Exhibit 10.1(k)
AMENDED AND RESTATED COLLATERAL AGREEMENT
AMENDED AND RESTATED COLLATERAL AGREEMENT, dated as of March
7, 2000, made by each of the signatories hereto (together with any other entity
that may become a party hereto as provided herein, the "Grantors"), in favor of
CITIBANK, N.A., as Documentation Agent (in such capacity, the "Documentation
Agent") for the banks and other financial institutions (the "Lenders") from time
to time parties to the Second Amended and Restated Credit Agreement, dated as of
September 15, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Hexcel Corporation (the "Company") and the
Foreign Borrowers from time to time party thereto (together with the Company,
the "Borrowers"), the Lenders, the Documentation Agent and Credit Suisse First
Boston, as Administrative Agent (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Lenders have agreed to make extensions of credit
from time to time to the Borrowers pursuant to the Credit Agreement;
WHEREAS, each Grantor will directly and indirectly benefit
from the loans and other financial accommodations made to the Borrowers pursuant
to the Credit Agreement;
WHEREAS, the Grantors are parties to the Collateral Agreement,
dated as of September 15, 1998 (as amended, supplemented or otherwise modified
from time to time, the "Existing Collateral Agreement"), with the Documentation
Agent;
WHEREAS, it is a condition precedent to the effectiveness of
the Third Amendment to the Credit Agreement that the Grantors execute and
deliver this Agreement;
WHEREAS, the parties to the Existing Collateral Agreement
desire to amend the Existing Collateral Agreement, but only upon the terms and
subject to the conditions set forth herein, and each of the parties to the
Existing Collateral Agreement, for convenience of reference, has agreed to
restate the Existing Collateral Agreement as so amended; and
WHEREAS, each of the parties hereto is agreeable to the terms
and provisions of the Existing Collateral Agreement as amended and restated
hereby;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties to the Existing Collateral Agreement
agree that the Existing Collateral Agreement shall be and hereby is amended and
restated in its entirety and the parties hereto hereby agree as follows:
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SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement, and the following terms are used
herein as defined in the New York UCC: Accounts, Certificated Security,
Chattel Paper, Equipment, Instruments and Inventory.
(b) The following terms shall have the following meanings:
"Agents": collectively, the Administrative Agent and the
Documentation Agent.
"Agreement": this Amended and Restated Collateral Agreement,
as the same may be amended, supplemented or otherwise modified from
time to time.
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by
the Documentation Agent as provided in Section 6.1 or 6.4.
"Guarantors": the collective reference to the Company and
the Subsidiary Guarantors.
"Intercompany Note": each note identified on Schedule 3 and
any promissory note evidencing loans made by the Company or any of its
Subsidiaries (other than AcquisitionCo or any of its Subsidiaries) to
AcquisitionCo or any of its Subsidiaries from the proceeds of the
Tranche A Loans and Tranche B Loans and any portion of the Revolving
Loans and the European Loans used to finance the Acquisition.
"Investment Property": all Pledged Stock and all Pledged
Notes.
"Issuers": the collective reference to each Grantor's
Material Subsidiaries which are organized under the laws of any
jurisdiction within the United States of America (other than any such
Subsidiary whose sole purpose is holding the Capital Stock of one or
more of the Company's Foreign Subsidiaries) and are required to be
Grantors hereunder in accordance with Section 13.9 of the Credit
Agreement.
"New York UCC": the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Obligations": as defined in the Credit Agreement.
"Pledged Notes": all Intercompany Notes at any time issued
to any Grantor.
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"Pledged Stock": the shares of Capital Stock listed on
Schedule 2, together with any other shares, stock certificates,
options or rights of any nature whatsoever in respect of the Capital
Stock of any Issuer that may be issued or granted to, or held by, any
Grantor while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in
Section 9-306(1) of the New York UCC and, in any event, shall include,
without limitation, all dividends or other income from the Investment
Property, collections thereon or distributions or payments with
respect thereto.
"Receivable": any right to payment for goods sold or leased
or for services rendered, whether or not such right is evidenced by an
Instrument or Chattel Paper and whether or not it has been earned by
performance (including, without limitation, any Account).
"Securities Act": the Securities Act of 1933, as amended.
1.2 Other Definitional Provisions. (a) The words "hereof,"
"herein", "hereto" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section and Schedule references are to this
Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. (a) The Company hereby irrevocably and
unconditionally guarantees to the Documentation Agent, for the benefit of the
Agents and the Lenders (and their affiliates and subsidiaries which hold
Obligations), the full and prompt payment when due (whether at maturity or
earlier, by reason of acceleration or otherwise, and at all times thereafter) of
the Obligations of the Foreign Borrowers (including, without limitation,
interest accruing following the commencement of any insolvency or bankruptcy
case or proceeding or other similar case or proceeding in respect of any Foreign
Borrower, at the applicable rate specified in the Credit Agreement, whether or
not such interest is allowed as a claim in such case or proceeding).
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(b) Each Subsidiary Guarantor jointly and severally hereby
irrevocably and unconditionally guarantees to the Documentation Agent, for the
benefit of the Agents and the Lenders (and their affiliates and subsidiaries
which hold Obligations), the full and prompt payment when due (whether at
maturity or earlier, by reason of acceleration or otherwise, and at all times
thereafter) of the Obligations (including, without limitation, interest accruing
following the commencement of any insolvency or bankruptcy case or proceeding or
other similar case or proceeding in respect of any Borrower, at the applicable
rate specified in the Credit Agreement, whether or not such interest is allowed
as a claim in such case or proceeding).
(c) Anything herein or in any other Credit Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Credit Documents shall in no event exceed the amount which can
be guaranteed by such Guarantor under applicable federal and state laws relating
to the insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(d) Each Guarantor agrees that the Obligations may at any time
and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of either Agent or any Lender hereunder.
(e) The guarantee contained in this Section 2 shall remain in
full force and effect until all the Obligations (including, without limitation,
the obligations of each Guarantor under this Agreement) shall have been
satisfied by payment in full, no Letter of Credit shall be outstanding and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement the Borrowers may be free from any Obligations.
(f) No payment made by the Borrowers, any of the Guarantors,
any other guarantor or any other Person or received or collected by the
Documentation Agent, the Administrative Agent or any Lender from any of the
Borrowers, any of the Guarantors, any other guarantor or any other Person by
virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of any Guarantor hereunder which shall, notwithstanding any such
payment (other than any payment made by such Guarantor in respect of the
Obligations or any payment received or collected from such Guarantor in respect
of the Obligations), remain liable for the Obligations up to the maximum
liability of such Guarantor hereunder until the Obligations are paid in full, no
Letter of Credit shall be outstanding and the Commitments are terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that
to the extent that a Guarantor shall have paid more than its proportionate share
of any payment made hereunder, such Guarantor shall be entitled to seek and
receive contribution from and against any other Guarantor hereunder which has
not paid its proportionate share of such payment and each other Guarantor agrees
that it will contribute its proportionate share of such payment to the
applicable Guarantor. Each Guarantor's right of contribution shall be subject to
the terms and conditions of Section 2.3. The provisions of this Section 2.2
shall in no respect limit the obligations and liabilities of any Guarantor to
the Agents and the Lenders, and each Guarantor shall remain liable to the Agents
and the Lenders for the full amount guaranteed by such Guarantor hereunder.
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2.3 No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
the Agents or any Lender, no Guarantor shall be entitled to be subrogated to any
of the rights of the Agents or any Lender against the Borrowers or any other
Guarantor or any collateral security or guarantee or right of offset held by the
Agents or any Lender for the payment of the Obligations, nor shall any Guarantor
seek or be entitled to seek any contribution or reimbursement from the Borrower
or any other Guarantor in respect of payments made by such Guarantor hereunder,
until all amounts owing to the Agents and the Lenders by the Borrowers on
account of the Obligations are paid in full, no Letter of Credit shall be
outstanding and the Commitments are terminated. If any amount shall be paid to
any Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Agents and the Lenders, segregated from other funds
of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be
turned over to the Documentation Agent in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Documentation Agent, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as the Documentation Agent may determine.
2.4 Amendments, etc. with Respect to the Obligations. To the
extent permitted by applicable law, each Guarantor shall remain obligated
hereunder notwithstanding that, without any reservation of rights against any
Guarantor and without notice to or further assent by any Guarantor, any demand
for payment of any of the Obligations made by an Agent or any Lender may be
rescinded by such Agent or such Lender and any of the Obligations continued, and
the Obligations, or the liability of any other Person upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by an Agent or any Lender, and the Credit Agreement and the other
Credit Documents and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in
part, as the Documentation Agent (or the Required Lenders or all Lenders, as the
case may be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by any Agent or any Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither any Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Obligations or for the guarantee contained in this Section 2 or any property
subject thereto.
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2.5 Guarantee Absolute and Unconditional. To the extent
permitted by applicable law, each Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and notice of
or proof of reliance by any Agent or any Lender upon the guarantee contained in
this Section 2 or acceptance of the guarantee contained in this Section 2; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantee contained in this Section 2; and all dealings between the
Borrowers and any of the Guarantors, on the one hand, and the Agents and the
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon the guarantee contained in this Section 2.
To the extent permitted by applicable law, each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrowers or any of the Guarantors with respect to the Obligations.
Each Guarantor understands and agrees that the guarantee contained in this
Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Credit Agreement or any other Credit Document, any of the Obligations or any
other collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Agents or any Lender, (b)
any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrowers or any other Person against the Agents or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrowers
or such Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrowers for the Obligations, or of such
Guarantor under the guarantee contained in this Section 2, in bankruptcy or in
any other instance. When making any demand hereunder or otherwise pursuing its
rights and remedies hereunder against any Guarantor, the Agents or any Lender
may, but shall be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against the Borrowers, any other
Guarantor or any other Person or against any collateral security or guarantee
for the Obligations or any right of offset with respect thereto, and any failure
by the Agents or any Lender to make any such demand, to pursue such other rights
or remedies or to collect any payments from the Borrowers, any other Guarantor
or any other Person or to realize upon any such collateral security or guarantee
or to exercise any such right of offset, or any release of the Borrowers, any
other Guarantor or any other Person or any such collateral security, guarantee
or right of offset, shall not relieve any Guarantor of any obligation or
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Agents or any
Lender against any Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2
shall continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the Obligations is rescinded or
must otherwise be restored or returned or repaid in a good faith compromised
settlement of a pending avoidance claim by any Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrowers or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrowers or any Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Documentation Agent without set-off or
counterclaim in Dollars at the office of the Documentation Agent located at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 3. GRANT OF SECURITY INTEREST
3.1 Grant of Security Interest. Each Grantor hereby assigns
and transfers to the Documentation Agent, and hereby grants to the Documentation
Agent, for the ratable benefit of the Agents and the Lenders (and their
affiliates and subsidiaries which hold Obligations), a security interest in, all
of the following property now owned or at any time hereafter acquired by such
Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the "Collateral"), as
collateral security for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of such Grantor's
Obligations:
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(a) all Receivables;
(b) all Equipment;
(c) all Inventory;
(d) all Investment Property;
(e) all books and records pertaining to the Collateral; and
(f) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the foregoing.
Notwithstanding the foregoing, to the extent that the grant of
the security interest specified in this Section 3.1 would otherwise cover
Collateral of the Engineered Products Division (the "Division") of the Company,
such grant shall not become effective unless and until by September 30, 2000 the
Company shall not have completed the sale of the Division for consideration
which shall include a cash portion in an amount not less than $150 million of
Net Proceeds and satisfied the other requirements of Section 2.1(i) of the Third
Amendment to the Credit Agreement. Furthermore, the covenants and
representations and warranties contained in this Agreement that relate to any
Collateral described in the preceding sentence shall not become effective unless
and until the security interest in such assets created hereby shall become
effective pursuant to such preceding sentence.
Notwithstanding anything to the contrary herein, neither the
grant of the security interest specified in this Section 3.1 nor any reference
to Collateral contained in this Agreement shall include any Equipment covered by
the terms and provisions of the Lease Agreement. For the purposes of the
preceding sentence, Equipment shall have the meaning given to such term in the
Lease Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrowers thereunder, each Grantor hereby represents and warrants
to the Agents and each Lender that:
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4.1 Title; No Other Liens. Except for the security interest
granted to the Documentation Agent for the ratable benefit of the Agents and the
Lenders (and their affiliates and subsidiaries which hold Obligations) pursuant
to this Agreement and the other Liens permitted to exist on the Collateral by
the Credit Agreement, such Grantor owns each item of the Collateral attributable
to such Grantor free and clear of any and all Liens or claims of others. No
financing statement or other public notice with respect to all or any part of
the Collateral is on file or of record in any public office, except such as have
been filed in favor of the Documentation Agent, for the ratable benefit of the
Agents and the Lenders (and their affiliates and subsidiaries which hold
Obligations), pursuant to this Agreement or as are permitted by the Credit
Agreement.
4.2 Perfected First Priority Liens. Except in respect of (i)
any Instruments, Certificated Securities, Chattel Paper or letters of credit not
delivered to the Documentation Agent pursuant to Section 5.1 or (ii) Excluded
Equipment and Excluded Inventory as defined in Section 4.4 and (iii) subject to
compliance with the Federal Assignment of Claims Act of 1940, as amended, or
other similar state statutes as applicable, the security interests granted
pursuant to this Agreement (a) constitute, or upon completion of the filings
specified on Schedule 6 (which, in the case of all filings and other documents
referred to on said Schedule, have been delivered to the Documentation Agent in
completed and duly executed form) will constitute valid perfected security
interests in all of the Collateral in favor of the Documentation Agent, for the
ratable benefit of the Agents and the Lenders (and their affiliates and
subsidiaries which hold Obligations), as collateral security for such Grantor's
Obligations, enforceable in accordance with the terms hereof against all
creditors of such Grantor and any Persons purporting to purchase any Collateral
from such Grantor and (b) are prior to all other Liens on the Collateral in
existence on the date hereof except for other Liens permitted by the Credit
Agreement which have priority over the Liens on the Collateral by operation of
law.
4.3 Chief Executive Office. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office or sole place of business are specified on Schedule 4.
4.4 Inventory and Equipment. On the date hereof, the Inventory
and the Equipment of such Grantor (other than (i) Equipment located at
residences of sales employees of such Grantor (the aggregate amount of which
shall not exceed $1 million) (the "Excluded Equipment") and (ii) Inventory
delivered on consignment to third parties (the aggregate amount of which shall
not exceed $5 million) (the "Excluded Inventory") and (iii) mobile goods) are
kept at the locations listed on Schedule 5.
4.5 Investment Property. (a) The shares of Pledged Stock
pledged by such Grantor hereunder constitute all the issued and outstanding
shares of all classes of the Capital Stock of each Issuer owned by such Grantor.
(b) All the shares of the Pledged Stock 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, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
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(d) Such Grantor is the record and beneficial owner of, and
has good and marketable title to, the Investment Property pledged by it
hereunder, free of any and all Liens or options in favor of, or claims of, any
other Person, except the security interest created by this Agreement.
(e) The undated stock powers delivered to the Documentation
Agent are duly executed and give the Documentation Agent the authority they
purport to confer.
4.6 Receivables. (a) No amount payable to such Grantor under
or in connection with any Receivable is evidenced by any Instrument or Chattel
Paper which has not been delivered to the Documentation Agent, except for any
such Instruments or Chattel Paper that have face amounts less than $2 million in
the aggregate at any given time.
(b) None of the obligors on any Receivables is a Governmental
Authority under the laws of the United States or any jurisdiction therein,
except for any such Receivables that do not exceed $2 million in the aggregate
at any given time.
(c) The amounts represented by such Grantor to the Lenders
from time to time as owing to such Grantor in respect of the Receivables will at
such times be accurate.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Agents and the
Lenders that, from and after the date of this Agreement until the Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
5.1 Delivery of Instruments, Certificated Securities and
Chattel Paper. If any amounts payable under or in connection with any of the
Collateral shall be or become evidenced by any Instruments, Certificated
Securities or Chattel Paper, such Instruments, Certificated Securities and
Chattel Paper shall be immediately delivered to the Documentation Agent, duly
indorsed in a manner reasonably satisfactory to the Documentation Agent, to be
held as Collateral pursuant to this Agreement. Notwithstanding anything to the
contrary herein, the preceding sentence of this Section 5.1 shall not apply to
(a) Instruments, Certificated Securities or Chattel Paper that have face amounts
less than $2 million in the aggregate at any given time, except as otherwise
required pursuant to Section 5.7 below or (b) letters of credit supporting any
payments with respect to any Collateral; provided that, at any time after the
occurrence and during the continuance of an Event of Default, at the request of
the Documentation Agent, such Instruments, Certificated Securities, Chattel
Paper and any letters of credit supporting any payment with respect to any
Collateral shall be immediately delivered to the Documentation Agent, duly
indorsed in a manner reasonably satisfactory to the Documentation Agent, to be
held as Collateral pursuant to this Agreement.
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5.2 Maintenance of Insurance. (a) Such Grantor will maintain,
with financially sound and reputable companies, insurance policies (i) insuring
the Inventory and Equipment against loss by fire, explosion, theft and such
other casualties as may be reasonably satisfactory to the Documentation Agent
and (ii) insuring such Grantor, the Documentation Agent and the Lenders against
liability for personal injury and property damage relating to such Inventory and
Equipment, such policies to be in such form and amounts and having such coverage
as may be reasonably satisfactory to the Documentation Agent and the Lenders.
(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least 30 days after receipt by the Documentation Agent of
written notice thereof, (ii) name the Documentation Agent as insured party or
loss payee, (iii) if reasonably requested by the Documentation Agent, include a
breach of warranty clause and (iv) be reasonably satisfactory in all other
respects to the Documentation Agent.
(c) At any time after the occurrence and during the
continuance of an Event of Default, at the request of the Documentation Agent,
the Company shall deliver to the Documentation Agent and the Lenders a written
report of a reputable insurance broker with respect to such insurance
substantially concurrently with each delivery of the Company's audited annual
financial statements and such supplemental reports with respect thereto as the
Documentation Agent may from time to time reasonably request.
5.3 Payment of Obligations. Such Grantor will 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 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.
5.4 Maintenance of Perfected Security Interest; Further
Documentation.
(a) Such Grantor shall maintain the security interest created
by this Agreement as a perfected security interest having at least the priority
described in Section 4.2 and shall defend such security interest against the
claims and demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Documentation Agent and
the Lenders from time to time statements and schedules further identifying and
describing the Collateral of such Grantor and such other reports in connection
therewith as the Documentation Agent may reasonably request, all in reasonable
detail.
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(c) At any time and from time to time, upon the written
request of the Documentation Agent, and at the sole expense of such Grantor,
such Grantor will promptly and duly execute and deliver, and have recorded, such
further instruments and documents and take such further actions as the
Documentation 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, without limitation, (i) filing any financing or
continuation statements under the Uniform Commercial Code (or other similar
laws) in effect in any jurisdiction with respect to the security interests
created hereby and (ii) in the case of Investment Property pledged hereunder and
any other relevant Collateral, taking any actions necessary to enable the
Documentation Agent to obtain "control" (within the meaning of the applicable
Uniform Commercial Code) with respect thereto.
5.5 Changes in Locations, Name, etc. Such Grantor will not,
except upon 10 days' prior written notice to the Documentation Agent and
delivery to the Documentation Agent of (a) all additional executed financing
statements and other documents reasonably requested by the Documentation Agent
to maintain the validity, perfection and priority of the security interests
provided for herein and (b) if applicable, a written supplement to Schedule 5
showing any additional location at which Inventory (other than Excluded
Inventory) or Equipment shall be kept:
(i) permit any of the Inventory (other than Excluded
Inventory) or Equipment to be kept at a location other than those
listed on Schedule 5;
(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 4.3, or
(iii) change its name, identity or corporate structure to such
an extent that any financing statement filed by the Documentation Agent
in connection with this Agreement would become misleading.
5.6 Notices. Such Grantor will advise the Documentation Agent
and the Lenders promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or
Liens permitted under the Credit Agreement) on any of the Collateral which would
materially adversely affect the ability of the Documentation Agent to exercise
any of its remedies hereunder; and
(b) of the occurrence of any other event which could
reasonably be expected to have a material adverse effect on the security
interests created hereby.
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5.7 Investment Property. (a) If such Grantor shall become
entitled to receive or shall receive any stock certificate (including, without
limitation, any certificate representing a stock dividend or a distribution in
connection with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or rights in
respect of the Capital Stock of any Issuer, whether in addition to, in
substitution of, as a conversion of, or in exchange for, any shares of the
Pledged Stock, or otherwise in respect thereof, such Grantor shall accept the
same as the agent of the Documentation Agent and the Lenders, hold the same in
trust for the Documentation Agent and the Lenders and deliver the same forthwith
to the Documentation Agent in the exact form received, duly indorsed by such
Grantor to the Documentation Agent, if required, together with an undated stock
power covering such certificate duly executed in blank by such Grantor and with,
if the Documentation Agent so requests, signature guaranteed, to be held by the
Documentation Agent, subject to the terms hereof, as additional collateral
security for the Obligations. Any sums paid upon or in respect of the Investment
Property pledged hereunder upon the liquidation or dissolution of any Issuer
shall be paid over to the Documentation Agent to be held by it hereunder as
additional collateral security for the Obligations, and in case any distribution
of capital shall be made on or in respect of the Investment Property pledged
hereunder or any property shall be distributed upon or with respect to the
Investment Property pledged hereunder pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the reorganization
thereof, the property so distributed shall, unless otherwise subject to a
perfected security interest in favor of the Documentation Agent, be delivered to
the Documentation Agent to be held by it hereunder as additional collateral
security for the Obligations. If any sums of money or property so paid or
distributed in respect of the Investment Property pledged hereunder shall be
received by such Grantor, such Grantor shall, until such money or property is
paid or delivered to the Documentation Agent, hold such money or property in
trust for the Lenders, segregated from other funds of such Grantor, as
additional collateral security for the Obligations.
(b) Without the prior written consent of the Documentation
Agent, such Grantor will not (i) vote to enable, or take any other action to
permit, any Issuer 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, (ii) sell, assign, transfer, exchange, or otherwise dispose of, or
grant any option with respect to, the Investment Property pledged hereunder or
Proceeds thereof (except pursuant to a transaction expressly permitted by the
Credit Agreement), (iii) create, incur or permit to exist any Lien or option in
favor of, or any claim of any Person with respect to, any of the Investment
Property pledged hereunder or Proceeds thereof, or any interest therein, except
for the security interests created by this Agreement or (iv) enter into any
agreement or undertaking restricting the right or ability of such Grantor or the
Documentation Agent to sell, assign or transfer any of the Investment Property
pledged hereunder or Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such
Issuer agrees that (i) it will be bound by the terms of this Agreement relating
to the Investment Property issued by it and will comply with such terms insofar
as such terms are applicable to it, (ii) it will notify the Documentation Agent
promptly in writing of the occurrence of any of the events described in Section
5.7(a) with respect to the Investment Property issued by it and (iii) the terms
of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to
all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with
respect to the Investment Property issued by it.
5.8 Receivables. (a) Other than in the ordinary course of
business consistent with its past practice, such Grantor will not (i) grant any
extension of the time of payment of any Receivable, (ii) compromise or settle
any Receivable for less than the full amount thereof, (iii) release, wholly or
partially, any Person liable for the payment of any Receivable, (iv) allow any
credit or discount whatsoever on any Receivable or (v) amend, supplement or
modify any Receivable in any manner that could adversely affect the value
thereof.
(b) Such Grantor will deliver to the Documentation Agent a
copy of each material demand, notice or document received by it that questions
or calls into doubt the validity or enforceability of more than 5% of the
aggregate amount of the then outstanding Receivables.
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SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) The
Documentation Agent shall have the right at any time after the occurrence and
during the continuance of an Event of Default to make test verifications of the
Receivables in any reasonable manner and through any reasonable medium that it
reasonably considers advisable, and each Grantor shall furnish all such
assistance and information as the Documentation Agent may reasonably require in
connection with such test verifications.
(b) The Documentation Agent hereby authorizes each Grantor to
collect such Grantor's Receivables and the Documentation Agent may curtail or
terminate said authority at any time after the occurrence and during the
continuance of an Event of Default. If required by the Documentation Agent at
any time after the occurrence and during the continuance of an Event of Default,
any payments of Receivables, when collected by any Grantor, (i) 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
Documentation Agent if required, in a Collateral Account maintained under the
sole dominion and control of the Documentation Agent, subject to withdrawal by
the Documentation Agent for the account of the Lenders only as provided in
Section 6.5, and (ii) until so turned over, shall be held by such Grantor in
trust for the Documentation Agent and the Lenders, segregated from other funds
of such Grantor. Each such deposit of Proceeds of Receivables shall be
accompanied by a report identifying in reasonable detail the nature and source
of the payments included in the deposit.
6.2 Communications with Obligors; Grantors Remain Liable. (a)
The Documentation Agent in its own name or in the name of others may at any time
after the occurrence and during the continuance of an Event of Default
communicate with obligors under the Receivables to verify with them to the
Documentation Agent's satisfaction the existence, amount and terms of any
Receivables.
(b) Upon the request of the Documentation Agent and at any
time after the occurrence and during the continuance of an Event of Default,
each Grantor shall notify obligors on the Receivables that the Receivables have
been assigned to the Documentation Agent for the ratable benefit of the Lenders
and that payments in respect thereof shall be made directly to the Documentation
Agent.
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(c) Anything herein to the contrary notwithstanding, each
Grantor shall remain liable under each of the Receivables 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 Documentation Agent nor any Lender shall have any
obligation or liability under any Receivable (or any agreement giving rise
thereto) by reason of or arising out of this Agreement or the receipt by the
Documentation Agent or any Lender of any payment relating thereto, nor shall the
Administrative Agent or any Lender be obligated in any manner to perform any of
the obligations of any Grantor under or pursuant to any Receivable (or any
agreement giving rise thereto), 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 which may have been assigned to it or to which it may be entitled
at any time or times.
6.3 Pledged Stock. (a) Unless an Event of Default under
Section 15(a) of the Credit Agreement shall have occurred and be continuing and
the Documentation Agent shall have given notice to the relevant Grantor of the
Documentation Agent's intent to exercise its corresponding rights pursuant to
Section 6.3(b), each Grantor shall be permitted to receive all cash dividends
paid in respect of the Pledged Stock and all payments made in respect of Pledged
Notes, in each case paid in the normal course of business of the relevant Issuer
and consistent with past practice, to the extent not prohibited by the Credit
Agreement, and to exercise all voting and corporate rights with respect to the
Investment Property pledged hereunder; provided, however, that no vote shall be
cast or corporate right exercised or other action taken which would be
inconsistent with or result in any violation of any provision of the Credit
Agreement, this Agreement or any other Credit Document.
(b) If (x) either (A) an Event of Default under Section 15(a)
of the Credit Agreement shall occur and be continuing or (B) the Obligations of
any Borrower are accelerated and (y) the Documentation Agent shall give notice
of its intent to exercise such rights to the relevant Grantor or Grantors:
(i) the Documentation Agent shall have the right to receive
any and all cash dividends, payments or other Proceeds paid in respect
of the Investment Property pledged hereunder and make application
thereof to the Obligations in such order as the Documentation Agent may
determine; and
(ii) any or all of the Investment Property pledged hereunder
shall be registered in the name of the Documentation Agent or its
nominee, and the Documentation Agent or its nominee may thereafter
exercise (x) following written notice to the relevant Grantor or
Grantors, all voting, corporate and other rights pertaining to such
Investment Property at any meeting of shareholders of the relevant
Issuer or Issuers or otherwise and (y) any and all rights of
conversion, exchange and subscription and any other rights, privileges
or options pertaining to such Investment Property as if it were the
absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Investment Property
pledged hereunder upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure
of any Issuer, or upon the exercise by any Grantor or the Documentation
Agent of any right, privilege or option pertaining to such Investment
Property, and in connection therewith, the right to deposit and deliver
any and all of the Investment Property pledged hereunder with any
committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as the Documentation Agent may
determine);
all without liability except to account for property actually received by it,
but the Documentation 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.
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(c) Each Grantor hereby authorizes and instructs each Issuer
of any Investment Property pledged by such Grantor hereunder to (i) comply with
any instruction received by it from the Documentation Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Investment Property pledged hereunder directly to the Documentation Agent.
6.4 Proceeds to be Turned Over To Documentation Agent. If an
Event of Default under Section 15(a) of the Credit Agreement shall occur and be
continuing and the Administrative Agent shall have so requested in writing, all
Proceeds received by any Grantor consisting of cash, checks and other near-cash
items shall be held by such Grantor in trust for the Documentation Agent and the
Lenders, segregated from other funds of such Grantor, and shall, forthwith upon
receipt by such Grantor, be turned over to the Documentation Agent in the exact
form received by such Grantor (duly indorsed by such Grantor to the
Documentation Agent, if required). All Proceeds received by the Documentation
Agent hereunder shall be held by the Documentation Agent in a Collateral Account
maintained under its sole dominion and control. All Proceeds while held by the
Documentation Agent in a Collateral Account (or by such Grantor in trust for the
Documentation Agent and the Lenders) shall continue to be held as collateral
security for all the Obligations and shall not constitute payment thereof until
applied as provided in Section 6.5.
6.5 Application of Proceeds. At such intervals as may be
agreed upon by the Grantor and the Documentation Agent, or, if an Event of
Default shall have occurred and be continuing, at any time at the Documentation
Agent's election, the Documentation Agent may apply all or any part of Proceeds
held in any Collateral Account in payment of the Obligations in such order as
the Documentation Agent may elect, and any part of such funds which the
Documentation Agent elects not so to apply and deems not required as collateral
security for the Obligations shall be paid over from time to time by the
Documentation Agent to the Grantors or to whomsoever may be lawfully entitled to
receive the same. Any balance of such Proceeds remaining after the Obligations
shall have been paid in full, no Letters of Credit shall be outstanding and the
Commitments shall have terminated shall be paid over to the Grantors or to
whomsoever may be lawfully entitled to receive the same.
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6.6 Code and Other Remedies. If an Event of Default shall
occur and be continuing, the Documentation Agent, on behalf of the Lenders, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the New York UCC or any other applicable law. Without limiting the generality of
the foregoing, to the extent permitted by applicable law, if an Event of Default
under Section 15(a) of the Credit Agreement shall occur and be continuing or the
Obligations of any Borrower shall have been accelerated, the Documentation
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 to the extent permitted by
applicable law (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances forthwith collect,
receive, appropriate and realize upon the Collateral, or any part thereof,
and/or may forthwith sell, lease, assign, give option or options to purchase, or
otherwise dispose of and deliver the Collateral or any part thereof (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 Documentation 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 Documentation Agent or any
Lender 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 Documentation Agent's request, to assemble
the Collateral and make it available to the Documentation Agent at places which
the Documentation Agent shall reasonably select, whether at such Grantor's
premises or elsewhere. The Documentation Agent shall apply the net proceeds of
any action taken by it pursuant to this Section, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental
to the care or safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of the Documentation Agent and the Lenders
hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations, in such
order as the Documentation Agent may elect, and only after such application and
after the payment by the Documentation Agent of any other amount required by any
provision of law, including, without limitation, Section 9-504(1)(c) of the New
York UCC, need the Documentation 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 Documentation Agent or
any Lender 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
Business Days before such sale or other disposition.
6.7 Registration Rights. (a) If the Documentation Agent shall
determine to exercise its right to sell any or all of the Pledged Stock pursuant
to Section 6.6, and if in the opinion of the Documentation Agent it is necessary
or advisable to have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, the relevant Grantor will
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 Documentation Agent, necessary or advisable to register the
Pledged Stock, 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 Stock, or that
portion thereof to be sold, and (iii) make all amendments thereto and/or to the
related prospectus which, in the opinion of the Documentation 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 and all
jurisdictions which the Documentation Agent shall designate and to make
available to its security holders, as soon as practicable, an earnings statement
(which need not be audited) which will satisfy the provisions of Section 11(a)
of the Securities Act.
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(b) Each Grantor recognizes that the Documentation Agent may
be unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will 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 Documentation
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
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 Stock pursuant to this Section valid and
binding and in compliance with any and all other applicable Requirements of Law.
Each Grantor further agrees that a breach of any of the covenants contained in
this Section 6.7 will cause irreparable injury to the Documentation Agent and
the Lenders, that the Documentation Agent and the Lenders have no adequate
remedy at law in respect of such breach and, as a consequence, that each and
every covenant contained in this Section shall be specifically enforceable
against such Grantor, and such Grantor hereby waives and agrees not to assert
any defenses against an action for specific performance of such covenants except
for a defense that no Event of Default has occurred under the Credit Agreement.
6.8 Waiver; Deficiency. Each Grantor waives and agrees not to
assert any rights or privileges against the Documentation Agent or any Lender
which it may acquire under Section 9-112 of the New York UCC. Each Grantor shall
remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay its Obligations subject to
Section 2.1(c) and the reasonable fees and disbursements of any attorneys
employed by any Agent or any Lender to collect such deficiency.
6.9 Notice to Grantor of Sale. Unless any of the Collateral
threatens to decline speedily in value or is or becomes of a type sold on a
recognized market, the Documentation Agent will give the Grantor reasonable
notice of the time and place of any public sale thereof, or of the time after
which any private sale or other intended disposition is to be made. Any sale of
the Collateral conducted in conformity with reasonable commercial practices of
banks, commercial finance companies, insurance companies or other financial
institutions disposing of property similar to the Collateral shall be deemed to
be commercially reasonable. Notwithstanding any provision to the contrary
contained herein, the Grantor agrees that any requirements of reasonable notice
shall be met if such notice is received by the Grantor as provided in Section
8.2 below at least ten (10) Business Days before the time of the sale or
disposition; provided, however, that the Documentation Agent may give any
shorter notice that is commercially reasonable under the circumstances. Any
other requirement of notice, demand or advertisement for sale is waived, to the
extent permitted by law.
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6.10 Other Sales. In view of the fact that federal and state
securities laws may impose certain restrictions on the method by which a sale of
the Collateral may be effected after the occurrence and during the continuation
of an Event of Default set forth in Section 15(a) of the Credit Agreement or
upon acceleration of the Obligations of any Borrower, each Grantor agrees that
upon the occurrence and during the continuation of an Event of Default, the
Documentation Agent may, from time to time, attempt to sell all or any part of
the Collateral by means of a private placement restricting the bidders and
prospective purchasers to those who are qualified and will represent and agree
that they are purchasing for investment only and not for distribution. In so
doing, the Documentation Agent may solicit offers to buy the Collateral, or any
part of it, from a limited number of investors deemed by the Documentation
Agent, in its reasonable judgment, to be financially responsible parties who
might be interested in purchasing the Collateral. If the Documentation Agent
solicits such offers from not less than four (4) such investors, then the
acceptance by the Documentation Agent of the highest offer obtained therefrom
shall be deemed to be a commercially reasonable method of disposing of such
Collateral; provided, however, that this Section does not impose a requirement
that the Documentation Agent solicit offers from four or more investors in order
for the sale to be commercially reasonable.
SECTION 7. THE DOCUMENTATION AGENT
7.1 Documentation Agent's Appointment as Attorney-in-Fact,
etc. (a) Each Grantor hereby irrevocably constitutes and appoints the
Documentation 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 and all appropriate action and to execute any and
all documents and instruments which 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 Documentation Agent the power and
right, on behalf of such Grantor, without notice to or assent by such Grantor,
to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise,
take possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due with
respect to any Collateral and file any claim or take any action or
proceeding in any court of law or equity or otherwise deemed
appropriate by the Documentation Agent for the purpose of collecting
any and all such moneys due with respect to any Collateral whenever
payable;
(ii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of
the premiums therefor and the costs thereof;
(iii) execute, in connection with any sale provided for in
Section 6.6 or 6.7, any indorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral; and
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(iv) (i) direct any party liable for any payment under any of
the Collateral to make payment of any and all moneys due or to become
due thereunder directly to the Documentation Agent or as the
Documentation Agent shall direct; (ii) ask or demand for, collect, and
receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising
out of any Collateral; (iii) sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral; (iv) commence and
prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any
portion thereof and to enforce any other right in respect of any
Collateral; (v) defend any suit, action or proceeding brought against
such Grantor with respect to any Collateral; (vi) settle, compromise or
adjust any such suit, action or proceeding and, in connection
therewith, give such discharges or releases as the Documentation Agent
may deem appropriate; and (vii) generally, sell, transfer, pledge and
make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Documentation Agent
were the absolute owner thereof for all purposes, and do, at the
Documentation Agent's option and such Grantor's expense, at any time,
or from time to time, all acts and things which the Documentation Agent
deems necessary to protect, preserve or realize upon the Collateral and
the Documentation Agent's and the Lenders' security interests therein
and to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do.
Anything in this Section 7.1(a) to the contrary
notwithstanding, the Documentation Agent agrees that it will not exercise any
rights under the power of attorney provided for in this Section 7.1(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 Documentation 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 reasonable expenses of the Documentation Agent
incurred in connection with actions undertaken as provided in this Section 7.1,
together with interest thereon at a rate per annum equal to the highest rate per
annum at which interest would then be payable on any category of past due ABR
Loans under the Credit Agreement, from the date of payment by the Documentation
Agent to the date reimbursed by the relevant Grantor, shall be payable by such
Grantor to the Documentation 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.
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7.2 Duty of Documentation Agent. The Documentation Agent's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Documentation
Agent deals with similar property for its own account. Neither the Documentation
Agent, any Lender nor any of their respective officers, directors, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
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 the
Collateral or any part thereof. The powers conferred on the Documentation Agent
and the Lenders hereunder are solely to protect the Documentation Agent's and
the Lenders' interests in the Collateral and shall not impose any duty upon the
Documentation Agent or any Lender to exercise any such powers. The Documentation
Agent and the Lenders 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 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, bad faith or willful misconduct.
7.3 Authority of Documentation Agent. Each Grantor
acknowledges that the rights and responsibilities of the Documentation Agent
under this Agreement with respect to any action taken by the Documentation Agent
or the exercise or non-exercise by the Documentation 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 Documentation
Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Documentation Agent and the Grantors, the Documentation Agent
shall be conclusively presumed to be acting as agent for the Lenders 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.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified except
in accordance with subsection 17.1 of the Credit Agreement.
8.2 Notices. All notices, requests and demands to or upon the
Documentation Agent or any Grantor hereunder shall be effected in the manner
provided for in subsection 17.3 of the Credit Agreement; provided that any such
notice, request or demand to or upon any Subsidiary Guarantor shall be addressed
to such Subsidiary Guarantor at its notice address set forth on Schedule 1
hereto.
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8.3 No Waiver by Course of Conduct; Cumulative Remedies. (a)
Neither any Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 8.1), 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 any Agent or any Lender, 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 any Agent or any Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which such Agent
or such Lender 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.
(b) All rights, remedies and powers provided under this
Agreement may be exercised only to the extent that exercise thereof does not
violate any applicable provision of law, and all the provisions under this
Agreement are intended to be subject to all applicable mandatory provisions of
law which may be controlling and (subject to Section 8.8) to be limited to the
extent necessary so that they will not render this Agreement invalid,
unenforceable in whole or in part or not entitled to be recorded, registered or
filed under the provisions of any applicable law.
8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor
agrees to pay or reimburse each Lender and Agent for all its reasonable costs
and expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Agreement and the other Credit Documents to which such Guarantor is a
party, including, without limitation, the reasonable fees and disbursements of
counsel to each Lender and of counsel to each of the Agents.
(b) Each Guarantor agrees to pay, and to save the Agents and
the Lenders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the Agents and
the Lenders and their respective officers, directors, employees, agents,
investment advisors which are under common institutional control with a Lender
and trustees harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to the extent the
Borrowers would be required to do so pursuant to subsection 17.6 of the Credit
Agreement.
(d) The agreements in this Section 8.4 shall survive repayment
of the Obligations and all other amounts payable under the Credit Agreement and
the other Credit Documents.
8.5 Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of each Grantor and shall inure to the benefit
of the Agents and the Lenders (and their affiliates and subsidiaries which hold
Obligations) and their successors and assigns; provided that no Grantor may
assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Documentation Agent.
112
8.6 Set-Off. Each Grantor hereby irrevocably authorizes the
Documentation Agent, the Administrative Agent and each Lender at any time and
from time to time while an Event of Default shall have occurred and be
continuing, without notice to such Grantor or any other Grantor, any such notice
being expressly waived by each Grantor, to set-off and appropriate and apply any
and all deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Documentation Agent, the
Administrative Agent or such Lender to or for the credit or the account of such
Grantor, or any part thereof in such amounts as the Documentation Agent, the
Administrative Agent or such Lender may elect, against and on account of the
obligations and liabilities of such Grantor to the Documentation Agent, the
Administrative Agent or such Lender hereunder and claims of every nature and
description of the Documentation Agent, the Administrative Agent or such Lender
against such Grantor, in any currency, whether arising hereunder, under the
Credit Agreement, any other Credit Document or otherwise, as the Documentation
Agent, the Administrative Agent or such Lender may elect, whether or not the
Documentation Agent, the Administrative Agent or any Lender has made any demand
for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Documentation Agent, the Administrative Agent and
each Lender shall notify such Grantor promptly of any such set-off and the
application made by it of the proceeds thereof, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of the Documentation Agent, the Administrative Agent and each Lender
under this Section 8.6 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Documentation Agent, the
Administrative Agent or such Lender may have.
8.7 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), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which 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.
8.9 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
8.10 Integration. This Agreement and the other Credit
Documents represent the agreement of the Grantors, the Documentation Agent and
the Lenders with respect to the subject matter hereof and thereof, and there are
no promises, undertakings, representations or warranties by the Documentation
Agent or any Lender relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Credit Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
113
8.12 Submission To Jurisdiction; Waivers. Each Grantor
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts
from any thereof;
(b) to the extent permitted by applicable law, consents that
any such action or proceeding may be brought in such courts and waives
any objection that it may now or hereafter have to the venue of any
such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead
or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Grantor at its address referred to in Section 8.2 or
at such other address of which the Documentation Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
8.13 Acknowledgements. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit Documents
to which it is a party;
(b) neither any Agent nor any Lender has any fiduciary
relationship with or duty to any Grantor arising out of or in
connection with this Agreement or any of the other Credit Documents,
and the relationship between the Grantors, on the one hand, and the
Agents and Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Grantors and the
Lenders.
114
8.14 Additional Grantors. Each Subsidiary of the Company that
is required to become a party to this Agreement pursuant to subsection 13.9 of
the Credit Agreement shall become a Grantor for all purposes of this Agreement
upon execution and delivery by such Subsidiary of an Assumption Agreement in the
form of Annex 1 hereto.
8.15 Termination of this Security Agreement; Release of
Collateral. (a) The pledge made and the security interest granted by the
Grantors under this Agreement shall terminate upon final payment in full in cash
of the Obligations and the termination of the Commitments under the Credit
Agreement. Upon such termination (other than as a result of the sale of the
Collateral) and at the written request of the relevant Grantor or its successors
or assigns, and at the cost and expense of such Grantor or its successors or
assigns, the Documentation Agent shall execute in a timely manner such
instruments, documents or agreements as are necessary or desirable to terminate
the Documentation Agent's security interest in the Collateral and deliver any
and all Collateral held by the Documentation Agent (including, but not limited
to, any Instruments, Certificated Securities, Chattel Paper, letters of credit,
Pledged Notes, Pledged Stock and stock powers), subject to any disposition made
by the Documentation Agent pursuant to this Agreement.
(b) Notwithstanding anything in this Agreement to the
contrary, the Grantors may, to the extent permitted by the Credit Agreement,
sell, assign, transfer or otherwise dispose of any Collateral. In addition, the
Collateral shall be subject to release from time to time (with the Collateral
referred to in the immediately preceding sentence, the "Released Collateral") in
accordance with Section 17.2 of the Credit Agreement. The Liens under this
Agreement shall terminate with respect to the Released Collateral upon such
sale, transfer, assignment, disposition or release, and, upon the request of the
relevant Grantor, the Documentation Agent shall execute and deliver such
instruments or documents as may be necessary to release the Liens granted
hereunder, provided, however, that (a) the Documentation Agent shall not be
required to execute any such documents on terms which, in its opinion, would
expose it Agent to liability or create any obligation or entail any consequence
other than the release of such Liens without recourse or warranty and (ii) such
release shall not in any manner discharge, affect or impair the Obligations or
any Liens on (or obligations of any Grantor in respect of) all interests
retained by the Grantor, including without limitation, the proceeds of any sale,
all of which shall continue to constitute part of the Collateral unless and
until applied strictly in accordance with the Credit Documents.
8.16 WAIVER OF JURY TRIAL. EACH GRANTOR AGENT AND LENDER (BY
ITS ACCEPTANCE OF THE BENEFITS HEREOF) HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
115
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
HEXCEL CORPORATION
HEXCEL INTERNATIONAL
HEXCEL OMEGA CORPORATION
HEXCEL BETA CORP.
XXXXX-XXXXXXXX HOLDING CORP.
XXXXX-XXXXXXXX CORPORATION
CS TECH-FAB HOLDING, INC.
By:
Title:
CITIBANK, N.A.
as Documentation Agent
By:
Title:
116
Schedule 1
NOTICE ADDRESSES OF GUARANTORS
c/o Hexcel Corporation
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Treasurer
Fax: 208/000-0000
117
Schedule 2
DESCRIPTION OF PLEDGED STOCK
A. Stock Pledged by Hexcel Corporation
--------------------------------------------- --------------------- ----------------------------- ------------------
Issuer Class of Stock Stock Certificate No. No. of Shares
--------------------------------------------- --------------------- ----------------------------- ------------------
Hexcel Pottsville Corporation Common 1 100
Hexcel Beta Corp. Common 1 3,000
Hexcel International Common 2 100
Xxxxx-Xxxxxxxx Holding Corp. Common 1 1,000
B. Stock Pledged by Hexcel International
------------------------------------------------------------------------------------------------- ------------------
Issuer Class of Stock Stock Certificate No. No. of Shares
--------------------------------------------- --------------------- ----------------------------- ------------------
Hexcel Omega Corporation Common 1 1,000
C. Stock Pledged by Xxxxx-Xxxxxxxx Holding Corp.
------------------------------------------------------------------------------------------------- ------------------
Issuer Class of Stock Stock Certificate No. No. of Shares
--------------------------------------------- --------------------- ----------------------------- ------------------
Hexcel CS Corporation Common 1 1,000
--------------------------------------------- --------------------- ----------------------------- ------------------
D. Stock Pledged by Hexcel CS Corporation
------------------------------------------------------------------------------------------------- ------------------
Issuer Class of Stock Stock Certificate No. No. of Shares
--------------------------------------------- --------------------- ----------------------------- ------------------
CS Tech-Fab Holding, Inc. Common 1 1,000
--------------------------------------------- --------------------- ----------------------------- ------------------
118
Schedule 3
INTERCOMPANY NOTES
1. Promissory Note, dated September 15, 1998, in the principal amount
of US$44,400,000, issued by Xxxxx-Xxxxxxxx Holding Corp. and payable to Hexcel
Corporation.
2. Promissory Note, dated September 15, 1998, in the principal amount
of US$400,475,952, issued by Hexcel CS Corporation (to be renamed Xxxxx-Xxxxxxxx
Corporation) and payable to Hexcel Corporation.
3. Promissory Note, dated September 15, 1998, in the principal amount
of US$4,200,000, issued by CS Tech-Fab Holding, Inc. and payable to Hexcel
Corporation.
119
Schedule 4
JURISDICTIONS OF ORGANIZATION AND CHIEF EXECUTIVE OFFICES
Jurisdiction of Location of Chief
Grantor Organization Executive Office
------------------------------------------ -------------------------------- ----------------------------------------
Hexcel Corporation Delaware Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Hexcel International California 0000 Xxxx Xxx Xxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Hexcel Omega Corporation California 0000 Xxxx Xxx Xxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Hexcel Beta Corp. Delaware 0000 Xxxx Xxx Xxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Xxxxx-Xxxxxxxx Holding Corp. Delaware Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Xxxxx-Xxxxxxxx Corporation Delaware 0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
CS Tech-Fab Holding, Inc. Delaware 0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
------------------------------------------ -------------------------------- ----------------------------------------
120
Schedule 5
LOCATIONS OF INVENTORY AND EQUIPMENT
Grantor Locations
----------------------------------------------------------- --------------------------------------------------------
Hexcel Corporation See attached Exhibit 1 to this Schedule 5.
Hexcel International None.
Hexcel Omega Corporation None.
Hexcel Beta Corp. None.
Xxxxx-Xxxxxxxx Holding Corp None.
Xxxxx-Xxxxxxxx Corporation See attached Exhibit 1 to this Schedule 5.
CS Tech-Fab Holding, Inc. None.
----------------------------------------------------------- --------------------------------------------------------
121
Schedule 6
FILINGS REQUIRED
TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
Name Jurisdictions
----------------------------------------------------------- --------------------------------------------------------
Hexcel Corporation AL SOS
AZ SOS
CA SOS
CT SOS
DE SOS
GA - Xxxxxx County, White County, Xxxxxx County
MA SOS / Northborough Town
NC SOS / Iredell County
OH SOS / Fairfield County
PA SOS / Xxxxxxx County, Schuylkill County
SC SOS
TX SOS
UT SOS
VA SOS / Fairfax County
WA SOS
Xxxxx-Xxxxxxxx Corporation CA SOS
CT SOS
DE SOS
GA - White County, Xxxxxx County
MA SOS / Northborough Town
NC SOS / Iredell County
SC SOS
TX SOS
Xxxxx-Xxxxxxxx Holding Corp. CT SOS
DE SOS
SC SOS
CS Tech-Fab Holding, Inc. CT SOS
DE SOS
SC SOS
Hexcel Beta Corp. CA SOS
CT SOS
DE SOS
Hexcel International CA SOS
CT SOS
Hexcel Omega Corporation CA SOS
CT SOS
----------------------------------------------------------- --------------------------------------------------------
122
ACKNOWLEDGMENT AND CONSENT1/
The undersigned hereby acknowledges receipt of a copy of the Amended
and Restated Collateral Agreement dated as of March 7, 2000 (the "Agreement"),
made by the Grantors parties thereto for the benefit of Citibank, N.A., as
Documentation Agent. The undersigned agrees for the benefit of the Documentation
Agent and the Lenders (and their affiliates and subsidiaries which hold
Obligations) as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the Documentation Agent promptly in
writing of the occurrence of any of the events described in Section 5.7(a) of
the Agreement.
3. The terms of Sections 6.3(c) and 6.7 of the Agreement shall apply to
it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 6.3(c) or 6.7 of the Agreement.
[NAME OF ISSUER]
By:
Name:
Title:
Address for Notices:
Fax:
123
Annex 1 to
Collateral Agreement
ASSUMPTION AGREEMENT, dated as of ________________, 2000, made
by ______________________________, a ______________ corporation (the "Additional
Grantor"), in favor of CITIBANK, N.A., as Documentation Agent (in such capacity,
the "Documentation Agent") for the banks and other financial institutions (the
"Lenders") parties to the Credit Agreement referred to below. All capitalized
terms not defined herein shall have the meaning ascribed to them in such Credit
Agreement.
W I T N E S S E T H :
WHEREAS, Hexcel Corporation (the "Company") and certain of its
Subsidiaries (together with the Company, the "Borrowers"), the Lenders, the
Documentation Agent and Credit Suisse First Boston, as Administrative Agent,
have entered into a Second Amended and Restated Credit Agreement, dated as of
September 15, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the Company
and certain of its Affiliates (other than the Additional Grantor) have entered
into the Amended and Restated Collateral Agreement, dated as of March 7, 2000
(as amended, supplemented or otherwise modified from time to time, the
"Collateral Agreement") in favor of the Documentation Agent;
WHEREAS, the Credit Agreement requires the Additional
Grantor to become a party to the Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and
deliver this Assumption Agreement in order to become a party to the Collateral
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Collateral Agreement. By executing and delivering this
Assumption Agreement, the Additional Grantor, as provided in Section 8.14 of the
Collateral Agreement, hereby becomes a party to the Collateral Agreement as a
Grantor thereunder with the same force and effect as if originally named therein
as a Grantor and, without limiting the generality of the foregoing, hereby
expressly assumes all obligations and liabilities of a Grantor thereunder. The
information set forth in Annex 1-A hereto is hereby added to the information set
forth in the Schedules to the Collateral Agreement. The Additional Grantor
hereby represents and warrants that each of the representations and warranties
contained in Section 4 of the Collateral Agreement is true and correct on and as
the date hereof (after giving effect to this Assumption Agreement) as if made on
and as of such date.
124
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:
Name:
Title:
125
Annex 1-A to
Assumption Agreement
Supplement to Schedule 1
Supplement to Schedule 2
Supplement to Schedule 3
126
AMENDED AND RESTATED COLLATERAL AGREEMENT
made by
HEXCEL CORPORATION
and certain of its Subsidiaries
in favor of
CITIBANK, N.A.,
as Documentation Agent
Dated as of March 7, 2000
127
-iv-
TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS.........................................................................................2
1.1 Definitions.........................................................................................2
1.2 Other Definitional Provisions.......................................................................3
SECTION 2. GUARANTEE.............................................................................................3
2.1 Guarantee...........................................................................................3
2.2 Right of Contribution...............................................................................4
2.3 No Subrogation......................................................................................4
2.4 Amendments, etc. with Respect to the Obligations....................................................5
2.5 Guarantee Absolute and Unconditional................................................................5
2.6 Reinstatement.......................................................................................6
2.7 Payments............................................................................................6
SECTION 3. GRANT OF SECURITY INTEREST............................................................................6
SECTION 4. REPRESENTATIONS AND WARRANTIES........................................................................7
4.1 Title; No Other Liens...............................................................................7
4.2 Perfected First Priority Liens......................................................................8
4.3 Chief Executive Office..............................................................................8
4.4 Inventory and Equipment.............................................................................8
4.5 Investment Property.................................................................................8
4.6 Receivables.........................................................................................9
SECTION 5. COVENANTS.............................................................................................9
5.1 Delivery of Instruments, Certificated Securities and Chattel Paper..................................9
5.2 Maintenance of Insurance............................................................................9
5.3 Payment of Obligations.............................................................................10
5.4 Maintenance of Perfected Security Interest; Further Documentation..................................10
5.5 Changes in Locations, Name, etc....................................................................11
5.6 Notices............................................................................................11
5.7 Investment Property................................................................................11
5.8 Receivables........................................................................................12
SECTION 6. REMEDIAL PROVISIONS..................................................................................13
6.1 Certain Matters Relating to Receivables............................................................13
6.2 Communications with Obligors; Grantors Remain Liable...............................................13
6.3 Pledged Stock......................................................................................14
6.4 Proceeds to be Turned Over To Documentation Agent..................................................15
6.5 Application of Proceeds............................................................................15
6.6 Code and Other Remedies............................................................................15
6.7 Registration Rights................................................................................16
6.8 Waiver; Deficiency.................................................................................17
6.9 Notice to Grantor of Sale..........................................................................17
6.10 Other Sales.......................................................................................18
SECTION 7. THE DOCUMENTATION AGENT..............................................................................18
7.1 Documentation Agent's Appointment as Attorney-in-Fact, etc.........................................18
7.2 Duty of Documentation Agent........................................................................19
7.3 Authority of Documentation Agent...................................................................20
SECTION 8. MISCELLANEOUS........................................................................................20
8.1 Amendments in Writing..............................................................................20
8.2 Notices............................................................................................20
8.3 No Waiver by Course of Conduct; Cumulative Remedies................................................20
8.4 Enforcement Expenses; Indemnification..............................................................21
8.5 Successors and Assigns.............................................................................21
8.6 Set-Off............................................................................................21
8.7 Counterparts.......................................................................................22
8.8 Severability.......................................................................................22
8.9 Section Headings...................................................................................22
8.10 Integration.......................................................................................22
8.11 GOVERNING LAW.....................................................................................22
8.12 Submission To Jurisdiction; Waivers...............................................................23
8.13 Acknowledgements..................................................................................23
8.14 Additional Grantors...............................................................................23
8.15 Termination of this Security Agreement; Release of Collateral.....................................24
8.16 WAIVER OF JURY TRIAL..............................................................................24
128
SCHEDULES
Schedule 1 Notice Addresses
Schedule 2 Pledged Stock
Schedule 3 Intercompany Notes
Schedule 4 Jurisdictions of Organization and Chief Executive Offices
Schedule 5 Inventory and Equipment Locations
Schedule 6 Perfection Matters
1/ This consent is necessary only with respect to any Issuer which is not
also a Grantor. This consent may be modified or eliminated with respect
to any Issuer that is not controlled by a Grantor. If a consent is
required, its execution and delivery should be included among the
conditions to the initial borrowing specified in the Credit Agreement.
129
