon the request of the Collateral Agent at any time during the
continuance of an Event of Default, each Grantor shall notify Account Debtors
that the Accounts or General Intangibles have been collaterally assigned to
the Collateral Agent and that payments in respect thereof shall be made
directly to the Collateral Agent. In addition, the Collateral Agent may at any
time during the continuance of an Event of Default enforce such Grantor's
rights against such Account Debtors and obligors of General Intangibles.
(f) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Accounts and payments in respect of
General Intangibles to observe and perform all the conditions and obligations
to be observed and performed by it thereunder, all in accordance with the
terms of any agreement giving rise thereto. Neither the Collateral Agent nor
any other Secured Party shall have any obligation or liability under any
agreement giving rise to an Account or a payment in respect of a General
Intangible by reason of or arising out of this Agreement or the receipt by the
Collateral Agent nor any other Secured Party of any payment relating thereto,
nor shall the Collateral Agent nor any other Secured Party be obligated in any
manner to perform any obligation of any Grantor under or pursuant to any
agreement giving rise to an Account or a payment in respect of a General
Intangible, to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any
performance by any party thereunder, to present or file any claim, to take any
action to enforce any performance or to collect the payment of any amounts
that may have been assigned to it or to which it may be entitled at any time
or times.
Section 5.3 Pledged Collateral
(a) During the continuance of an Event of Default, upon notice by the
Collateral Agent to the relevant Grantor or Grantors, (i) the Collateral Agent
shall have the right to receive any Proceeds of the Pledged Collateral and
make application thereof to the Obligations in the order set forth in the
Credit Agreement and (ii) the Collateral Agent or its nominee may exercise (A)
any voting, consent, corporate and other right pertaining to the Pledged
Collateral at any meeting of shareholders, partners or members, as the case
may be, of the relevant issuer or issuers of Pledged Collateral or otherwise
and (B) any right of conversion, exchange and subscription and any other
right, privilege or option pertaining to the Pledged Collateral as if it were
the absolute owner thereof (including the right to exchange at its discretion
any of the Pledged Collateral upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
issuer of Pledged Securities, the right to deposit and deliver any Pledged
Collateral with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the Collateral Agent may
determine), all without liability except to account for property actually
received by it; provided, however, that the Collateral Agent shall have no
duty to any Grantor to exercise any such right, privilege or option and shall
not be responsible for any failure to do so or delay in so doing.
(b) In order to permit the Collateral Agent to exercise the voting
and other consensual rights that it may be entitled to exercise pursuant
hereto and to receive all dividends and other distributions that it may be
entitled to receive hereunder, (i) each Grantor shall promptly execute and
deliver (or cause to be executed and delivered) to the Collateral Agent all
such proxies, dividend payment orders and other instruments as the Collateral
Agent may from time to time reasonably request and (ii) without limiting the
effect of clause (i) above, such Grantor hereby grants to the Collateral Agent
an irrevocable proxy to vote all or any part of the Pledged Collateral and to
exercise all other rights, powers, privileges and remedies to which a holder
of the Pledged Collateral would be entitled (including giving or withholding
written consents of shareholders, partners or members, as the case may be,
calling special meetings of shareholders, partners or members, as the case may
be, and voting at such meetings), which proxy shall be effective,
automatically and without the necessity of any action (including any transfer
of any Pledged Collateral on the record books of the issuer thereof) by any
other person (including the issuer of such Pledged Collateral or any officer
or agent thereof) during the continuance of an Event of Default and which
proxy shall only terminate upon the payment in full of the Secured
Obligations.
(c) Each Grantor hereby expressly authorizes and instructs each
issuer of any Pledged Collateral pledged hereunder by such Grantor to (i)
comply with any instruction received by it from the Collateral Agent in
writing that (A) states that an Event of Default has occurred and is
continuing and (B) is otherwise in accordance with the terms of this
Agreement, without any other or further instructions from such Grantor, and
each Grantor agrees that such issuer shall be fully protected in so complying
and (ii) unless otherwise expressly permitted hereby, pay any dividend or
other payment with respect to the Pledged Collateral directly to the
Collateral Agent.
(d) It is hereby acknowledged and agreed that the Collateral Agent
shall not deliver any blockage notice or similar document pursuant to any
Deposit Account Control Agreement or Control Account Agreement unless an Event
of Default shall have occurred and be continuing.
Section 5.4 Proceeds to be Turned Over To Collateral Agent
All Proceeds received by the Collateral Agent hereunder shall be held
by the Collateral Agent in a Cash Collateral Account. All Proceeds while held
by the Collateral Agent in a Cash Collateral Account (or by such Grantor in
trust for the Collateral Agent) shall continue to be held as collateral
security for the Secured Obligations and shall not constitute payment thereof
until applied as provided in the Intercreditor Agreement.
Section 5.5 Registration Rights
(a) If the Collateral Agent shall determine to exercise its right to
sell any the Pledged Collateral pursuant to Section 5.1 (Code and Other
Remedies), and if in the opinion of the Collateral Agent it is necessary or
advisable to have the Pledged Collateral, or any portion thereof to be
registered under the provisions of the Securities Act, the relevant Grantor
shall cause the issuer thereof to (i) execute and deliver, and cause the
directors and officers of such issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as
may be, in the opinion of the Collateral Agent, necessary or advisable to
register the Pledged Collateral, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering
of the Pledged Collateral, or that portion thereof to be sold and (iii) make
all amendments thereto or to the related prospectus that, in the opinion of
the Collateral Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Grantor agrees to
cause such issuer to comply with the provisions of the securities or "Blue
Sky" laws of any jurisdiction that the Collateral Agent shall designate and to
make available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) satisfying the provisions of Section
11(a) of the Securities Act.
(b) Each Grantor recognizes that the Collateral Agent may be unable
to effect a public sale of any Pledged Collateral by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise or may determine that a public sale is impracticable or not
commercially reasonable and, accordingly, may resort to one or more private
sales thereof to a restricted group of purchasers that shall be obliged to
agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in
prices and other terms less favorable than if such sale were a public sale
and, notwithstanding such circumstances, agrees that any such private sale
shall be deemed to have been made in a commercially reasonable manner. The
Collateral Agent shall be under no obligation to delay a sale of any Pledged
Collateral for the period of time necessary to permit the issuer thereof to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged Collateral pursuant to this Section 5.5 valid
and binding and in compliance with all other applicable Requirements of Law.
Each Grantor further agrees that a breach of any covenant contained in this
Section 5.5 will cause irreparable injury to the Collateral Agent and other
Secured Parties, that the Collateral Agent and the other Secured Parties have
no adequate remedy at law in respect of such breach and, as a consequence,
that each and every covenant contained in this Section 5.5 shall be
specifically enforceable against such Grantor, and such Grantor hereby waives
and agrees not to assert any defense against an action for specific
performance of such covenants except for a defense that no Event of Default
has occurred under the Credit Agreement.
Section 5.6 Deficiency
Each Grantor shall remain liable for any deficiency if the proceeds
of any sale or other disposition of the Collateral are insufficient to pay the
Secured Obligations and the fees and disbursements of any attorney employed by
the Collateral Agent or any other Secured Party to collect such deficiency.
ARTICLE VI THE COLLATERAL AGENT
Section 6.1 Collateral Agent's Appointment as Attorney-in-Fact
(a) Each Grantor hereby irrevocably constitutes and appoints the
Collateral Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any appropriate action and to execute any document or
instrument that may be necessary or desirable to accomplish the purposes of
this Agreement, and, without limiting the generality of the foregoing, each
Grantor hereby gives the Collateral Agent the power and right, on behalf of
such Grantor, without notice to or assent by such Grantor, to do any of the
following:
(iv) in the name of such Grantor or its own name, or otherwise,
take possession of and indorse and collect any check, draft, note,
acceptance or other instrument for the payment of moneys due under
any Account or General Intangible or with respect to any other
Collateral and file any claim or take any other action or proceeding
in any court of law or equity or otherwise deemed appropriate by the
Collateral Agent for the purpose of collecting any such moneys due
under any Account or General Intangible or with respect to any other
Collateral whenever payable;
(v) in the case of any Intellectual Property, execute and
deliver, and have recorded, any agreement, instrument, document or
paper as the Collateral Agent may request to evidence the Collateral
Agent's security interest in such Intellectual Property and the
goodwill and General Intangibles of such Grantor relating thereto or
represented thereby;
(vi) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repair or pay or
discharge any insurance called for by the terms of this Agreement
(including all or any part of the premiums therefor and the costs
thereof);
(vii) execute, in connection with any sale provided for in
Section 5.1 (Code and Other Remedies) or 5.5 (Registration Rights),
any endorsement, assignment or other instrument of conveyance or
transfer with respect to the Collateral; or
(viii) (A) direct any party liable for any payment under any
Collateral to make payment of any moneys due or to become due
thereunder directly to the Collateral Agent or as the Collateral
Agent shall direct, (B) ask or demand for, collect, and receive
payment of and receipt for, any moneys, claims and other amounts due
or to become due at any time in respect of or arising out of any
Collateral, (C) sign and indorse any invoice, freight or express
xxxx, xxxx of lading, storage or warehouse receipt, draft against
debtors, assignment, verification, notice and other document in
connection with any Collateral, (D) commence and prosecute any suit,
action or proceeding at law or in equity in any court of competent
jurisdiction to collect any Collateral and to enforce any other right
in respect of any Collateral, (E) defend any suit, action or
proceeding brought against such Grantor with respect to any
Collateral, (F) settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, give such discharges or
releases as the Collateral Agent may deem appropriate, (G) assign any
Copyright, Patent or Trademark (along with the goodwill of the
business to which any such Trademark pertains) throughout the world
for such term or terms, on such conditions, and in such manner as the
Collateral Agent shall in its sole discretion determine, including
the execution and filing of any document necessary to effectuate or
record such assignment and (H) generally, sell, transfer, pledge and
make any agreement with respect to or otherwise deal with any
Collateral as fully and completely as though the Collateral Agent
were the absolute owner thereof for all purposes, and do, at the
Collateral Agent's option and such Grantor's expense, at any time, or
from time to time, all acts and things that the Collateral Agent
deems necessary to protect, preserve or realize upon the Collateral
and the Collateral Agent's and the other Secured Parties' security
interests therein and to effect the intent of this Agreement, all as
fully and effectively as such Grantor might do.
Anything in this clause (a) to the contrary notwithstanding, the Collateral
Agent agrees that it shall not exercise any right under the power of attorney
provided for in this clause (a) unless an Event of Default shall have occurred
and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Collateral Agent, at its option, but without
any obligation so to do, may perform or comply, or otherwise cause performance
or compliance, with such agreement.
(c) The expenses of the Collateral Agent incurred in connection with
actions undertaken as provided in this Section 6.1, together with interest
thereon at a rate per annum equal to the rate per annum at which interest
would then be payable on past due Revolving Loans that are Base Rate Loans
under the Credit Agreement, from the date of payment by the Collateral Agent
to the date reimbursed by the relevant Grantor, shall be payable by such
Grantor to the Collateral Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations
and agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
Section 6.2 Duty of Collateral Agent
The Collateral Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession
shall be to deal with it in the same manner as the Collateral Agent deals with
similar property for its own account. Neither the Collateral Agent, any other
Secured Party nor any of their respective officers, directors, employees or
agents shall be liable for failure to demand, collect or realize upon any
Collateral or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of any Grantor or
any other Person or to take any other action whatsoever with regard to any
Collateral. The powers conferred on the Collateral Agent hereunder are solely
to protect the Collateral Agent's interest in the Collateral and shall not
impose any duty upon the Collateral Agent or any other Secured Party to
exercise any such powers. The Collateral Agent and the other Secured Parties
shall be accountable only for amounts that they actually receive as a result
of the exercise of such powers, and neither they nor any of their respective
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.
Section 6.3 Authorization of Financing Statements
Each Grantor hereby authorizes the filing of any financing statements
or continuation statements, and amendments to financing statements or
continuation statements, in any jurisdictions and with any filing offices as
the Collateral Agent may determine, in its sole discretion, are necessary or
advisable to perfect the security interests granted to the Collateral Agent in
connection herewith. Such financing statements may describe the collateral in
the same manner as described in any security agreement or pledge agreement
entered into by the parties in connection herewith or may contain an
indication or description of collateral that describes such property in any
other manner as the Collateral Agent may determine, in its sole discretion, in
necessary, advisable or prudent to ensure the perfection of the security
interest in the collateral granted to the Collateral Agent in connection
herewith, including, without limitation, describing such property as "all
assets" or "all personal property" whether now owned or hereafter acquired.
Section 6.4 Authority of Collateral Agent
(a) Each Grantor acknowledges that the rights and responsibilities of
the Collateral Agent under this Agreement with respect to any action taken by
the Collateral Agent or the exercise or non-exercise by the Collateral Agent
of any option, voting right, request, judgment or other right or remedy
provided for herein or resulting or arising out of this Agreement shall, as
between the Collateral Agent and the other Secured Parties, be governed by the
Intercreditor Agreement, the Credit Agreement and by such other agreements
with respect thereto as may exist from time to time among them, but, as
between the Collateral Agent and the Grantors, the Collateral Agent shall be
conclusively presumed to be acting as agent for the Collateral Agent and the
other Secured Parties with full and valid authority so to act or refrain from
acting, and no Grantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority. To the extent that the Intercreditor
Agreement conflicts with any other Loan Document with regard to the authority
of the Collateral Agent, the Intercreditor Agreement shall control.
(b) Each Grantor and the Collateral Agent hereby agrees and
acknowledges that, to the extent that the Collateral Agent has a security
interest in or possession of any Collateral, the Collateral Agent is holding,
and shall hold, such Collateral (and the security interest therein) for the
benefit of and on behalf of each Secured Party, subject to the relative
priorities set forth herein and in the Intercreditor Agreement, in accordance
with Section 8-301(a)(2), 9-313(a) and 9-313(c) of the UCC, if applicable.
ARTICLE VII MISCELLANEOUS
Section 7.1 Amendments in Writing
None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise modified except in accordance with Section
11.1 (Amendments, Waivers, Etc.) of the Credit Agreement.
Section 7.2 Notices
All notices, requests and demands to or upon the Collateral Agent or
any Grantor hereunder shall be effected in the manner provided for in Section
11.8 (Notices, Etc.) of the Credit Agreement; provided, however, that any such
notice, request or demand to or upon any Grantor shall be addressed to the
Borrower's notice address set forth in such Section 11.8.
Section 7.3 No Waiver by Course of Conduct; Cumulative Remedies
Neither the Collateral Agent nor any other Secured Party shall by any
act (except by a written instrument pursuant to Section 7.1 (Amendments in
Writing)), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any Default or Event of
Default. No failure to exercise, nor any delay in exercising, on the part of
the Collateral Agent or any other Secured Party, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Collateral Agent or any other Secured Party of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy that the Collateral Agent or such other Secured Party would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive
of any other rights or remedies provided by law.
Section 7.4 Amendment and Restatement; Effectiveness
(a) This Agreement shall not become effective until the Effective
Date.
(b) On the Effective Date, the Existing Pledge and Security Agreement
shall be amended and restated in its entirety by this Agreement, and the
Existing Pledge and Security Agreement shall thereafter be of no further force
and effect except to evidence (i) the Liens granted thereunder and the
incurrence by the Grantors of obligations thereunder (whether or not such
obligations are contingent as of the Effective Date), (ii) the representations
and warranties made by the Grantors prior to the Effective Date and (iii) any
action or omission performed or required to be performed pursuant to the
Existing Pledge and Security Agreement prior to the Effective Date (including
any failure, prior to the Effective Date, to comply with the covenants
contained in the Existing Pledge and Security Agreement). The amendments and
restatements set forth herein shall not cure any breach thereof or any
"Default" or "Event of Default" under and as defined in the Existing Credit
Agreement existing prior to the date hereof. This Agreement is not in any way
intended to constitute a novation of the obligations and liabilities existing
under the Existing Pledge and Security Agreement or evidence payment or
performance of all or any portion of such obligations and liabilities. Each of
the Grantors hereby consents to the execution, delivery and performance of the
Credit Agreement and all of the other Loan Documents executed or delivered in
connection therewith.
(c) The terms and conditions of this Agreement and the Agents', the
Lenders' and the Issuers' rights and remedies under this Agreement and the
other Loan Documents shall apply to (i) all of the Obligations incurred under
the Credit Agreement and the Notes issued thereunder and all obligations of
the Grantors incurred under the Loan Documents and (ii) all of the Obligations
incurred under the Existing Credit Agreement and the Notes issued thereunder
and all obligations of the Grantors incurred under the Loan Documents (as
defined in the Existing Credit Agreement) (the "Existing Loan Documents").
(d) Each Grantor hereby reaffirms the Liens granted pursuant to the
Existing Loan Documents to the Existing Administrative Agent for the benefit
of the Secured Parties (as defined in the Existing Credit Agreement), which
Liens shall continue in full force and effect during the term of this
Agreement and any renewals thereof and shall continue to secure the Secured
Obligations.
(e) On and after the Effective Date, (i) all references to the
Existing Pledge and Security Agreement (or to any amendment or any amendment
and restatement thereof) in the Loan Documents shall be deemed to refer to the
Existing Pledge and Security Agreement, as amended and restated hereby, (ii)
all references to any section (or subsection) of the Existing Pledge and
Security Agreement in any Loan Document (but not herein) shall be amended to
become, mutatis mutandis, references to the corresponding provisions of this
Agreement and (iii) except as the context otherwise provides, on or after the
Effective Date, all references to this Agreement herein (including for
purposes of indemnification and reimbursement of fees) shall be deemed to be
reference to the Existing Pledge and Security Agreement, as amended and
restated hereby.
(f) This amendment and restatement is limited as written and is not a
consent to any other amendment, restatement, waiver or other modification,
whether or not similar, and, except as expressly provided herein or in any
other Loan Document, all terms and conditions of the Loan Documents remain in
full force and effect unless otherwise specifically amended by this Agreement
or any other Loan Document.
Section 7.5 Successors and Assigns
This Agreement shall be binding upon the successors and assigns of
each Grantor and shall inure to the benefit of the Collateral Agent and each
other Secured Party and their successors and assigns; provided, however, that
no Grantor may assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Collateral
Agent.
Section 7.6 Counterparts
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy), each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Signature pages
may be detached from multiple counterparts and attached to a single
counterpart so that all signature pages are attached to the same document.
Delivery of an executed counterpart by telecopy shall be effective as delivery
of a manually executed counterpart.
Section 7.7 Severability
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
Section 7.8 Section Headings
The Article and Section titles contained in this Agreement are, and
shall be, without substantive meaning or content of any kind whatsoever and
are not part of the agreement of the parties hereto.
Section 7.9 Entire Agreement
This Agreement together with the other Loan Documents represents the
entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof. This Agreement and each
other Loan Document are subject to the terms and conditions set forth in the
Intercreditor Agreement in all respects and, in the event of any conflict
between the Intercreditor Agreement, this Agreement or any other Loan Document
with regard to the authority of the Collateral Agent or otherwise, the terms
of the Intercreditor Agreement shall govern.
Section 7.10 Governing Law
This Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the
law of the State of New York.
Section 7.11 Additional Grantors
If, pursuant to Section 7.11 (Additional Collateral and Guaranties)
of the Credit Agreement, the Borrower shall be required to cause any
Subsidiary that is not a Grantor to become a Grantor hereunder, such
Subsidiary shall execute and deliver to the Collateral Agent a Joinder
Agreement in the form of Annex 4 (Form of Joinder Agreement) and shall
thereafter for all purposes be a party hereto and have the same rights,
benefits and obligations as a Grantor party hereto on the Effective Date.
Section 7.12 Release of Collateral
(a) At the time provided in Section 9 of the Intercreditor Agreement,
the Collateral shall be released from the Liens created hereby and this
Agreement and all obligations (other than those expressly stated to survive
such termination) of the Collateral Agent and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors. At
the request and sole expense of any Grantor following any such termination,
the Collateral Agent shall deliver to such Grantor any Collateral of such
Grantor held by the Collateral Agent hereunder and execute and deliver to such
Grantor such documents as such Grantor shall reasonably request to evidence
such termination.
(b) If the Collateral Agent shall be directed or permitted pursuant
to Section 9 of the Intercreditor Agreement to release any Lien created hereby
upon any Collateral (including any Collateral sold or disposed of by any
Grantor in a transaction permitted by the Credit Agreement), such Collateral
shall be released from the Lien created hereby to the extent provided, and
subject to the terms and conditions set forth, in Section 10.8(b) (Concerning
the Collateral and the Collateral Documents) of the Credit Agreement and, in
connection therewith, the Collateral Agent, at the request and sole expense of
the Borrower, shall execute and deliver to the Borrower all releases or other
documents reasonably necessary or desirable for the release of the Lien
created hereby on such Collateral. At the request and sole expense of the
Borrower, a Grantor shall be released from its obligations hereunder in the
event that all the capital stock of such Grantor shall be so sold or disposed;
provided, however, that the Borrower shall have delivered to the Collateral
Agent, at least ten Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Grantor and the terms of
the sale or other disposition in reasonable detail, including the price
thereof and any expenses in connection therewith, together with a
certification by the Borrower in form and substance satisfactory to the
Collateral Agent stating that such transaction is in compliance with the
Credit Agreement and the other Loan Documents.
Section 7.13 Reinstatement
Each Grantor further agrees that, if any payment made by any Loan
Party or other Person and applied to the Obligations is at any time annulled,
avoided, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be refunded or repaid, or the proceeds
of Collateral are required to be returned by any Secured Party to such Loan
Party, its estate, trustee, receiver or any other party, including any
Grantor, under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or repayment, any Lien or
other Collateral securing such liability shall be and remain in full force and
effect, as fully as if such payment had never been made or, if prior thereto
the Lien granted hereby or other Collateral securing such liability hereunder
shall have been released or terminated by virtue of such cancellation or
surrender), such Lien or other Collateral shall be reinstated in full force
and effect, and such prior cancellation or surrender shall not diminish,
release, discharge, impair or otherwise affect any Lien or other Collateral
securing the obligations of any Grantor in respect of the amount of such
payment.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, each of the undersigned has caused this Pledge
and Security Agreement to be duly executed and delivered as of the date first
above written.
GRANTORS:
HLI OPERATING COMPANY, INC.
XXXXX LEMMERZ INTERNATIONAL, INC.
HLI PARENT COMPANY, INC.
XXXXX LEMMERZ INTERNATIONAL--AKRON, LLC
XXXXX LEMMERZ INTERNATIONAL--BOWLING GREEN, INC
XXXXX LEMMERZ INTERNATIONAL - BRISTOL, INC.
XXXXX LEMMERZ INTERNATIONAL - CADILLAC, INC.
XXXXX LEMMERZ INTERNATIONAL--CALIFORNIA, INC.
XXXXX LEMMERZ INTERNATIONAL--COMMERCIAL HIGHWAY, INC.
XXXXX LEMMERZ INTERNATIONAL - EQUIPMENT & ENGINEERING, INC.
XXXXX LEMMERZ INTERNATIONAL--GEORGIA, INC.
XXXXX LEMMERZ INTERNATIONAL - XXXXX, INC.
XXXXX LEMMERZ INTERNATIONAL - XXXXXX, INC.
XXXXX LEMMERZ INTERNATIONAL--HUB AND DRUM, LLC
XXXXX LEMMERZ INTERNATIONAL--HUNTINGTON, INC.
XXXXX LEMMERZ INTERNATIONAL--KENTUCKY, INC.
XXXXX LEMMERZ INTERNATIONAL - LAREDO, INC.
XXXXX LEMMERZ INTERNATIONAL--LA MIRADA, INC.
XXXXX LEMMERZ INTERNATIONAL - MEXICO, INC.
XXXXX LEMMERZ INTERNATIONAL - MONTAGUE, INC.
XXXXX LEMMERZ INTERNATIONAL - PCA, INC.
XXXXX LEMMERZ INTERNATIONAL - PETERSBURG, INC.
XXXXX LEMMERZ INTERNATIONAL--SEDALIA, INC.
XXXXX LEMMERZ INTERNATIONAL - SOUTHFIELD, INC.
XXXXX LEMMERZ INTERNATIONAL - TECHNICAL CENTER, INC.
XXXXX LEMMERZ INTERNATIONAL - TEXAS, INC.
XXXXX LEMMERZ INTERNATIONAL--TRANSPORTATION, INC.
XXXXX LEMMERZ INTERNATIONAL--WABASH, INC.
XXXXX LEMMERZ INTERNATIONAL IMPORT, INC.
HLI BRAKES HOLDING COMPANY, INC.
HLI COMMERCIAL HIGHWAY HOLDING COMPANY, INC.
HLI POWERTRAIN HOLDING COMPANY, INC.
HLI REALTY, INC.
HLI SERVICES HOLDING COMPANY, INC.
HLI SUSPENSION HOLDING COMPANY, INC.
HLI WHEELS HOLDING COMPANY, INC.
HLI - SUMMERFIELD REALTY CORP.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ACCEPTED AND AGREED
as of the date first above written:
CITICORP NORTH AMERICA, INC., as
Collateral Agent for the Senior Secured Parties,
Collateral Agent for the Junior Secured Parties and
Collateral Agent for the Secured Parties
By: /s/ Xxxxxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Managing Director/Vice President
ANNEX 1
TO
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
FORM OF DEPOSIT ACCOUNT CONTROL AGREEMENT
_____________ __, ____
[Deposit Account Bank]
[Address]
Ladies and Gentlemen:
Reference is made to account no. [__________] maintained with you
(the "Bank") by [ ] (the "Company") into which funds are deposited from time
to time (the "Account"). The Company has entered into an Amended and Restated
Credit Agreement, dated as of April 11, 2005 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among HLI Operating Company, Inc., as borrower, Xxxxx Lemmerz
International, Inc., the Lenders and Issuers party thereto, Citicorp North
America, Inc. ("CNAI"), as collateral agent for the Secured Parties (in such
capacity, the "Collateral Agent"), CNAI, as administrative agent for the First
Lien Lenders, CNAI, as administrative agent for the Term C Lenders, Xxxxxx
Commercial Paper Inc., as syndication agent, and General Electric Capital
Corporation, as documentation agent. All capitalized terms used herein and not
otherwise defined herein shall have the respective meanings given to such
terms in the Credit Agreement.
Pursuant to the Credit Agreement and related documents, the Company
has granted to the Collateral Agent (in each of its capacities as set forth in
the Pledge and Security Agreement), for the benefit of the Secured Parties, a
security interest in certain property of the Company, including, among other
things, accounts, inventory, equipment, instruments, general intangibles and
all proceeds thereof (the "Collateral"). Payments with respect to the
Collateral are or hereafter may be made to the Account.
The Company hereby transfers to the Collateral Agent exclusive
control of the Account and all funds and other property on deposit therein. By
your execution of this letter agreement, you (i) agree that you shall comply
with instructions originated by the Collateral Agent directing disposition of
the funds and other property on deposit in the Account without further consent
of the Company and (ii) acknowledge that the Collateral Agent now has
exclusive control of the Account, that all funds in the Account shall be
transferred to the Collateral Agent as provided herein, that the Account is
being maintained by you for the benefit of the Collateral Agent and that all
amounts and other property therein are held by you as custodian for the
Collateral Agent.
Except as provided in clauses (b)(iii) and (e) below, the Account
shall not be subject to deduction, set-off, banker's lien, counterclaim,
defense, recoupment or any other right in favor of any person or entity other
than the Collateral Agent. By your execution of this letter agreement you also
acknowledge that, as of the date hereof, you have received no notice of any
other pledge or assignment of the Account and have not executed any agreements
with third parties covering the disposition of funds in the Account. You agree
with the Collateral Agent as follows:
(a) Notwithstanding anything to the contrary or any other
agreement relating to the Account, the Account is and shall be
maintained for the benefit of the Collateral Agent, shall be entitled
"Citicorp North America, Inc. [name of Company] Account" and shall be
subject to written instructions only from an authorized officer of
the Collateral Agent.
(b) [A post office box (the "Lockbox") has been rented in the
name of the Company at the [___________] post office and the address
to be used for such Lockbox is:
[Insert address]
Your authorized representatives shall have access to the Lockbox
under the authority given by the Company to the post office and shall
make regular pick-ups from the Lockbox timed to gain maximum benefit
of early presentation and availability of funds. You shall endorse
process all checks received in the Lockbox and deposit such checks
(to the extent eligible) in the Account in accordance with the
procedures set forth below.
(i) You shall follow your usual operating procedures for
the handling of any checks received from the Lockbox or other
remittance received in the Account that contains restrictive
endorsements, irregularities (such as a variance between the
written and numerical amounts), undated or postdated items,
missing signatures, incorrect payees and the like.
(ii) You shall endorse and process all eligible checks
and other remittance items not covered by clause (iii) below
and deposit such checks and remittance items in the Account.
(iii) You shall mail all checks returned unpaid because
of uncollected or insufficient funds under appropriate advice
to the Company (with a copy of the notification of return to
the Collateral Agent). You may charge the Account for the
amounts of any returned check that has been previously credited
to the Account. To the extent insufficient funds remain in the
Account to cover any such returned check, the Company shall
indemnify you for the uncollected amount of such returned check
upon your demand.
(iv) You shall maintain a record of all checks and other
remittance items received in the Account and, in addition to
providing the Company with photostatic copies thereof,
vouchers, enclosures and the like of such checks and remittance
items on a daily basis, furnish to the Collateral Agent a
monthly statement of the Account to Citicorp North America,
Inc., as Collateral Agent at the following address: 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
[____________], with a copy to the Company.]
(c) Prior to the delivery to you of a written notice from the
Collateral Agent in the form of Exhibit A hereto (a "Blockage
Notice"), you are authorized to transfer to the Company, in same day
funds, on each business day, the entire balance in the Account to the
following account:
ABA Number: _____________________
[name and address of Company's bank]
Account Name: ____________________________
Concentration Account
Account Number: __________________________
Reference: _______________________________
Attn: ____________________________________
or to such other account as the Company may from
time to time designate in writing.
(d) From and after the delivery to you of a Blockage Notice,
you shall transfer (by wire transfer or other method of transfer
mutually acceptable to you and the Collateral Agent) to the Agent, in
same day funds, on each business day, the entire balance in the
Account to the following account:
ABA Number: ____________________________
Citibank, N.A.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Account Name: ______________________________
Concentration Account
Account Number: _____________________________
Reference: __________________________________
Attn:________________________________________
or to such other account as the Collateral Agent may from time to
time designate in writing (the "Collateral Agent Concentration
Account").
(e) All customary service charges and fees with respect to the
Account shall be debited to the Account. In the event insufficient
funds remain in the Account to cover such customary service charges
and fees, the Company shall pay and indemnify you for the amounts of
such customary service charges and fees.
This letter agreement shall be binding upon and shall inure to the
benefit of you, the Company, the Collateral Agent, the Secured Parties
referred to in the Credit Agreement and the respective successors, transferees
and assigns of any of the foregoing. This letter agreement may not be modified
except upon the mutual consent of the Collateral Agent, the Company and you.
Your obligations to the Collateral Agent pursuant to this letter agreement
shall continue in effect until the security interest of the Collateral Agent
in the Account has been terminated pursuant to the terms of the Credit
Agreement and related documents and the Collateral Agent has notified you of
such termination in writing. The Collateral Agent agrees to provide notice of
such termination to you upon the request of the Company on or after the
termination of the Collateral Agent's security interest in the Account
pursuant to the terms of the Credit Agreement and related documents. The
termination of this letter agreement shall not terminate the Account or alter
your obligations to the Company pursuant to any other agreement with respect
to the Account.
This letter agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this letter agreement by telecopier shall
be effective as delivery of a manually executed counterpart of this letter
agreement.
This letter agreement supersedes all prior agreements, oral or
written, with respect to the subject matter hereof and may not be amended,
modified or supplemented except by a writing signed by the Collateral Agent,
the Company and you.
This letter agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
Upon acceptance of this letter agreement it shall be the valid and
binding obligation of the Company, the Collateral Agent, and you, in
accordance with its terms.
Very truly yours,
[NAME OF GRANTOR]
By:
--------------------------------
Name:
Title:
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
By:
--------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED
as of the date first above written:
[DEPOSIT ACCOUNT BANK]
By:
-----------------------------
Name:
Title:
EXHIBIT A
TO
DEPOSIT ACCOUNT CONTROL AGREEMENT
Form of Collateral Agent Blockage Notice
[Deposit Account Bank]
[Address]
Re: Account No. ____________________ (the "Account")
Ladies and Gentlemen:
Reference is made to the Account and that certain Deposit Account
Control Agreement dated __________ __, 200__ among you, Citicorp North
America, Inc., as Collateral Agent (the "Collateral Agent"), and
[_____________] (the "Deposit Account Control Agreement"). Capitalized terms
used herein shall have the meanings given to them in the Deposit Account
Control Agreement.
The Collateral Agent hereby notifies you that, from and after the
date of this notice, you are hereby directed to transfer (by wire transfer or
other method of transfer mutually acceptable to you and the Collateral Agent)
to the Collateral Agent, in same day funds, on each business day, the entire
balance in the Account to the Collateral Agent Concentration Account specified
in clause (d) of the Deposit Account Control Agreement or to such other
account as the Collateral Agent may from time to time designate in writing.
Very truly yours,
CITICORP NORTH AMERICA, INC,
as Collateral Agent
By:
-------------------------------
Name:
Title:
ANNEX 2
TO
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
FORM OF CONTROL ACCOUNT AGREEMENT
_____________ __, 200__
[Name and Address of Approved
Securities Intermediary]
Ladies and Gentlemen:
The undersigned ___________________ (the "Pledgor") together with
certain of its affiliates are party to a Amended and Restated Pledge and
Security Agreement dated April 11, 2005 in favor of Citicorp North America,
Inc., as agent for the Secured Parties therein (the "Pledgee" and such
agreement the "Pledge and Security Agreement") pursuant to which a security
interest is granted by the Pledgor in all present and future Assets
(hereinafter defined) in Account No. _______ of the Pledgor (the "Pledge").
In connection therewith, the Pledgor hereby instructs you (the
"Approved Securities Intermediary") to do all of the following:
1. maintain the Account, as "________ - Citicorp North America, Inc.
Control Account";
2. hold in the Account the assets, including, without limitation, all
financial assets, securities, security entitlements and all other
property and rights now or hereafter received in such Account
(collectively the "Assets"), including, without limitation, those
assets listed on Schedule A (List of Assets) attached hereto and made
a part hereof;
3. provide to the Pledgee, with a duplicate copy to the Pledgor, a
monthly statement of Assets and a confirmation statement of each
transaction effected in the Account after such transaction is
effected; and
4. honor only the instructions or Entitlement Orders in regard to or in
connection with the Account given by an Authorized Officer of the
Pledgee, except that until such time as the Pledgee gives a written
notice to the Approved Securities Intermediary that the Pledgor's
rights under this sentence have been terminated (on which notice the
Approved Securities Intermediary may rely exclusively), the Pledgor
acting through an Authorized Officer may (a) exercise any voting
right that it may have with respect to any Asset, (b) give
instructions to enter into purchase or sale transactions in the
Account and (c) withdraw and receive for its own use all regularly
scheduled interest and dividends paid with respect to the Assets and
all cash proceeds of any sale of Assets ("Permitted Withdrawals");
provided, however, that, unless the Pledgee has consented to the
specific transaction, the Pledgor shall not instruct the Approved
Securities Intermediary to deliver and, except as may be required by
law or by court order, the Approved Securities Intermediary shall not
deliver, cash, securities, or proceeds from the sale of, or
distributions on, such securities out of the Account to the Pledgor
or to any other person or entity other than Permitted Withdrawals.
By its signature below, the Approved Securities Intermediary agrees
to comply with the Entitlement Orders and instructions of an Authorized
Officer of the Pledgee (including, without limitation, any instruction with
respect to sales, trades, transfers and withdrawals of cash or other of the
Assets) without the consent of the Pledgor or any other person (it being
understood and agreed by the Pledgor that the Approved Securities Intermediary
shall have no duty or obligation whatsoever of any kind or character to have
knowledge of the terms of the Pledge and Security Agreement or to determine
whether or not an event of default exists thereunder). The Pledgor hereby
agrees to indemnify and hold harmless the Approved Securities Intermediary,
its affiliates, officers and employees from and against all claims, causes of
action, liabilities, lawsuits, demands and damages, including, without
limitation, all court costs and reasonable attorney's fees, that may result by
reason of the Approved Securities Intermediary complying with such
instructions of the Pledgee.
The Authorized Officer of the Pledgee who shall give oral
instructions hereunder shall confirm the same in writing to the Approved
Securities Intermediary within five days after such oral instructions are
given.
For the purpose of this Agreement, the term "Authorized Officer of
the Pledgor" shall refer in the singular to ___________________ or
___________________ (each of whom is, on the date hereof, an officer or
director of the Pledgor) and "Authorized Officer of the Pledgee" shall refer
in the singular to any person who is a vice president or managing director of
the Pledgee. In the event that the Pledgor shall find it advisable to
designate a replacement for any of its Authorized Officers, written notice of
any such replacement shall be given to the Approved Securities Intermediary
and the Pledgee.
Except with respect to the obligations and duties as set forth
herein, this Agreement shall not impose or create any obligation or duty upon
the Approved Securities Intermediary greater than or in addition to the
customary and usual obligations and duties of the Approved Securities
Intermediary to the Pledgor.
As long as the Assets are pledged to the Pledgee, (i) the Approved
Securities Intermediary shall not invade the Assets to cover margin debits or
calls in any other account of the Pledgor and (ii) the Approved Securities
Intermediary agrees that, except for liens resulting from customary
commissions, fees, or charges based upon transactions in the Account, it
subordinates in favor of the Pledgee any security interest, lien or right of
setoff the Approved Securities Intermediary may have. The Approved Securities
Intermediary acknowledges that it has not received notice of any other
security interest in the Account or the Assets. In the event any such notice
is received, the Approved Securities Intermediary shall promptly notify the
Pledgee. The Pledgor herein represents that the Assets are free and clear of
any lien or encumbrance and agrees that, with the exception of the security
interest granted to the Pledgee, no lien or encumbrance shall be placed by it
on the Assets without the express written consent of both the Pledgee and the
Approved Securities Intermediary.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns and it and the
rights and obligations of the parties hereto shall be governed by, and
construed and interpreted in accordance with, and the law of the Approved
Securities Intermediary's jurisdiction for the purposes of Section 8-110 of
the Uniform Commercial Code in effect in the State of New York (the "UCC")
shall be, the law of the State of New York.
The Approved Securities Intermediary shall treat all property at any
time held by the Approved Securities Intermediary in the Account as financial
assets within the meaning of the UCC. The Approved Securities Intermediary
acknowledges that this Agreement constitutes written notification to the
Approved Securities Intermediary, pursuant to the UCC and any applicable
federal regulation for the Federal Reserve Book Entry System, of the Pledgee's
security interest in the Assets. The Pledgor, Pledgee and Approved Securities
Intermediary are entering into this Agreement to provide for the Pledgee's
control of the Assets and to confirm the first priority of the Pledgee's
security interest in the Assets. The Approved Securities Intermediary agrees
to promptly make and thereafter maintain all necessary entries or notations in
its books and records to reflect the Pledgee's security interest in the
Assets.
If any term or provision of this Agreement is determined to be
invalid or unenforceable, the remainder of this Agreement shall be construed
in all respects as if the invalid or unenforceable term or provision were
omitted. This Agreement may not be altered or amended in any manner without
the express written consent of the Pledgor, the Pledgee and the Approved
Securities Intermediary. This Agreement may be executed in any number of
counterparts, all of which shall constitute one original agreement.
This Agreement may be terminated by the Approved Securities
Intermediary upon 30 day's prior written notice to the Pledgor and the
Pledgee. Upon expiration of such 30-day period, the Approved Securities
Intermediary shall be under no further obligation except to hold the Assets in
accordance with the terms of this Agreement, pending receipt of written
instructions from the Pledgor and the Pledgee, jointly, regarding the further
disposition of the pledged Assets.
The Pledgor acknowledges that this Agreement supplements any existing
agreement of the Pledgor with the Approved Securities Intermediary and, except
as expressly provided herein, is in no way intended to abridge any right that
the Approved Securities Intermediary might otherwise have.
IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this
Agreement to be executed by their duly authorized officers all as of the date
first above written.
[NAME OF PLEDGOR]
By:
----------------------------------
Name:
Title:
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
By:
----------------------------------
Name:
Title:
ACCEPTED AND AGREED
as of the date first above written:
[APPROVED FINANCIAL INTERMEDIARY]
By:
---------------------------------
Name:
Title:
SCHEDULE A
TO
CONTROL AGREEMENT
List of Assets for Pledged Collateral Account Number: _______________
ANNEX 3
TO
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
FORM OF PLEDGE AMENDMENT
This PLEDGE AMENDMENT, dated as of __________ __, 200_, is delivered
pursuant to Section 4.4(a) (Pledged Collateral) of the Amended and Restated
Pledge and Security Agreement, dated as of April 11, 2005, by HLI Operating
Company, Inc. (the "Borrower"), Xxxxx Lemmerz International, Inc.
("Holdings"), the undersigned Grantor and the other Subsidiaries of the
Borrower from time to time party thereto as Grantors in favor of Citicorp
North America, Inc., as agent for the Secured Parties referred to therein (the
"Pledge and Security Agreement") and the undersigned hereby agrees that this
Pledge Amendment may be attached to the Pledge and Security Agreement and that
the Pledged Collateral listed on this Pledge Amendment shall be and become
part of the Collateral referred to in the Pledge and Security Agreement and
shall secure all Secured Obligations of the undersigned. Capitalized terms
used herein but not defined herein are used herein with the meaning given them
in the Pledge and Security Agreement.
[GRANTOR]
By:
---------------------------------
Name:
Title:
Pledged Stock
NUMBER OF
SHARES,
UNITS OR
ISSUER CLASS CERTIFICATE NO(S). PAR VALUE INTERESTS
------ ----- ------------------ --------- ---------
Pledged Debt
DESCRIPTION PRINCIPAL
ISSUER OF DEBT CERTIFICATE NO(S). FINAL MATURITY AMOUNT
------ ------- ------------------ -------------- ------
ACKNOWLEDGED AND AGREED
as of the date first above written:
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
By:
----------------------------------
Name:
Title:
ANNEX 4
TO
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT, dated as of _________ __, 20__, is delivered
pursuant to Section 7.11 (Additional Grantors) of the Amended and Restated
Pledge and Security Agreement, dated as of April 11, 2005, by HLI Operating
Company, Inc. (the "Borrower"), Xxxxx Lemmerz International, Inc.
("Holdings"), and the Subsidiaries of the Borrower listed on the signature
pages thereof in favor of the Citicorp North America, Inc., as agent for the
Secured Parties referred to therein (the "Pledge and Security Agreement").
Capitalized terms used herein but not defined herein are used with the
meanings given them in the Pledge and Security Agreement.
By executing and delivering this Joinder Agreement, the undersigned,
as provided in Section 7.11 (Additional Grantors) of the Pledge and Security
Agreement, hereby becomes a party to the Pledge and Security Agreement as a
Grantor thereunder with the same force and effect as if originally named as a
Grantor therein and, without limiting the generality of the foregoing, hereby
grants to the Collateral Agent, the following security interests:
(a) as collateral security for the full, prompt and complete payment
and performance when due (whether at stated maturity, by acceleration or
otherwise) of the Senior Secured Obligations of the undersigned, hereby
collaterally assigns, conveys, mortgages, pledges, hypothecates and transfers
to the Collateral Agent for the benefit of the Senior Secured Parties, and
grants to the Collateral Agent for the benefit of the Senior Secured Parties,
a Lien on and security interest in, all of its right, title and interest in,
to and under the Collateral and expressly assumes all obligations and
liabilities of a Grantor thereunder; and
(b) as collateral security for the full, prompt and complete payment
and performance when due (whether at stated maturity, by acceleration or
otherwise) of the Junior Secured Obligations of the undersigned, hereby
collaterally assigns, conveys, mortgages, pledges, hypothecates and transfers
to the Collateral Agent for the benefit of the Junior Secured Parties, and
grants to the Collateral Agent for the benefit of the Junior Secured Parties,
a Lien on and security interest in, all of its right, title and interest in,
to and under the Collateral and expressly assumes all obligations and
liabilities of a Grantor thereunder.
The information set forth in Annex 1-A is hereby added to the
information set forth in Schedules 1 through 6 to the Pledge and Security
Agreement.
The undersigned hereby represents and warrants that each of the
representations and warranties contained in Article III (Representations and
Warranties) of the Pledge and Security Agreement applicable to it is true and
correct on and as the date hereof as if made on and as of such date.
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement
to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:
------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED
as of the date first above written:
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
By:
---------------------------------
Name:
Title:
ANNEX 5
TO
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
FORM OF SHORT FORM COPYRIGHT SECURITY AGREEMENT
COPYRIGHT SECURITY AGREEMENT, dated as of _________ __, 200_, by HLI
OPERATING COMPANY, INC. (the "Borrower") and each of the other entities listed
on the signature pages hereof or that becomes a party hereto pursuant to
Section 7.11 (Additional Grantors) of the Pledge and Security Agreement
referred to below (each a "Grantor" and, collectively, the "Grantors"), in
favor of Citicorp North America, Inc. ("CNAI"), as agent for the Secured
Parties (as defined in the Credit Agreement referred to below) (in such
capacity, the "Collateral Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated
as of April 11, 2005 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, Xxxxx Lemmerz International, Inc., the Lenders and the Issuers party
thereto, CNAI, as collateral agent for the Secured Parties, CNAI, as
administrative agent for the First Lien Lenders, CNAI, as administrative agent
for the Term C Lenders, Xxxxxx Commercial Paper Inc., as syndication agent,
and General Electric Capital Corporation, as documentation agent, the Lenders
and the Issuers have severally agreed to make extensions of credit to the
Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, the Grantors other than the Borrower are party to the
Amended and Restated Guaranty pursuant to which they have guaranteed the
Obligations; and
WHEREAS, all the Grantors are party to an Amended and Restated Pledge
and Security Agreement of even date herewith in favor of the Collateral Agent
(the "Pledge and Security Agreement") pursuant to which the Grantors are
required to execute and deliver this Copyright Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders, the Issuers, the Collateral Agent and the Administrative Agents to
enter into the Credit Agreement and to induce the Lenders and the Issuers to
make their respective extensions of credit to the Borrower thereunder, each
Grantor hereby agrees with the Collateral Agent as follows:
Section 1. Defined Terms
Unless otherwise defined herein, terms defined in the Credit
Agreement or in the Pledge and Security Agreement and used herein have the
meaning given to them in the Credit Agreement or the Pledge and Security
Agreement.
Section 2. Grant of Security Interest in Copyright Collateral
Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations of such Grantor, hereby
collaterally assigns, conveys, mortgages, pledges, hypothecates and transfers
to the Collateral Agent for the benefit of the Secured Parties, and grants to
the Collateral Agent for the benefit of the Secured Parties a lien on and
security interest in, all of its right, title and interest in, to and under
the following Collateral of such Grantor (the "Copyright Collateral"):
(a) all of its Copyrights, including, without limitation, those
referred to on Schedule I hereto; and
(b) all rights to xxx at law or in equity for any infringement or
other impairment of the foregoing, including the right to receive all proceeds
and damages thereof.
Section 3. Security Agreement
The security interest granted pursuant to this Copyright Security
Agreement is granted in conjunction with the security interest granted to the
Collateral Agent in its separate capacities as set forth and pursuant to the
Pledge and Security Agreement and each Grantor hereby acknowledges and affirms
that the rights and remedies of the Collateral Agent with respect to the
security interest in the Copyright Collateral made and granted hereby are more
fully set forth in the Pledge and Security Agreement, the terms and provisions
of which are incorporated by reference herein as if fully set forth herein.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, each Grantor has caused this Copyright Security
Agreement to be executed and delivered by its duly authorized offer as of the
date first set forth above.
Very truly yours,
HLI OPERATING COMPANY, INC.,
as Borrower and Grantor
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX LEMMERZ INTERNATIONAL, INC.,
as Grantor
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX LEMMERZ INTERNATIONAL - XXXXX, INC.,
as Grantor
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ACCEPTED AND AGREED
as of the date first above written:
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
By:
------------------------------
Name:
Title:
ACKNOWLEDGMENT OF GRANTOR
STATE OF ________________)
) ss.
COUNTY OF _______________)
On this ___ day of April, 2005 before me personally appeared
________________, proved to me on the basis of satisfactory evidence to be the
person who executed the foregoing instrument on behalf of _________________,
who being by me duly sworn did depose and say that he is an authorized officer
of said corporation, that the said instrument was signed on behalf of said
corporation as authorized by its Board of Directors and that he acknowledged
said instrument to be the free act and deed of said corporation.
____________________________
Notary Public
SCHEDULE I
TO
COPYRIGHT SECURITY AGREEMENT
Copyright Registrations
A. REGISTERED COPYRIGHTS
[Include Copyright Registration Number and Date]
B. COPYRIGHT APPLICATIONS
ANNEX 6
TO
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
FORM OF SHORT FORM PATENT SECURITY AGREEMENT
PATENT SECURITY AGREEMENT, dated as of _________ __, 200_, by HLI
Operating Company, Inc. (the "Borrower") and each of the other entities listed
on the signature pages hereof or which becomes a party hereto pursuant to
Section 7.11 (Additional Grantors) of the Pledge and Security Agreement
referred to below (each a "Grantor" and, collectively, the "Grantors"), in
favor of Citicorp North America, Inc. ("CNAI"), as agent for the Secured
Parties (as defined in the Credit Agreement referred to below) (in such
capacity, the "Collateral Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated
as of April 11, 2005 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, Xxxxx Lemmerz International, Inc., the Lenders and Issuers party
thereto, CNAI, as collateral agent for the Secured Parties, CNAI, as
administrative agent for the First Lien Lenders, CNAI, as administrative agent
for the Term C Lenders, Xxxxxx Commercial Paper Inc., as syndication agent,
and General Electric Capital Corporation, as documentation agent, the Lenders
and the Issuers have severally agreed to make extensions of credit to the
Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, the Grantors other than the Borrower are party to the
Amended and Restated Guaranty pursuant to which they have guaranteed the
Obligations; and
WHEREAS, all the Grantors are party to an Amended and Restated Pledge
and Security Agreement of even date herewith in favor of the Collateral Agent
(the "Pledge and Security Agreement") pursuant to which the Grantors are
required to execute and deliver this Patent Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders, the Issuers, the Collateral Agent and the Administrative Agents to
enter into the Credit Agreement and to induce the Lenders and the Issuers to
make their respective extensions of credit to the Borrower thereunder, each
Grantor hereby agrees with the Collateral Agent as follows:
Section 4. Defined Terms
Unless otherwise defined herein, terms defined in the Credit
Agreement or in the Pledge and Security Agreement and used herein have the
meaning given to them in the Credit Agreement or the Pledge and Security
Agreement.
Section 5. Grant of Security Interest in Patent Collateral
Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations of such Grantor, hereby
collaterally assigns, conveys, mortgages, pledges, hypothecates and transfers
to the Collateral Agent for the benefit of the Secured Parties, and grants to
the Collateral Agent for the benefit of the Secured Parties a lien on and
security interest in, all of its right, title and interest in, to and under
the following Collateral of such Grantor (the "Patent Collateral"):
(a) all of its Patents, including, without limitation, those referred
to on Schedule I hereto;
(b) all reissues and continuations of the foregoing; and
(c) all rights to xxx at law or in equity for any infringement or
other impairment of the foregoing, including the right to receive all proceeds
and damages thereof.
Section 6. Security Agreement
The security interest granted pursuant to this Patent Security
Agreement is granted in conjunction with the security interest granted to the
Collateral Agent in its separate capacities as set forth and pursuant to the
Pledge and Security Agreement and each Grantor hereby acknowledges and affirms
that the rights and remedies of the Collateral Agent with respect to the
security interest in the Patent Collateral made and granted hereby are more
fully set forth in the Pledge and Security Agreement, the terms and provisions
of which are incorporated by reference herein as if fully set forth herein.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, each Grantor has caused this Patent Security
Agreement to be executed and delivered by its duly authorized offer as of the
date first set forth above.
Very truly yours,
HLI OPERATING COMPANY, INC.,
as Borrower and Grantor
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX LEMMERZ INTERNATIONAL, INC.,
as Grantor
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX LEMMERZ INTERNATIONAL -
EQUIPMENT AND ENGINEERING, INC.,
as Grantor
By:
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HLI SUSPENSION HOLDING COMPANY, INC.,
as Grantor
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ACCEPTED AND AGREED
as of the date first above written:
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
By:
--------------------------------
Name:
Title:
ACKNOWLEDGEMENT OF GRANTOR
STATE OF ________________)
) ss.
COUNTY OF _______________)
On this ___ day of April, 2005 before me personally appeared
_______________, proved to me on the basis of satisfactory evidence to be the
person who executed the foregoing instrument on behalf of
______________________, who being by me duly sworn did depose and say that he
is an authorized officer of said corporation, that the said instrument was
signed on behalf of said corporation as authorized by its Board of Directors
and that he acknowledged said instrument to be the free act and deed of said
corporation.
____________________________
Notary Public
SCHEDULE I
TO
PATENT SECURITY AGREEMENT
Patent Registrations
A. REGISTERED PATENTS
[Include Patent Registration Number and Date]
B. PATENT APPLICATIONS
ANNEX 7
TO
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
FORM OF SHORT FORM TRADEMARK SECURITY AGREEMENT
TRADEMARK SECURITY AGREEMENT, dated as of _________ __, 200_, by HLI
Operating Company, Inc. ("Borrower") and each of the other entities listed on
the signature pages hereof or which becomes a party hereto pursuant to Section
7.11 (Additional Grantors) of the Pledge and Security Agreement referred to
below (each a "Grantor" and, collectively, the "Grantors"), in favor of
Citicorp North America, Inc. ("CNAI"), as agent for the Secured Parties (as
defined in the Credit Agreement referred to below) (in such capacity, the
"Collateral Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated
as of April 11, 2005 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, Xxxxx Lemmerz International, Inc., the Lenders and Issuers party
thereto, CNAI, as collateral agent for the Secured Parties, CNAI, as
administrative agent for the First Lien Lenders, CNAI, as administrative agent
for the Term C Lenders, Xxxxxx Commercial Paper Inc., as syndication agent,
and General Electric Capital Corporation, as documentation agent, the Lenders
and the Issuers have severally agreed to make extensions of credit to the
Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, the Grantors other than the Borrower are party to the
Amended and Restated Guaranty pursuant to which they have guaranteed the
Obligations; and
WHEREAS, all the Grantors are party to an Amended and Restated Pledge
and Security Agreement of even date herewith in favor of the Collateral Agent
(the "Pledge and Security Agreement") pursuant to which the Grantors are
required to execute and deliver this Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders, the Issuers, the Collateral Agent and the Administrative Agents to
enter into the Credit Agreement and to induce the Lenders and the Issuers to
make their respective extensions of credit to the Borrower thereunder, each
Grantor hereby agrees with the Collateral Agent as follows:
Section 7. Defined Terms
Unless otherwise defined herein, terms defined in the Credit
Agreement or in the Pledge and Security Agreement and used herein have the
meaning given to them in the Credit Agreement or the Pledge and Security
Agreement.
Section 8. Grant of Security Interest in Trademark Collateral
Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations of such Grantor, hereby
collaterally assigns, conveys, mortgages, pledges, hypothecates and transfers
to the Collateral Agent for the benefit of the Secured Parties, and grants to
the Collateral Agent for the benefit of the Secured Parties a lien on and
security interest in, all of its right, title and interest in, to and under
the following Collateral of such Grantor (the "Trademark Collateral"):
(a) all of its Trademarks, including, without limitation, those
referred to on Schedule I hereto;
(b) all goodwill of the business connected with the use of, and
symbolized by, each Trademark and each Trademark License; and
(c) all rights to xxx at law or in equity for any infringement or
other impairment of the foregoing, including the right to receive all proceeds
and damages thereof.
Section 9. Security Agreement
The security interest granted pursuant to this Trademark Security
Agreement is granted in conjunction with the security interest granted to the
Collateral Agent in its separate capacities as set forth and pursuant to the
Pledge and Security Agreement and each Grantor hereby acknowledges and affirms
that the rights and remedies of the Collateral Agent with respect to the
security interest in the Trademark Collateral made and granted hereby are more
fully set forth in the Pledge and Security Agreement, the terms and provisions
of which are incorporated by reference herein as if fully set forth herein.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, each Grantor has caused this Trademark Security
Agreement to be executed and delivered by its duly authorized offer as of the
date first set forth above.
Very truly yours,
HLI OPERATING COMPANY, INC.,
as Borrower and Grantor
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX LEMMERZ INTERNATIONAL, INC.,
as Grantor
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX LEMMERZ INTERNATIONAL -
EQUIPMENT AND ENGINEERING, INC.,
as Grantor
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HLI SUSPENSION HOLDING COMPANY, INC.,
as Grantor
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX LEMMERZ INTERNATIONAL - PCA, INC.,
as Grantor
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ACCEPTED AND AGREED
as of the date first above written:
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
By:
-----------------------------------
Name:
Title:
ACKNOWLEDGEMENT OF GRANTOR
STATE OF ________________)
) ss.
COUNTY OF _______________)
On this ___ day of April, 2005 before me personally appeared
______________________, proved to me on the basis of satisfactory evidence to
be the person who executed the foregoing instrument on behalf of
_______________________, who being by me duly sworn did depose and say that he
is an authorized officer of said corporation, that the said instrument was
signed on behalf of said corporation as authorized by its Board of Directors
and that he acknowledged said instrument to be the free act and deed of said
corporation.
____________________________
Notary Public
SCHEDULE I
TO
TRADEMARK SECURITY AGREEMENT
Trademark Registrations
A. REGISTERED TRADEMARKS
[Include trademark registration number and date of registration]
B. TRADEMARK APPLICATIONS
TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS..............................................1
Section 1.1 Definitions.......................................1
Section 1.2 Certain Other Terms...............................5
ARTICLE II GRANTS OF SECURITY INTERESTS...............................6
Section 2.1 Collateral........................................6
Section 2.2 Grants of Security Interests in Collateral........7
Section 2.3 Cash Collateral Accounts..........................7
ARTICLE III REPRESENTATIONS AND WARRANTIES.............................8
Section 3.1 Title; No Other Liens.............................8
Section 3.2 Perfection and Priority...........................8
Section 3.3 Name; Jurisdiction of Organization; Chief
Executive Office..................................8
Section 3.4 Inventory and Equipment...........................8
Section 3.5 Pledged Collateral................................9
Section 3.6 Accounts..........................................9
Section 3.7 Intellectual Property.............................9
Section 3.8 Deposit Accounts; Control Accounts...............10
Section 3.9 Commercial Tort Claims...........................10
ARTICLE IV COVENANTS.................................................10
Section 4.1 Generally........................................10
Section 4.2 Maintenance of Perfected Security Interest;
Further Documentation............................11
Section 4.3 Changes in Locations, Name, Etc..................11
Section 4.4 Pledged Collateral...............................12
Section 4.5 Control Accounts; Approved Deposit Accounts......13
Section 4.6 Accounts.........................................14
Section 4.7 Delivery of Instruments and Chattel Paper........14
Section 4.8 Intellectual Property............................14
Section 4.9 Vehicles.........................................16
Section 4.10 Payment of Obligations...........................16
Section 4.11 Insurance........................................16
Section 4.12 Notice of Commercial Tort Claims.................17
ARTICLE V REMEDIAL PROVISIONS.......................................17
Section 5.1 Code and Other Remedies..........................17
Section 5.2 Accounts and Payments in Respect of General
Intangibles......................................18
Section 5.3 Pledged Collateral...............................19
Section 5.4 Proceeds to be Turned Over To Collateral Agent...20
Section 5.5 Registration Rights..............................20
Section 5.6 Deficiency.......................................21
ARTICLE VI THE COLLATERAL AGENT......................................21
Section 6.1 Collateral Agent's Appointment as Attorney-
in-Fact..........................................21
Section 6.2 Duty of Collateral Agent.........................23
Section 6.3 Authorization of Financing Statements............23
Section 6.4 Authority of Collateral Agent....................23
ARTICLE VII MISCELLANEOUS.............................................24
Section 7.1 Amendments in Writing............................24
Section 7.2 Notices..........................................24
Section 7.3 No Waiver by Course of Conduct; Cumulative
Remedies.........................................24
Section 7.4 Amendment and Restatement; Effectiveness ........24
Section 7.5 Successors and Assigns...........................24
Section 7.6 Counterparts.....................................24
Section 7.7 Severability.....................................25
Section 7.8 Section Headings.................................25
Section 7.9 Entire Agreement.................................25
Section 7.10 Governing Law....................................25
Section 7.11 Additional Grantors..............................25
Section 7.12 Release of Collateral............................25
Section 7.13 Reinstatement....................................26
TABLE OF CONTENTS
(continued)
ANNEXES AND SCHEDULES
Annex 1 Form of Deposit Account Control Agreement
Annex 2 Form of Control Account Agreement
Annex 3 Form of Pledge Amendment
Annex 4 Form of Joinder Agreement
Annex 5 Form of Short Form Copyright Security Agreement
Annex 6 Form of Short Form Patent Security Agreement
Annex 7 Form of Short Form Trademark Security Agreement
Schedule 1 State of Incorporation; Principal Executive Office
Schedule 2 Pledged Collateral
Schedule 3 Filings
Schedule 4 Location of Inventory and Equipment
Schedule 5 Intellectual Property
Schedule 6 Bank Accounts; Control Accounts
Schedule 7 Commercial Tort Claims
