SECURITY AGREEMENT
dated as of
July 31, 1998
among
SYBRON CHEMICALS INC.
THE SUBSIDIARY GUARANTORS PARTY HERETO
and
MELLON BANK, N.A.,
as Administrative Agent
TABLE OF CONTENTS
Page
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Section 1. Definitions................................................... 1
Section 2. Representations and Warranties................................ 9
Section 3. The Security Interests........................................ 11
Section 4. Delivery of Certain Collateral................................ 12
Section 5. Further Assurances; Covenants................................. 13
Section 6. Record Ownership of Pledged Equity Securities................. 18
Section 7. Right to Vote Pledged Equity Interests........................ 19
Section 8. Right to Receive Distributions on Collateral.................. 19
Section 9. General Authority............................................. 20
Section 10. Remedies upon Event of Default................................ 20
Section 11. Limitation on Duty of Administrative Agent in Respect
of Collateral............................................... 23
Section 12. Application of Proceeds....................................... 24
Section 13. Concerning the Administrative Agent........................... 26
Section 14. Appointment of Co-Agents...................................... 26
Section 15. Expenses...................................................... 26
Section 16. Termination of Security Interests; Release of Collateral...... 27
Section 17. Additional Subsidiary Guarantors.............................. 28
Section 18. Notices....................................................... 28
Section 19. Waivers, Remedies Not Exclusive............................... 28
Section 20. Successors and Assigns........................................ 28
Section 21. Changes in Writing............................................ 28
Section 22. New York Law.................................................. 28
Section 23. Severability.................................................. 29
Schedule 1 -- Equity Interests
Exhibit A -- Form of Security Agreement Supplement
Exhibit B -- Form of Copyright Security Agreement
Exhibit C -- Form of Patent Security Agreement
Exhibit D -- Form of Trademark Security Agreement
Exhibit E -- Form of Perfection Certificate
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SECURITY AGREEMENT
AGREEMENT dated as of July 31, 1998 among SYBRON CHEMICALS
INC., the SUBSIDIARY GUARANTORS party hereto and MELLON BANK, N.A., as
Administrative Agent.
WHEREAS, the Borrower is entering into the Credit Agreement
described in Section 1 below, pursuant to which the Borrower intends to borrow
funds and obtain letters of credit, all on the terms and conditions set forth
therein;
WHEREAS, the Borrower is willing to secure its obligations
under the Credit Agreement and the other Financing Documents by granting Liens
on its assets to the Administrative Agent as provided in this Agreement and
the other Collateral Documents;
WHEREAS, each of the Borrower's U.S. Subsidiaries has guaranteed
the foregoing obligations of the Borrower pursuant to the Subsidiary Guaranty
Agreement and is willing to secure its obligations under such Subsidiary
Guaranty by granting Liens on its assets to the Administrative Agent as
provided in this Agreement and the other Collateral Documents; and
WHEREAS, the Lenders and the LC Issuing Bank are not willing to
make loans or maintain, issue or participate in letters of credit under the
Credit Agreement unless (i) the foregoing obligations of the Borrower are
secured by Liens on its assets as provided in the Collateral Documents, (ii)
the foregoing obligations of the Borrower are guaranteed by each of the
Borrower's U.S. Subsidiaries and (iii) each such guarantee is secured by Liens
on the assets of the relevant Subsidiary Guarantor as provided in the
Collateral Documents;
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement
and not otherwise defined herein have, as used herein, the respective meanings
provided for therein. The following additional terms, as used herein, have the
following meanings:
"Accounts" means, with respect to any Lien Grantor, all
"accounts" (as defined in the UCC) now owned or hereafter acquired by such Lien
Grantor, and also means and includes all accounts receivable, contract rights,
book debts, notes, drafts and other obligations or indebtedness owing to such
Lien Grantor arising from the performance of services by it and/or the sale,
lease or exchange of goods or other property by it (including, without
limitation, any such obligation or indebtedness which might be characterized as
an account, contract right or general intangible under the Uniform Commercial
Code in effect in any jurisdiction) and all of such Lien Grantor's rights in,
to and under all contracts or purchase orders for goods, services or other
property, and all of such Lien Grantor's rights to any goods, services or other
property represented by any of the foregoing (including returned or
repossessed goods and unpaid sellers' rights of recission, replevin,
reclamation and rights to stoppage in transit) and all monies due to or to
become due to such Lien Grantor under all contracts for the performance of
services by it and/or the sale, lease or exchange of goods or other property
by it (whether or not yet earned by performance on the part of such Lien
Grantor), in each case whether now existing or hereafter arising or acquired,
including, without limitation, the right to receive the proceeds of said
contracts and purchase orders and all collateral security and guarantees of
any kind given by any Person with respect to any of the foregoing.
"Collateral" means all property, whether now owned or hereafter
acquired, in which a security interest or other Lien is granted or purported to
be granted to the Administrative Agent pursuant to the Collateral Documents.
When used with respect to a specific Lien Grantor, the term "Collateral" means
all such property in which such a security interest or other Lien is granted
or purported to be granted to the Administrative Agent by such Lien Grantor.
"Collateral Documents" means this Agreement, the Security
Agreement Supplements, the Intellectual Property Security Agreements and all
other supplemental or additional security agreements, mortgages or similar
instruments delivered pursuant hereto or thereto.
"Contingent Secured Obligation" means, at any time, any Secured
Obligation (or portion thereof) that is contingent in nature at such time,
including (without limiting the generality of the foregoing) any obligation to
reimburse the LC Issuing Bank for drawings not yet made under a Letter of
Credit.
"Copyright License" means any agreement now or hereafter in
existence granting to any Lien Grantor, or pursuant to which any Lien Grantor
has granted to any other Person, any right to use, copy, reproduce, distribute,
prepare derivative works, display or publish any records or other materials on
which a Copyright is in existence or may come into existence, including,
without limitation, any agreement identified in Schedule 1 to a Copyright
Security Agreement.
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"Copyrights" means all the following: (i) all copyrights under
the laws of the United States or any other country (whether or not the
underlying works of authorship have been published), all registrations and
recordings thereof, all copyrightable works of authorship (whether or not
published), and all applications for copyrights under the laws of the United
States or any other country, including, without limitation, registrations,
recordings and applications in the United States Copyright Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, including, without limitation,
those described in Schedule 1 to any Copyright Security Agreement, (ii) all
renewals thereof, (iii) all claims for, and rights to xxx for, past or future
infringements of any of the foregoing, and (iv) all income, royalties, damages
and payments now or hereafter due or payable with respect to any of the
foregoing, including, without limitation, damages and payments for past or
future infringements thereof.
"Copyright Security Agreement" means a Copyright Security
Agreement, substantially in the form of Exhibit B hereto, executed and
delivered by a Lien Grantor in favor of the Administrative Agent, for the
benefit of the Secured Parties, as amended from time to time.
"Credit Agreement" means the Credit Agreement dated as of July
31, 1998 among Sybron Chemicals Inc., the Lenders, DLJ Capital Funding, Inc.,
as Syndication Agent, Xxxxxx Guaranty Trust Company of New York, as
Documentation Agent, and Mellon Bank, N.A., as Administrative Agent, Swingline
Bank and LC Issuing Bank (as amended, supplemented or otherwise modified from
time to time.
"Documents" means, with respect to any Lien Grantor, all
"documents" (as defined in the UCC) or other receipts covering, evidencing or
representing goods, now owned or hereafter acquired by such Lien Grantor.
"Equipment" means, with respect to any Lien Grantor, all
"equipment" (as defined in the UCC) now owned or hereafter acquired by it,
located in the United States, other than motor vehicles the perfection of a
security interest in which is excluded from the Uniform Commercial Code in the
relevant jurisdiction and other than any equipment leased by a Lien Grantor
the terms of which lease prohibit the granting of a Lien thereunder.
"Equity Interest" means (i) in the case of a corporation, any
shares of its capital stock, (ii) in the case of a limited liability company,
any membership interest therein, (iii) in the case of a partnership, any
partnership interest (whether general or limited) therein, (iv) in the case of
any other business entity, any participation or other interest in the equity
or profits thereof or (v) any warrant, option or other right to acquire any
Equity Interest described in the foregoing clauses (i), (ii), (iii) and (iv).
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"Foreign Person" means any Person organized under the laws of a
jurisdiction, and conducting substantially all of its operations, outside of
the United States, other than any such Person that is, whether as a matter of
law, pursuant to an election by such Person or otherwise, treated as a
partnership in which any Lien Grantor is a partner or a branch of any Lien
Grantor for United States income tax purposes.
"General Intangibles" means, with respect to any Lien Grantor,
all "general intangibles" (as defined in the UCC) now owned or hereafter
acquired by such Lien Grantor, including, without limitation, (i) all
obligations or indebtedness owing to such Lien Grantor (other than Accounts)
from whatever source arising, (ii) all Intellectual Property, goodwill, trade
names, service marks, trade secrets, permits and licenses, (iii) all rights or
claims in respect of refunds for taxes paid and (iv) all rights in respect of
any pension plan or similar arrangement maintained for employees of any member
of the ERISA Group.
"Instruments" means, with respect to any Lien Grantor, all
"instruments", "chattel paper" or "letters of credit" (each as defined in the
UCC) evidencing, representing, arising from or existing in respect of, relating
to, securing or otherwise supporting the payment of, any of the Accounts owing
to such Lien Grantor, including (but not limited to) promissory notes, drafts,
bills of exchange and trade acceptances, now owned or hereafter acquired by
such Lien Grantor.
"Insurance Account" has the meaning set forth in Section 5(p).
"Intellectual Property" means (i) Patents, (ii) Patent
Licenses, (iii) Trademarks, (iv) Trademark Licenses, (v) Copyrights and (vi)
Copyright Licenses, and all rights in or under any of the foregoing.
"Intellectual Property Filing" means (i) with respect to any
Patent, Patent License, Trademark or Trademark License, the filing of the
applicable Patent Security Agreement or Trademark Security Agreement with the
United States Patent and Trademark Office, together with an appropriately
completed recordation form, and (ii) with respect to any Copyright or
Copyright License, the filing of the applicable Copyright Security Agreement
with the United States Copyright Office, together with an appropriately
completed recordation form, in each case sufficient to record the Security
Interest granted to the Administrative Agent in such Intellectual Property.
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"Intellectual Property Security Agreement" means a Copyright
Security Agreement, a Patent Security Agreement or a Trademark Security
Agreement.
"Inventory" means, with respect to any Lien Grantor, all
"inventory" (as defined in the UCC), now owned or hereafter acquired by it,
located in the United States, and shall also mean and include, without
limitation, all raw materials and other materials and supplies,
work-in-process and finished goods and any products made or processed
therefrom and all substances, if any, commingled therewith or added thereto.
"Investment Property" means, with respect to any Lien Grantor,
all "investment property" (as defined in the UCC) now owned or hereafter
acquired by such Lien Grantor including, without limitation, all "securities",
"security entitlements", "securities accounts", "commodity contracts" and
"commodity accounts" (each as defined in the UCC).
"Lien Grantor" means the Borrower or any Subsidiary Guarantor
and "Lien Grantors" means all of the foregoing.
"Non-Contingent Secured Obligation" means at any time any
Secured Obligation (or portion thereof) that is not a Contingent Secured
Obligation at such time.
"Opinion of Counsel" means a written opinion of legal counsel
(who may be counsel to a Lien Grantor or other counsel, in either case
approved by the Syndication Agent and the Administrative Agent or the Required
Lenders in a writing delivered to the Administrative Agent) addressed and
delivered to the Administrative Agent.
"Original Lien Grantor" means the Borrower or any Subsidiary
Guarantor that grants a Lien on any of its assets hereunder on the Closing
Date, and "Original Lien Grantors" means all of the foregoing.
"Other Investment Property" means, with respect to any Lien
Grantor, all Investment Property now owned or hereafter acquired by it, other
than any such Investment Property constituting an Equity Interest.
"Other Pledged Securities" means, with respect to any Lien
Grantor, all "securities" (as such term is defined in Article 8 of the UCC)
now owned or hereafter acquired by such Lien Grantor, other than any Pledged
Equity Securities of such Lien Grantor.
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"Patent License" means any agreement now or hereafter in
existence granting any Lien Grantor, or pursuant to which any Lien Grantor has
granted to any other Person, any right with respect to any Patent or any
invention now or hereafter in existence, whether patentable or not, whether a
patent or application for patent is in existence on such invention or not, and
whether a patent or application for patent on such invention may come into
existence or not, including, without limitation, any agreement identified in
Schedule 1 to a Patent Security Agreement.
"Patents" means (i) all letters patent and design letters
patent of the United States or any other country and all applications for
letters patent and design letters patent of the United States or any other
country, including, without limitation, applications in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof or any other country or any political subdivision
thereof, (ii) all reissues, divisions, continuations, continuations-in-part,
revisions and extensions thereof, (iii) all claims for, and rights to xxx for,
past or future infringements of any of the foregoing and (iv) all income,
royalties, damages and payments now or hereafter due or payable with respect
to any of the foregoing, including, without limitation, damages and payments
for past or future infringements thereof.
"Patent Security Agreement" means a Patent Security Agreement,
substantially in the form of Exhibit C hereto, executed and delivered by a Lien
Grantor in favor of the Administrative Agent, for the benefit of the Secured
Parties, as amended from time to time.
"Perfection Certificate" means, with respect to any Lien
Grantor, a certificate substantially in the form of Exhibit E hereto,
completed and supplemented with the schedules and attachments contemplated
thereby to the reasonable satisfaction of the Administrative Agent, and duly
executed by a duly authorized officer of such Lien Grantor.
"Permitted Liens" means (i) the Security Interests and (ii) the
other Liens on the Collateral permitted to be created, to be assumed or to
exist pursuant to Section 5.09 of the Credit Agreement.
"Pledged Certificates" means at any time all "certificated
securities" (as such term is defined in Article 8 of the UCC) that evidence or
represent Pledged Equity Interests or Other Pledged Securities at such time.
"Pledged Equity Interests" means at any time all Equity
Interests included in the Collateral at such time.
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"Pledged Instruments" means at any time all Instruments
included in the Collateral at such time.
"Pledged LLC Interest" means at any time any membership
interest or similar interest in a limited liability company that is included
in the Pledged Equity Interests at such time.
"Pledged Partnership Interest" means at any time any partnership
interest (whether general or limited) that is included in the Pledged Equity
Interests at such time.
"Post-Petition Interest" means any interest which accrues after
the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Borrower or would accrue but
for the operation of applicable bankruptcy or insolvency laws, whether or not
such interest is allowed or allowable as a claim in any such proceeding.
"Proceeds" means, with respect to any Lien Grantor, all
proceeds of, and all other profits, products, rents or receipts, in whatever
form, arising from the collection, sale, lease, exchange, assignment,
licensing or other disposition of, or other realization upon, its Collateral,
including without limitation all claims of such Lien Grantor against third
parties for loss of, damage to or destruction of, or for proceeds payable
under, or unearned premiums with respect to, policies of insurance in respect
of, any of its Collateral, and any condemnation or requisition payments with
respect to any of its Collateral, in each case whether now existing or
hereafter arising.
"Secured Obligations" means:
(a) with respect to the Borrower, all principal of all Loans,
Swingline Loans and LC Reimbursement Obligations outstanding from time to time
under the Credit Agreement, all interest (including, without limitation,
Post-Petition Interest) on such Loans, Swingline Loans and LC Reimbursement
Obligations and all other amounts now or hereafter payable by the Borrower
pursuant to any Loan Document;
(b) with respect to any Subsidiary Guarantor, all
obligations of such Subsidiary Guarantor under the Subsidiary Guaranty
Agreement or any other Loan Document (including, without limitation,
obligations in respect of Post-Petition Interest); and
(c) with respect to any Lien Grantor, any renewals or
extensions of any Secured Obligations.
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"Secured Parties" means the holders from time to time of the
Secured Obligations.
"Security Agreement Supplement" means a letter substantially in
the form of Exhibit A hereto, executed and delivered to the Administrative
Agent pursuant to Section 17 for the purpose of adding a new Subsidiary
Guarantor as a party hereto and/or adding additional property to the
Collateral.
"Security Interests" means the security interests in Collateral
granted by the Lien Grantors under the Collateral Documents securing the
Secured Obligations.
"Subsidiary Guarantors" means each Person listed on the
signature pages hereof under the caption "Subsidiary Guarantors" and each
Person that shall, at any time after the date hereof, become a party hereto
and a "Subsidiary Guarantor" as provided in Section 17.
"Trademark License" means any agreement now or hereafter in
existence granting to any Lien Grantor, or pursuant to which any Lien Grantor
has granted to any other Person, any right to use any Trademark, including,
without limitation, any agreement identified in Schedule 1 to any Trademark
Security Agreement.
"Trademarks" means: (i) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos, brand names, trade dress, prints and labels on which any
of the foregoing have appeared or appear, package and other designs, and any
other source or business identifiers, and general intangibles of like nature,
and the rights in any of the foregoing which arise under applicable law, (ii)
the goodwill of the business symbolized thereby or associated with each of
them, (iii) all registrations and applications in connection therewith,
including, without limitation, registrations and applications in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, including, without limitation, those described in
Schedule 1 to any Trademark Security Agreement, (iv) all renewals thereof, (v)
all claims for, and rights to xxx for, past or future infringements of any of
the foregoing and (vi) all income, royalties, damages and payments now or
hereafter due or payable with respect to any of the foregoing, including,
without limitation, damages and payments for past or future infringements
thereof.
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"Trademark Security Agreement" means a Trademark Security
Agreement, substantially in the form of Exhibit D hereto, executed and
delivered by a Lien Grantor in favor of the Administrative Agent, for the
benefit of the Secured Parties, as amended from time to time.
"UCC" means the Uniform Commercial Code as in effect on the date
hereof in the State of New York; provided that if, by reason of mandatory
provisions of law, the perfection or the effect of perfection or non-perfection
of any Security Interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than New York, "UCC"
means the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such perfection or effect of
perfection or non-perfection.
"U.S. Person" means any Person other than a Foreign Person.
Section 2. Representations and Warranties. Each Lien Grantor
represents and warrants that:
(a) Such Lien Grantor owns the Equity Interests listed as
being owned by it in Schedule 1 hereto or to any Security Agreement
Supplement to which it is a party, free and clear of any Lien other than
the Security Interests. All shares of capital stock identified in any such
Schedule as being beneficially owned by such Lien Grantor have been duly
authorized and validly issued, are fully paid and non-assessable, and are
subject to no option to purchase or similar right of any Person. Such Lien
Grantor is not and will not become a party to or otherwise bound by any
agreement, other than the Financing Documents, which restricts in any
manner the rights of any present or future holder of any Equity Interest
with respect thereto.
(b) Such Lien Grantor has good and marketable title to all
of its Collateral, other than such exceptions to title as are immaterial in
nature, free and clear of any Liens other than Permitted Liens. Such Lien
Grantor has taken all actions, if any, necessary under the UCC to perfect
its interest in any Accounts purchased or otherwise acquired by it, as
against its assignors and creditors of its assignors.
(c) Such Lien Grantor has not performed any acts that would be
reasonably likely to prevent the Administrative Agent from enforcing any of
the provisions of the Collateral Documents or that would limit the
Administrative Agent in any such enforcement. No financing statement,
security agreement, mortgage or similar or equivalent document or instrument
covering all or any part of the Collateral owned by it is on file or of record
in any jurisdiction in which such filing or recording would be effective to
perfect or record a Lien on such Collateral, except financing statements,
mortgages or other similar or equivalent documents with respect to Permitted
Liens. After the Closing, no Collateral owned by it will be in the possession
of any Person (other than such Lien Grantor) asserting any claim thereto or
security interest therein (other than a Lien permitted under Section 5.09(d)
of the Credit Agreement), except that the Administrative Agent or its designee
may have possession of Collateral as contemplated hereby.
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(d) Such Lien Grantor has delivered a Perfection
Certificate to the Administrative Agent. The information set forth therein
is correct and complete as of the Closing Date. Not later than 60 days
after the Closing Date, such Lien Grantor shall furnish to the
Administrative Agent file search reports from each UCC filing office set
forth in Schedule 7 to the Perfection Certificate.
(e) The Security Interests constitute, under the UCC, valid
security interests in all Collateral owned by such Lien Grantor, securing its
Secured Obligations other than any Collateral the grant of a security in which
is excluded from Section 9-104 of the UCC.
(f) Upon the delivery of actual possession of the Pledged
Instruments (if any) and the Pledged Certificates owned by such Lien Grantor
to the Administrative Agent in accordance with Section 4, the Security
Interests in such Collateral will be perfected, subject to no prior Lien and,
in the case of any Pledged Certificates evidencing "securities" (as defined in
the UCC) the Administrative Agent will have "control" (as defined in Section
8-106 of the UCC) thereof and will be a "protected purchaser" (as defined in
Section 8-303 of the UCC) of such Security Interests therein.
(g) When UCC financing statements in the form specified in
Exhibit 6(A) to such Lien Grantor's Perfection Certificate shall have been
filed in the offices specified in such Lien Grantor's Perfection
Certificate, the Security Interests will constitute perfected security
interests in the Collateral (except Inventory in transit and Intellectual
Property) owned by such Lien Grantor to the extent that a security interest
therein may be perfected by filing pursuant to the UCC, prior to all Liens
and rights of others therein except Permitted Liens. When, in addition to
the filing of such UCC financing statements, the applicable Intellectual
Property Filings have been made with respect to such Lien Grantor's
Intellectual Property (including any future filings required pursuant to
Section 5(c) and 5(d), the Security Interests will constitute perfected
security interests in all right, title and interest of such Lien Grantor in
its Intellectual Property to the extent that security interests therein may
be perfected by such filings, prior to all other Liens and rights of others
therein except Permitted Liens. Except for the filing of such UCC
financing statements and such Intellectual Property Filings, no
registration, recordation or filing with any governmental body, agency or
official is required in connection with the execution or delivery of the
Collateral Documents or is necessary for the validity or enforceability
thereof or for the perfection or due recordation of the Security Interests
or for the enforcement of the Security Interests.
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(h) Such Lien Grantor's Collateral is insured in accordance
with the requirements of the Credit Agreement.
(i) All Inventory has or will have been produced in
compliance with the applicable requirements of the Fair Labor Standards
Act, as amended.
Section 3. The Security Interests.
(a) In order to secure the full and punctual payment of its
Secured Obligations in accordance with the terms thereof, each Lien Grantor
hereby grants to the Administrative Agent for the benefit of the Secured
Parties a continuing security interest in and to all of the following
property of such Lien Grantor, whether now owned or existing or hereafter
acquired or arising and regardless of where located:
(i) all Accounts;
(ii) all Documents;
(iii) all Equipment;
(iv) all General Intangibles, except to the extent that, in
the case of contract rights, a grant of such a security interest would cause
the applicable contract to be void or voidable or would constitute a default
under such contract;
(v) all Instruments;
(vi) all Inventory;
(vii) (x) all Equity Interests in any U.S. Person now owned or
hereafter beneficially owned by such Lien Grantor, (y) the lesser of all
voting Equity Interests in any Foreign Person now owned or hereafter
beneficially acquired by such Lien Grantor and 65% of all voting Equity
Interests in such Foreign Person held by any Person and (z) all non-voting
Equity Interests in any Foreign Person now owned or hereafter beneficially
acquired by such Lien Grantor and, in each case, all rights and privileges of
such Lien Grantor with respect to such Equity Interests, and all dividends,
distributions and other payments with respect thereto;
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(viii) all Other Investment Property;
(ix) the Insurance Account, all cash deposited in either of
the foregoing from time to time and the Temporary Cash Investments therein
from time to time;
(x) all books and records (including, without limitation,
customer lists, credit files, computer programs, printouts and other computer
materials and records) of such Lien Grantor pertaining to any of its
Collateral; and
(xi) all Proceeds of the collateral described in the
foregoing clauses(i) through (x).
(b) The Security Interests are granted as security only and
shall not subject the Administrative Agent or any other Secured Party to,
or transfer or in any way affect or modify, any obligation or liability of
any Lien Grantor with respect to any of the Collateral or any transaction
in connection therewith.
Section 4. Delivery of Certain Collateral. (a) On the
Closing Date, each Original Lien Grantor is delivering to the Administrative
Agent as Collateral hereunder (i) with respect to each U.S. Person, all stock
certificates or other certificates representing Equity Interests in such U.S.
Person then owned by such Original Lien Grantor, (ii) with respect to each
Foreign Person, stock certificates or other certificates representing (A) the
lesser of (1) all voting Equity Interests in such Foreign Person then owned by
such Original Lien Grantor and (2) 65% of all voting Equity Interests in such
Foreign Person and (B) all non-voting equity Interests in such Foreign Person
then owed by such Original Lien Grantor and (iii) all Instruments and all
certificates evidencing Other Pledged Securities then owned by such Person.
(b) On the date it signs and delivers its Security Agreement
Supplement, each Lien Grantor (other than an Original Lien Grantor) will
deliver to the Administrative Agent as Collateral hereunder (i) with respect to
each U.S. Person, all stock certificates or other certificates representing
Equity Interests in such U.S. Person then owned by it, (ii) with respect to
each Foreign Person stock certificates or other certificates representing (A)
the lesser of (1) all voting Equity Interests in such Foreign Person then
owned by such Original Lien Grantor and (2) 65% of all voting Equity Interests
in such Foreign Person and (B) all non-voting equity Interests in such Foreign
Person then owed by such Original Lien Grantor and (iii) all Instruments and
all certificates evidencing Other Pledged Securities then owned by such
Person.
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(c) After the Closing Date (in the case of an Original Lien
Grantor) or the date of its Security Agreement Supplement (in the case of any
other Lien Grantor), if any Lien Grantor receives (i) any stock certificate or
other certificate representing Equity Interests in another Person then owned
by it (provided that no Lien Grantor shall be required to pledge more than 65%
of the voting Equity Interests in any Foreign Person), (ii) any certificate
representing any Other Pledged Securities then owned by it or (iii) any
Instrument, in which a security interest is granted pursuant to Section 3
hereof or pursuant to the Security Agreement Supplement signed by it, such Lien
Grantor will immediately deliver such certificate or Instrument to the
Administrative Agent to be held by it as Collateral hereunder.
(d) Notwithstanding the foregoing, so long as no Event of
Default shall have occurred and be continuing, each Lien Grantor may retain
for collection in the ordinary course any Instruments received by it in the
ordinary course of business, and the Administrative Agent shall, promptly
upon request by such Lien Grantor, make appropriate arrangements for making
any other Instrument pledged by such Lien Grantor hereunder available to it
for purposes of presentation, collection or renewal (any such arrangement
to be effected, to the extent deemed appropriate by the Administrative
Agent, against trust receipt or like document).
(e) All Pledged Certificates delivered to the
Administrative Agent hereunder will be delivered in suitable form for
transfer by delivery, or accompanied by duly executed instruments of
transfer or assignment in blank and accompanied by any required transfer
tax stamps, all in form and substance satisfactory to the Administrative
Agent. All Pledged Instruments delivered to the Administrative Agent
hereunder will be endorsed to the order of the Administrative Agent and
accompanied by any required transfer tax stamps, all in form and substance
satisfactory to the Administrative Agent.
Section 5. Further Assurances; Covenants. Each Lien Grantor
covenants as follows:
(a) It will not change its name, identity or corporate
structure in any manner unless such Lien Grantor shall have given the
Administrative Agent prior notice thereof and delivered an Opinion of
Counsel with respect thereto in accordance with Section 5(e).
(b) It will not change the location of (i) its chief
executive office or chief place of business or (ii) the locations where it
keeps or holds any Collateral or any records relating thereto from the
applicable locations described in its Perfection Certificate (other than
with respect to Inventory in transit from one such location to another such
location), unless such Lien Grantor shall have given the Administrative
Agent prior notice thereof and delivered an Opinion of Counsel with respect
thereto in accordance with Section 5(e). It will not in any event change
the location of any Collateral owned by it if such change would cause the
Security Interests in such Collateral to lapse or cease to be perfected.
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(c) It will, from time to time, at its expense, execute,
deliver, file and record any statement, assignment, instrument, document,
agreement or other paper and take any other action (including, without
limitation, any filings of financing or continuation statements under the
UCC and any Intellectual Property Filings) that from time to time may be
necessary or desirable, or that the Administrative Agent may reasonably
request, in order to create, preserve, perfect, confirm or validate the
Security Interests in such Lien Grantor's Collateral or to enable the
Administrative Agent and the other Secured Parties to obtain the full
benefits of the Collateral Documents, or to enable the Administrative Agent
to exercise and enforce any of its rights, powers and remedies thereunder
with respect to any of such Lien Grantor's Collateral. To the extent
permitted by applicable law, such Lien Grantor authorizes the
Administrative Agent to execute and file such financing statements or
continuation statements without such Lien Grantor's signature appearing
thereon. Such Lien Grantor agrees that a carbon, photographic, photostatic
or other reproduction of this Agreement or of a financing statement is
sufficient as a financing statement. Such Lien Grantor shall pay the costs
of, or incidental to, any recording or filing of any such financing or
continuation statements in which it is named as the debtor. Such Lien
Grantor hereby constitutes the Administrative Agent its attorney-in-fact to
execute and file all Intellectual Property Filings required or so requested
for the foregoing purposes, all acts of such attorney being hereby ratified
and confirmed; and such power, being coupled with an interest, shall be
irrevocable until such Lien Grantor's Collateral is released pursuant to
Section 16.
(d) On the Closing Date (in the case of an Original Lien
Grantor) or the date of its Security Agreement Supplement (in the case of
any other Lien Grantor), it will sign and deliver to the Administrative
Agent Intellectual Property Security Agreements with respect to all
Intellectual Property owned by it on such date. Within 30 days of each
March 31 and September 30 thereafter, it will sign and deliver to the
Administrative Agent Intellectual Property Security Agreements with respect
to all Intellectual Property owned by it on such March 31 or September 30
that is not covered by Intellectual Property Security Agreements previously
so signed and delivered by it. In each case, it will make all Intellectual
Property Filings necessary to record the Security Interests in such
Intellectual Property.
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(e) At least 30 days before it takes any action
contemplated by Section 5(a) or 5(b), such Lien Grantor will, at its
expense, cause to be delivered to the Administrative Agent an Opinion of
Counsel, in form and substance satisfactory to the Administrative Agent, to
the effect that all financing statements and amendments or supplements
thereto, continuation statements and other documents required to be
recorded or filed in order to perfect the Security Interests against all
creditors of and purchasers from such Lien Grantor (except any continuation
statements specified in such Opinion of Counsel that are to be filed more
than six months after the date thereof) have been filed in each filing
office necessary for such purpose and that all filing fees and taxes, if
any, payable in connection with such filings have been paid in full.
(f) If any of its Collateral is at any time in the
possession or control of any warehouseman, bailee or agent, such Lien
Grantor will notify such warehouseman, bailee or agent of the Security
Interests and instruct it to hold all such Collateral for the
Administrative Agent's account subject to the Administrative Agent's
instructions (which shall permit such Collateral to be removed by such Lien
Grantor in the ordinary course of business until the Administrative Agent
notifies such warehouseman, bailee or agent of the occurrence of an Event
of Default).
(g) It shall keep full and accurate books and records
relating to its Collateral, and stamp or otherwise xxxx such books and
records in such manner as the Administrative Agent may reasonably request
in order to reflect the Security Interests.
(h) It shall use commercially reasonable efforts, in
accordance with its regular business practices, to cause to be collected
from its account debtors, as and when due, any and all amounts owing under
or on account of each of its Accounts (including, without limitation,
Accounts which are delinquent, such Accounts to be collected in accordance
with lawful collection procedures) and shall apply forthwith upon receipt
thereof all such amounts as are so collected to the outstanding balance of
such Accounts. Subject to the rights of the Administrative Agent and the
other Secured Parties hereunder if an Event of Default shall have occurred
and be continuing, such Lien Grantor may allow in the ordinary course of
business as adjustments to amounts owing under its Accounts (i) an
extension or renewal of the time or times of payment, or settlement for
less than the total unpaid balance, which such Lien Grantor finds
appropriate in accordance with sound business judgment and (ii) refunds or
credits, all in accordance with such Lien Grantor's ordinary course of
business consistent with its historical collection practices. The costs
and expenses (including, without limitation, attorney's fees) of
collection, whether incurred by such Lien Grantor or the Administrative
Agent, shall be borne by such Lien Grantor.
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(i) If an Event of Default shall have occurred and be
continuing, such Lien Grantor will, if requested to do so by the
Administrative Agent, promptly notify (and such Lien Grantor hereby
authorizes the Administrative Agent so to notify) each account debtor in
respect of any of its Accounts or Instruments that such Collateral has been
assigned to the Administrative Agent hereunder, and that any payments due
or to become due in respect of such Collateral are to be made directly to
the Administrative Agent or its designee.
(j) Such Lien Grantor will not sell, lease, exchange,
assign or otherwise dispose of, or grant any option with respect to, any of
its Collateral; provided that, unless an Event of Default shall have
occurred and be continuing, (i) such Lien Grantor may sell, lease or
otherwise dispose of its Inventory and obsolete, worn out or unnecessary
Equipment in the ordinary course of business and (ii) such Lien Grantor may
sell any of its other Collateral if (x) the sale thereof does not violate
any covenant in the Credit Agreement and (y) in the case of an Asset Sale,
the Net Cash Proceeds thereof are applied as provided in Section 2.13 of
the Credit Agreement. Concurrently with any sale or exchange permitted by
the foregoing proviso, the Security Interests in the assets sold or
exchanged (but not in any Proceeds arising from such sale or exchange)
shall cease immediately without any further action on the part of the
Administrative Agent or any other Secured Party.
(k) Such Lien Grantor will, promptly upon request, provide
to the Administrative Agent all information and evidence it may reasonably
request concerning its Collateral to enable the Administrative Agent to
enforce the provisions of the Collateral Documents.
(l) From time to time upon request by the Administrative
Agent, such Lien Grantor shall, at its expense, cause to be delivered to
the Secured Parties an Opinion of Counsel satisfactory to the
Administrative Agent as to such matters relating to the transactions
contemplated hereby as the Required Lenders may reasonably request.
(m) Unless the Term Loans are repaid in full on or prior to
the Assessment Date, such Lien Grantor shall, at its expense, on the
Assessment Date (or, if later, the date of such Lien Grantor's Security
Agreement Supplement) and on each date on which an Equity Interest in a
Foreign Person is pledged hereunder, cause to be delivered to the Secured
Parties an Opinion of Counsel (from the jurisdiction in which such Foreign
Person is organized) satisfactory to the Administrative Agent as to the
perfection of the Security Interests therein.
(n) (i) Such Lien Grantor shall notify the Administrative
Agent promptly if it has actual knowledge that any application or
registration relating to any material Intellectual Property owned or
licensed by it is reasonably likely to become abandoned or dedicated to the
public, or of any materially adverse determination or development
(including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States
Copyright Office, the United States Patent and Trademark Office or any
court) regarding such Lien Grantor's ownership of such material
Intellectual Property, its right to register or patent the same, or its
right to keep and maintain the same and (ii) if such Lien Grantor has
actual knowledge that any of such Lien Grantor's rights to any material
Intellectual Property are infringed, misappropriated or diluted by a third
party, such Lien Grantor shall notify the Administrative Agent within 30
days after it learns thereof and shall, unless such Lien Grantor shall
reasonably determine that any such action would be of negligible value,
economic or otherwise, promptly xxx for infringement, misappropriation or
dilution and to recover any and all damages for such infringement,
misappropriation or dilution, and take such other actions as such Lien
Grantor shall reasonably deem appropriate under the circumstances to
protect such Intellectual Property.
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(o) Such Lien Grantor shall, (i) on or prior to the date of
the first Borrowing, in the case of Equipment now owned and (ii) within 10
days of acquiring any other Equipment, deliver to the Administrative Agent
any and all certificates of title, applications for title or similar
evidence of ownership of such Equipment and shall cause the Administrative
Agent to be named as lienholder on any such certificate of title or other
evidence of ownership. Such Lien Grantor shall promptly inform the
Administrative Agent of any additions to or deletions from the Equipment
and shall not permit any such items to become a fixture to real estate or
an accession to other personal property.
(p) There is hereby established with the Administrative
Agent a cash collateral account (the "Insurance Account") in the name and
under the control of the Administrative Agent into which there shall be
deposited any amounts required to be paid to the Administrative Agent
pursuant to Section 5.03(d) of the Credit Agreement. Any income received
by the Administrative Agent with respect to the balance from time to time
standing to the credit of the Collateral Account, including any interest or
capital gains on Temporary Cash Investments, shall remain, or be deposited,
in the Insurance Account. All right, title and interest in and to the cash
amounts on deposit from time to time in the Insurance Account, together
with any Temporary Cash Investments from time to time made pursuant to
Section 5(s) hereof shall vest in the Agent, shall constitute part of the
Collateral hereunder and shall not constitute payment of the Secured
Obligations until applied thereto as hereinafter provided.
17
(q) The Agent shall apply to repayment of the Term Loans those
amounts on deposit in the Insurance Account which are required to be applied
to the repayment of the Term Loans in accordance with Section 2.04(c)(i) of
the Credit Agreement.
(r) Except upon the occurrence and continuation of an Event of
Default, the Administrative Agent agrees to distribute such amounts to the
Borrower at such times and in such amounts as the Borrower shall request for
the purpose of repairing, reconstructing or replacing the property in respect
of which such Major Casualty Proceeds were received. Any such request shall
be accompanied by a certificate of the chief financial officer or treasurer of
the Borrower setting forth in detail reasonably satisfactory to the
Administrative Agent the repair, reconstruction or replacement for which such
funds will be expended and distributions shall be requested by the Borrower
only when and as needed to the pay the costs of such repair, reconstruction or
replacement. If immediately available cash on deposit in the Insurance
Account is not sufficient to make any distribution to the Borrower referred to
in the previous sentence of this paragraph, the Administrative Agent shall
cause to be liquidated as promptly as practicable such Temporary Cash
Investments in the Insurance Account designated by the Borrower as required to
obtain sufficient cash to make such distribution and, notwithstanding any
other provision of this paragraph, such distribution shall not be made until
such liquidation has taken place. Upon the occurrence and continuation of an
Event of Default, the Agent shall, if so instructed by the Required Lenders,
apply or cause to be applied (subject to collection) any or all of the balance
from time to time standing to the credit of the Insurance Account in the
manner specified in Section 12.
(s) Amounts on deposit in the Insurance Account shall be
invested and re-invested from time to time in such Temporary Cash
Investments as the Borrower shall determine, which Temporary Cash
Investments shall be held in the name and be under the control of the
Administrative Agent; provided that, if an Event of Default has occurred
and is continuing, the Administrative Agent shall, if instructed by the
Required Lenders, cause such Temporary Cash Investments to be liquidated
and apply or cause to be applied the proceeds thereof to the payment of the
Secured Obligations in the manner specified in Section 12.
Section 6. Record Ownership of Pledged Equity Securities. The
Administrative Agent may at any time or from time to time, in its sole
discretion cause the Pledged Equity Interests (or any portion thereof) to be
transferred of record into the name of the Administrative Agent or its
nominee. Each Lien Grantor will promptly give to the Administrative Agent
copies of any notices and other communications received by it with respect to
Pledged Equity Interests registered in its name, and the Administrative Agent
will promptly give to such Lien Grantor copies of any notices and other
communications received by the Administrative Agent with respect to such Lien
Grantor's Pledged Equity Interests registered in the name of the
Administrative Agent or its nominee.
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Section 7. Right to Vote Pledged Equity Interests. (a) Unless
an Event of Default shall have occurred and be continuing, each Lien Grantor
shall have the right, from time to time, to vote and to give consents,
ratifications and waivers with respect to the Pledged Equity Interests owned by
it, and the Administrative Agent shall, upon receiving a written request from
such Lien Grantor, deliver to such Lien Grantor or as specified in such request
such proxies, powers of attorney, consents, ratifications and waivers in
respect of any of such Pledged Equity Interests which are registered in the
name of the Administrative Agent or its nominee as shall be specified in such
request and be in form and substance satisfactory to the Administrative Agent.
Unless an Event of Default shall have occurred and be continuing, the
Administrative Agent shall have no right to take any action which the owner of
a Pledged Partnership Interest or Pledged LLC Interest is entitled to take
with respect thereto, except the right to receive and retain payments and
other distributions to the extent provided in Section 8.
(b) If an Event of Default shall have occurred and be
continuing, the Administrative Agent shall have the right to the extent
permitted by law (and, in the case of a Pledged Partnership Interest or
Pledged LLC Interest, by the relevant partnership agreement, limited
liability company agreement, operating agreement or other governing
document) and each Lien Grantor shall take all such action as may be
necessary or appropriate to give effect to such right, to vote and to give
consents, ratifications and waivers, and take any other action with respect
to any or all of the Pledged Equity Interests with the same force and
effect as if the Administrative Agent were the absolute and sole owner
thereof.
Section 8. Right to Receive Distributions on Collateral.
Subject to Section 16, the Administrative Agent shall have the right to
receive and to retain as Collateral hereunder all dividends, interest and
other payments and distributions made upon or with respect to the Pledged
Equity Interests and the Other Investment Property and each Lien Grantor shall
take all such action as the Administrative Agent may deem necessary or
appropriate to give effect to such right; provided that, unless an Event of
Default shall have occurred and be continuing, this sentence shall not apply
to dividends, interest and other payments and distributions made in cash or
cash equivalents ("Cash Distributions"). All such dividends, interest and
other payments and distributions which are received by any Lien Grantor
(except Cash Distributions received when no Event of Default shall have
occurred and be continuing) shall be received in trust for the benefit of the
Secured Parties and shall be segregated from other assets of such Lien Grantor
and shall, promptly upon such Lien Grantor's receipt thereof, be delivered or
paid over to the Administrative Agent in the same form as received (with any
necessary endorsements or executed assignments in blank), together with a
statement identifying the source of such Collateral and stating that it is
being delivered to the Administrative Agent to be held as Collateral under
this Agreement.
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Section 9. General Authority. Each Lien Grantor hereby
irrevocably appoints the Administrative Agent its true and lawful attorney,
with full power of substitution, in the name of such Lien Grantor, any Secured
Party or otherwise, for the sole use and benefit of the Secured Parties, but at
the expense of such Lien Grantor, to the extent permitted by law to exercise,
at any time and from time to time while an Event of Default shall have
occurred and be continuing, all or any of the following powers with respect to
all or any of such Lien Grantor's Collateral:
(i) to demand, xxx for, collect, receive and give acquittance
for any and all monies due or to become due upon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with
the same or the proceeds or avails thereof, as fully and effectually as if the
Administrative Agent were the absolute owner thereof, and
(iv) to extend the time of payment of any or all thereof and
to make any allowance and other adjustments with reference thereto;
provided that the Administrative Agent shall give such Lien Grantor not
less than ten days' prior written notice of the time and place of any sale
or other intended disposition of any Collateral owned by such Lien Grantor,
except any such Collateral which threatens to decline speedily in value or
is of a type customarily sold on a recognized market. The Administrative
Agent and each Lien Grantor agree that such notice constitutes "reasonable
notification" within the meaning of Section 9-504(3) of the UCC.
20
Section 10. Remedies upon Event of Default. (a) If an Event of
Default shall have occurred and be continuing, the Administrative Agent may
exercise on behalf of the Secured Parties all the rights of a secured party
under the UCC (whether or not in effect in the jurisdiction where such rights
are exercised) with respect to any Collateral and, in addition, the
Administrative Agent may, without being required to give any notice, except as
herein provided or as may be required by mandatory provisions of law, apply
cash, if any, then held by it as Collateral as specified in Section 12 and, if
there shall be no such cash or if such cash shall be insufficient to pay all
the Secured Obligations in full, sell the Collateral or any part thereof at
public or private sale or at any broker's board or on any securities exchange,
for cash, upon credit or for future delivery, and at such price or prices as
the Administrative Agent may deem satisfactory. Any Secured Party may be the
purchaser of any or all of the Collateral so sold at any public sale (or, if
the Collateral is of a type customarily sold in a recognized market or is of a
type which is the subject of widely distributed standard price quotations, at
any private sale). The Administrative Agent is authorized, in connection with
any such sale, if it deems it advisable so to do, to restrict the prospective
bidders on or purchasers of any of the securities included in the Collateral
to a limited number of sophisticated investors who will represent and agree
that they are purchasing for their own account for investment and not with a
view to the distribution or sale of any of such securities, to cause to be
placed on any security included in the Collateral a legend to the effect that
such security has not been registered under the Securities Act of 1933 and may
not be disposed of in violation of the provisions of said Act, and to impose
such other limitations or conditions in connection with any such sale as the
Administrative Agent deems necessary or advisable in order to comply with said
Act or any other law. Each Lien Grantor agrees that it will execute and
deliver such documents and take such other action as the Administrative Agent
deems necessary or advisable in order that any such sale may be made in
compliance with law. Upon any such sale the Administrative Agent shall have
the right to deliver, assign and transfer to the purchaser thereof the
Collateral so sold. Each purchaser at any such sale shall hold the Collateral
so sold to it absolutely and free from any claim or right of whatsoever kind,
including any equity or right of redemption of any Lien Grantor which may be
waived, and each Lien Grantor, to the extent permitted by law, hereby
specifically waives all rights of redemption, stay or appraisal which it has
or may have under any law now existing or hereafter adopted. Notice of any
such sale shall be given to the relevant Lien Grantor(s) as required by
Section 9 and shall in case of a public sale, state the time and place fixed
for such sale, in case of sale at a broker's board or on a securities
exchange, state the board or exchange at which such sale is to be made and the
day on which the Collateral, or the portion thereof so being sold, will first
be offered for sale at such board or exchange, and in case of a private sale,
state the day after which such sale may be consummated. Any such public sale
shall be held at such time or times within ordinary business hours and at such
place or places as the Administrative Agent may fix in the notice of such
sale. At any such sale the Collateral may be sold in one lot as an entirety
or in separate parcels, as the Administrative Agent may determine. The
Administrative Agent shall not be obligated to make any such sale pursuant to
any such notice. The Administrative Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such
sale may be made at any time or place to which the same may be so adjourned.
In the case of any sale of all or any part of the Collateral on credit or for
future delivery, the Collateral so sold may be retained by the Administrative
Agent until the selling price is paid by the purchaser thereof, but the
Administrative Agent shall not incur any liability in the case of the failure
of such purchaser to take up and pay for the Collateral so sold and, in the
case of any such failure, such Collateral may again be sold upon like notice.
The Administrative Agent, instead of exercising the power of sale herein
conferred upon it, may proceed by a suit or suits at law or in equity to
foreclose the Security Interests and sell the Collateral, or any portion
thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
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(b) For the purpose of enforcing any and all rights and
remedies under this Agreement the Administrative Agent may (i) require each
Lien Grantor to, and each Lien Grantor agrees that it will, at its expense
and upon the request of the Administrative Agent, forthwith assemble all or
any part of its Collateral as directed by the Administrative Agent and make
it available at a place designated by the Administrative Agent which is, in
its opinion, reasonably convenient to the Administrative Agent and such
Lien Grantor, whether at the premises of such Lien Grantor or otherwise,
(ii) to the extent permitted by applicable law, enter, with or without
process of law and without breach of the peace, any premises where any of
the Collateral is or may be located, and without charge or liability to it
seize and remove such Collateral from such premises, (iii) have access to
and use such Lien Grantor's books and records relating to its Collateral
and (iv) prior to the disposition of its Collateral, store or transfer it
without charge in or by means of any storage or transportation facility
owned or leased by such Lien Grantor, process, repair or recondition it or
otherwise prepare it for disposition in any manner and to the extent the
Administrative Agent deems appropriate and, in connection with such
preparation and disposition, use without charge any trademark, trade name,
copyright, patent or technical process used by such Lien Grantor. The
Administrative Agent may also render any or all of such Collateral unusable
at such Lien Grantor's premises and may dispose of such Collateral on such
premises without liability for rent or costs.
(c) Without limiting the generality of the foregoing, if an
Event of Default shall have occurred and be continuing,
(i) the Administrative Agent may license, or sublicense,
whether general, special or otherwise, and whether on an exclusive or
non-exclusive basis, any Intellectual Property included in the Collateral
throughout the world for such term or terms, on such conditions and in such
manner as the Administrative Agent shall in its sole discretion determine;
provided that such licenses do not conflict with any existing license a copy
of which has been delivered to the Administrative Agent;
22
(ii) the Administrative Agent may (without assuming any
obligations or liability thereunder), at any time and from time to time, in
its sole and reasonable discretion, enforce (and shall have the exclusive
right to enforce) against any licensee or sublicensee all rights and remedies
of any Lien Grantor in, to and under any of its Intellectual Property and take
or refrain from taking any action under any thereof, and each Lien Grantor
hereby releases the Administrative Agent and each of the other Secured Parties
from, and agrees to hold the Administrative Agent and each of the other
Secured Parties free and harmless from and against any claims and expenses
arising out of, any lawful action so taken or omitted to be taken with respect
thereto, except for claims and expenses arising from the Administrative Agent's
or such Secured Party's gross negligence or willful misconduct; and
(iii) upon request by the Administrative Agent (which shall not
be construed as implying any limitation on the rights or powers of the
Administrative Agent), each Lien Grantor will execute and deliver to the
Administrative Agent a power of attorney, in form and substance satisfactory
to the Administrative Agent, for the implementation of any lease, assignment,
license, sublicense, grant of option, sale or other disposition of any
Intellectual Property owned by such Lien Grantor or any action related
thereto. In the event of any such disposition pursuant to this Section,
subject to confidentiality restrictions imposed on such Lien Grantor in any
license or similar agreement, such Lien Grantor shall supply its know-how and
expertise relating to or the products or services made or rendered in
connection with Patents, and its customer lists and other records relating to
such Intellectual Property and to the distribution of said products or
services, to the Administrative Agent.
Section 11. Limitation on Duty of Administrative Agent in
Respect of Collateral. Beyond the exercise of reasonable care in the custody
thereof, the Administrative Agent shall have no duty as to any Collateral in
its possession or control or in the possession or control of any agent or
bailee or any income thereon or as to the preservation of rights against prior
parties or any other rights pertaining thereto. The Administrative Agent
shall be deemed to have exercised reasonable care in the custody of the
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which it accords its own property, and shall not
be liable or responsible for any loss or damage to any of the Collateral, or
for any diminution in the value thereof, by reason of any act or omission of
any agent or bailee selected by the Administrative Agent in good faith or by
reason of any act or omission by the Administrative Agent pursuant to
instructions from the Required Lenders (including, without limitation, any
voting instruction pursuant to Section 7), except to the extent that such
liability arises from the Administrative Agent's gross negligence or willful
misconduct.
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Section 12. Application of Proceeds. (a) Upon and during the
continuance of an Event of Default the Administrative Agent shall apply any
cash held by it as Collateral and the proceeds of any sale of, or other
realization upon, all or any part of the Collateral:
first, to pay the expenses of such sale or other realization,
including reasonable compensation to agents of and counsel for the
Administrative Agent, and all expenses, liabilities and advances
incurred or made by the Administrative Agent in connection with the
Collateral Documents, and any other amounts then due and payable
to the Administrative Agent pursuant to Section 15 hereof and to
the other Agents pursuant to Section 9.03 of the Credit Agreement;
second, to pay the unpaid principal of the Secured
Obligations ratably (or provide for the payment thereof pursuant
to subsection (b) of this Section), until payment in full of the
principal of all Secured Obligations shall have been made (or so
provided for);
third, to pay all interest (including Post-Petition
Interest) on the Secured Obligations and all letter of credit fees
and commitment fees payable under the Credit Agreement ratably,
until payment in full of all such interest and fees shall have
been made;
fourth, to pay all other Secured Obligations ratably (or
provide for the payment thereof pursuant to subsection (b) of this
Section), until payment in full of all such other Secured
Obligations shall have been made (or so provided for); and
finally, to pay to the relevant Lien Grantor or its
successors or assigns, or as a court of competent jurisdiction may
direct, any surplus then remaining from the proceeds of the
Collateral owned by it;
provided that Collateral owned by a Subsidiary Guarantor and any proceeds
thereof shall be applied pursuant to the foregoing clauses first, second, third
and fourth only to the extent of the Secured Obligations of such Subsidiary
Guarantor and subject to the limitation in Section 9 of the Subsidiary Guaranty
Agreement). The Administrative Agent may make such distributions hereunder in
cash or in kind or, on a ratable basis, in any combination thereof.
24
(b) If at any time any portion of any monies collected or
received by the Administrative Agent would, but for the provisions of this
subsection (b), be payable pursuant to subsection (a) of this Section in
respect of a Contingent Secured Obligation, the Administrative Agent shall
not apply any monies to pay such Contingent Secured Obligation but (i) in
the case of any Contingent Secured Obligations other than contingent LC
Reimbursement Obligations, shall request the holder thereof, at least three
Domestic Business Days before each proposed distribution hereunder, to
notify the Administrative Agent as to the maximum amount of such Contingent
Secured Obligation if then ascertainable and if the holder of such
Contingent Secured Obligation does not notify the Administrative Agent of
the maximum ascertainable amount thereof at least two Domestic Business
Days before such distribution, such holder shall not be entitled to share
in such distribution. In the case of any holder of Contingent Secured
Obligations consisting of contingent LC Reimbursement Obligations or other
Contingent Secured Obligations as to which the Administrative Agent shall
have received notice from the holder thereof in accordance with the
preceding sentence, the Administrative Agent will allocate to such holder a
portion of the monies to be distributed in such distribution, calculated as
if such Contingent Secured Obligation were outstanding in such maximum
ascertainable amount. However, the Administrative Agent shall not apply
such portion of such monies to pay such Contingent Secured Obligation, but
instead shall hold such monies or invest such monies in Temporary Cash
Investments at the direction of the holder of such Contingent Secured
Obligation. All such monies and Temporary Cash Investments shall
constitute collateral hereunder and shall be subject to the Security
Interests, but shall be subject to distribution in accordance with this
subsection (b) rather than subsection (a) above. The Administrative Agent
shall hold all such monies and all such Temporary Cash Investments and the
net proceeds thereof in trust until such time as all or part of such
Contingent Secured Obligation becomes a Non-Contingent Secured Obligation,
whereupon the Administrative Agent at the request of the relevant Secured
Party shall apply the amount so held in trust to pay such Non-Contingent
Secured Obligation; provided that, if the other Secured Obligations
theretofore paid pursuant to the same clause of subsection (a) (i.e.,
clause second or fourth) were not paid in full, the Administrative Agent
shall apply the amount so held in trust to pay the same percentage of such
Non-Contingent Secured Obligation as the percentage of such other Secured
Obligations theretofore paid pursuant to the same clause of subsection (a).
If (i) the holder of such Contingent Secured Obligation shall advise the
Administrative Agent that no portion thereof remains in the category of a
Contingent Secured Obligation and (ii) the Administrative Agent still holds
any amount held in trust pursuant to this subsection (b) in respect of such
Contingent Secured Obligation (after paying all amounts payable pursuant to
the preceding sentence with respect to any portions thereof that became
Non-Contingent Secured Obligations), such remaining amount shall be applied
by the Administrative Agent in the order of priorities set forth in
subsection (a) of this Section.
25
(c) All distributions made by the Administrative Agent
pursuant to this Section shall be final (except in the event of manifest
error) and the Administrative Agent shall have no duty to inquire as to the
application by the Secured Parties of any amount distributed to them.
Section 13. Concerning the Administrative Agent. (a) The
provisions of Article 7 of the Credit Agreement shall inure to the benefit of
the Administrative Agent in respect of this Agreement and shall be binding
upon the parties to the Credit Agreement in such respect. In furtherance
and not in derogation of the rights, privileges and immunities of the
Administrative Agent therein set forth:
(b) The Administrative Agent is authorized to take all such
action as is provided to be taken by it as Administrative Agent hereunder
and all other action reasonably incidental thereto. As to any matters not
expressly provided for herein (including, without limitation, the timing
and methods of realization upon the Collateral) the Administrative Agent
shall act or refrain from acting in accordance with written instructions
from the Required Lenders, or in the absence of such instructions, in
accordance with its discretion.
(c) The Administrative Agent shall not be responsible for the
existence, genuineness or value of any of the Collateral or for the validity,
perfection, priority or enforceability of the Security Interests in any of the
Collateral, whether impaired by operation of law or by reason of any action or
omission to act on its part hereunder. The Administrative Agent shall have no
duty to ascertain or inquire as to the performance or observance of any of the
terms of this Agreement by any Lien Grantor.
Section 14. Appointment of Co-Agents. At any time or times, in
order to comply with any legal requirement in any jurisdiction, the
Administrative Agent may appoint another bank or trust company or one or more
other persons, either to act as co-agent or co-agents, jointly with the
Administrative Agent, or to act as separate agent or agents on behalf of the
Secured Parties with such power and authority as may be necessary for the
effectual operation of the provisions of any Collateral Document and may be
specified in the instrument of appointment (which may, in the discretion of the
Administrative Agent, include provisions for the protection of such co-agent or
separate agent similar to the provisions of Section 13).
26
Section 15. Expenses. In the event that any Lien Grantor
fails to comply with the provisions of any Loan Document, such that the value
of any Collateral or the validity, perfection, rank or value of any Security
Interest is thereby diminished or reasonably likely to be diminished or put at
risk, the Administrative Agent if requested by the Required Lenders may, but
shall not be required to, effect such compliance on behalf of such Lien
Grantor, and the Borrower shall reimburse the Administrative Agent for the
costs thereof on demand. All insurance expenses and all expenses of
protecting, storing, warehousing, appraising, insuring, handling, maintaining,
and shipping the Collateral, any and all excise, property, sales, and use
taxes imposed by any state, federal, or other local authority on any of the
Collateral, or in respect of periodic appraisals and inspections of the
Collateral to the extent the same may be requested by the Required Lenders
from time to time, or in respect of the sale or other disposition thereof
shall be borne and paid by the Borrower; and if the Borrower fails to pay
promptly any portion thereof when due, the Administrative Agent or any Lender
may, at its option, but shall not be required to, pay the same and charge the
Borrower's account therefor, and the Borrower agreed to reimburse the
Administrative Agent or such Lender therefor on demand. All sums so paid or
incurred by the Administrative Agent or any Lender for any of the foregoing
and any and all other sums for which the Borrower may become liable hereunder
and all costs and expenses (including attorneys' fees, legal expenses and
court costs) reasonably incurred by the Administrative Agent or any Lender in
enforcing or protecting the Security Interests or any of their rights or
remedies under this Agreement, shall, together with interest thereon until
paid at the rate applicable to Base Rate Revolving Loans plus 2%, be
additional Secured Obligations hereunder.
Section 16. Termination of Security Interests; Release of
Collateral. (a) When (i) all the Commitments shall have expired or been
terminated, (ii) all Letters of Credit shall have expired or been canceled or
been secured with cash collateral in an amount and on terms satisfactory to
the relevant LC Issuing Bank and (iii) all outstanding Secured Obligations
shall have been paid in full, the Security Interests shall terminate and all
rights to each item of Collateral shall revert to the Lien Grantor that owns
such item of Collateral.
(b) At any time before the Security Interests terminate
pursuant to subsection (a) of this Section, the Administrative Agent may,
upon the written request of the Borrower, (i) release any of the Collateral
(but not all or substantially all of the Collateral) with the prior written
consent of the Required Lenders or (ii) release all or substantially all of
the Collateral with the prior written consent of all of the Lenders.
(c) Upon any such termination of the Security Interests or
release of Collateral, the Administrative Agent will, at the expense of the
relevant Lien Grantor, execute and deliver to such Lien Grantor such
documents as such Lien Grantor shall reasonably request to evidence the
termination of the Security Interests or the release of such Collateral, as
the case may be.
27
Section 17. Additional Subsidiary Guarantors. Any Subsidiary
of the Borrower which is not a party hereto may become a party hereto by
executing and delivering to the Administrative Agent a Security Agreement
Supplement, whereupon such Subsidiary shall become a "Subsidiary Guarantor", a
"Lien Grantor" and a party hereto.
Section 18. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission or similar writing) and shall be given to such party (i) in the
case of any Lien Grantor, to it at the address, telex number or facsimile
number of the Borrower set forth or referred to in or pursuant to Section 9.01
of the Credit Agreement or Section 11 of the Subsidiary Guaranty or (ii) in
the case of any Lender Party, at its address or facsimile number specified in
or pursuant to Section 9.01 of the Credit Agreement. Each such notice, request
or other communication shall be effective in accordance with Section 9.01 of
the Credit Agreement.
Section 19. Waivers, Remedies Not Exclusive. No failure on
the part of the Administrative Agent to exercise, and no delay in exercising
and no course of dealing with respect to, any right or remedy under any
Collateral Document shall operate as a waiver thereof; nor shall any single or
partial exercise by the Administrative Agent of any right or remedy under the
Credit Agreement or any Collateral Document preclude any other or further
exercise thereof or the exercise of any other right or remedy. The rights and
remedies specified in the Collateral Documents and the Credit Agreement are
cumulative and are not exclusive of any other rights or remedies provided by
law.
Section 20. Successors and Assigns. This Agreement is for the
benefit of the Administrative Agent and the Secured Parties and their
respective successors and assigns, and in the event of an assignment of all or
any of the Secured Obligations, the rights of the holder thereof hereunder, to
the extent applicable to the indebtedness so assigned, shall be transferred
with such indebtedness. This Agreement shall be binding on the Lien Grantors
and their respective successors and assigns.
Section 21. Changes in Writing. Neither this Agreement nor any
provision hereof may be amended, waived, discharged or terminated except in
accordance with Section 9.05(b) of the Credit Agreement.
Section 22. New York Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, except as
otherwise required by mandatory provisions of law and except to the extent
that remedies provided by the laws of any jurisdiction other than the State of
New York are governed by the laws of such jurisdiction.
28
Section 23. Severability. If any provision of any Collateral
Document is invalid or unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, the other provisions of the Collateral Documents shall
remain in full force and effect in such jurisdiction and shall be liberally
construed in favor of the Administrative Agent and the Secured Parties in
order to carry out the intentions of the parties thereto as nearly as may be
possible; and the invalidity or unenforceability of any provision thereof in
any jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
29
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
SYBRON CHEMICALS INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
SYBRON CHEMICAL HOLDINGS INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
RUCO POLYMER CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
RUCO POLYMER COMPANY OF
GEORGIA, LLC
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
MELLON BANK, N.A., as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
EXHIBIT A
to Security Agreement
SECURITY AGREEMENT SUPPLEMENT
SECURITY AGREEMENT SUPPLEMENT dated as of _______, ____,
between [name of Subsidiary Guarantor] (the "New Lien Grantor") and Mellon
Bank, N.A., as Administrative Agent.
WHEREAS, Sybron Chemicals Inc., the Lien Grantors party thereto
and Mellon Bank, N.A., as Administrative Agent, are parties to a Security
Agreement dated as of ________, 1998 (as heretofore amended, supplemented or
otherwise modified, the "Security Agreement");
WHEREAS, terms defined in the Security Agreement (or whose
definitions are incorporated by reference in Section 1 of the Security
Agreement) and not otherwise defined herein have, as used herein, the
respective meanings provided for therein; and
WHEREAS, [name of New Lien Grantor] desires to become a party to
the Security Agreement as an additional Lien Grantor thereunder;
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Security Interest. (a) In order to secure the
full and punctual payment of the Secured Obligations in accordance with the
terms thereof, the New Lien Grantor grants to the Administrative Agent for
the benefit of the Secured Parties a continuing security interest in all of
the following assets of the New Lien Grantor, whether now owned or existing
or hereafter acquired or arising and regardless of where located (the "New
Collateral"):
(i) all Accounts;
(ii) all Documents;
(iii) all Equipment;
(iv) all General Intangibles, except to the extent that, in
the case of contract rights, a grant of such a security interest would cause
the applicable contract to be void or voidable or would constitute a default
under such contract;
A-1
(v) all Instruments;
(vi) all Inventory;
(vii) (x) all Equity Interests in any U.S. Person now owned or
hereafter beneficially owned by such Lien Grantor, (y) the lesser of all
voting Equity Interests in any Foreign Person now owned or hereafter
beneficially acquired by such Lien Grantor and 65% of all voting Equity
Interests in such Foreign Person held by any Person and (z) all non-voting
Equity Interests in any Foreign Person now owned or hereafter beneficially
acquired by such Lien Grantor and, in each case, all rights and privileges of
such Lien Grantor with respect to such Equity Interests, and all dividends,
distributions and other payments with respect thereto;
(viii) all Other Investment Property;
(ix) the Insurance Account, all cash deposited in either of
the foregoing from time to time and the Temporary Cash Investments therein
from time to time;
(x) all books and records (including, without limitation,
customer lists, credit files, computer programs, printouts and other computer
materials and records) of such Lien Grantor pertaining to any of its
Collateral; and
(xi) all Proceeds of the collateral described in the foregoing
clauses(i) through (x).
(b) The Security Interests are granted as security only and
shall not subject the Administrative Agent or any other Secured Party to, or
transfer or in any way affect or modify, any obligation or liability of any
Lien Grantor with respect to any of the Collateral or any transaction in
connection therewith.
2. Delivery of Collateral. Concurrently with delivering this
Security Agreement Supplement to the Administrative Agent, the New Lien
Grantor is complying with the provisions of Section 4 of the Security
Agreement with respect to all stock certificates and other certificates
representing Equity Interests or Other Pledged Securities (if any) included in
the New Collateral and all Instruments (if any) included in the New
Collateral.
3. Party to Security Agreement. Upon delivery of this
Security Agreement Supplement to the Administrative Agent, the New Lien
Grantor will become a party to the Security Agreement and will thereafter
have all of the rights and obligations of a Lien Grantor thereunder and be
bound by all of the provisions thereof as fully as if the New Lien Grantor
were one of the original parties thereto.
A-2
4. Representations and Warranties.(1) (a) The New Lien
Grantor is a corporation duly incorporated, validly existing and in good
standing under the laws of [jurisdiction of incorporation].
(b) The New Lien Grantor has delivered a Perfection
Certificate to the Administrative Agent. The information set forth therein
is correct and complete as of the date hereof. Within 60 days of the date
hereof, the Subsidiary Guarantor shall furnish to the Administrative Agent
file search reports from each UCC filing office confirming the filing
information set forth in such Perfection Certificate.
(c) The execution and delivery of this Security Agreement
Supplement by the New Lien Grantor and the performance by it of its
obligations under the Security Agreement as supplemented hereby are within its
corporate or other powers, have been duly authorized by all necessary
corporate or other action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or
of its articles or certificate of incorporation or by-laws or other
constitutive documents, or of any agreement, judgment, injunction, order,
decree or other instrument binding upon it or result in the creation or
imposition of any Lien (other than the Liens created by the Collateral
Documents) on any of its assets.
(d) The Security Agreement as supplemented hereby
constitutes a valid and binding agreement of the New Lien Grantor,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency or other similar laws affecting creditors' rights generally and
general principles of equity.
(e) Each of the representations and warranties set forth in
Section 2 of the Security Agreement is true and correct as applied to the New
Lien Grantor and the New Collateral.
5. Governing Law. This Security Agreement Supplement shall be
construed in accordance with and governed by the laws of the State of New
York.
----------
(1) Modify as needed for any Subsidiary Grantor that is not a corporation.
A-3
IN WITNESS WHEREOF, the parties hereto have cause this Security
Agreement Supplement to be duly executed by their respective authorized
officers as of the day and year first above written.
[Name of New Lien Grantor]
By:___________________________
Name:
Title:
MELLON BANK, N.A.,
as Administrative Agent
By:___________________________
Name:
Title:
A-4
SCHEDULE 1
to Security Agreement
Supplement
EQUITY INTERESTS OWNED BY
NEW LIEN GRANTOR
Number of
State of Percentage Shares or Units
Name Organization Owned (if certificated)
---- ------------ ---------- -----------------
EXHIBIT B
to Security Agreement
COPYRIGHT SECURITY AGREEMENT
(Copyrights, Copyright Registrations, Copyright
Applications and Copyright Licenses)
WHEREAS, [Name of Lien Grantor], a _____________ corporation(1)
(herein referred to as the "Lien Grantor") owns, or in the case of licenses, is
a party to, the Copyright Collateral (as defined below);
WHEREAS, pursuant to the terms of the Security Agreement dated
as of ________, 1998 (as amended, supplemented or otherwise modified from time
to time, the "Security Agreement") among Sybron Chemicals Inc., the Subsidiary
Guarantors party thereto and Mellon Bank, N.A., as Administrative Agent for
the Secured Parties referred to therein (in such capacity, together with its
successors in such capacity, the "Grantee"), the Lien Grantor has granted to
the Grantee for the benefit of such Secured Parties a continuing security
interest in or other Lien on substantially all the personal property of the
Lien Grantor (except certain excluded property), including all right, title
and interest of the Lien Grantor in, to and under the Copyright Collateral (as
defined below), whether now owned or existing or hereafter acquired or
arising, to secure the Secured Obligations (as defined in the Security
Agreement) of the Lien Grantor;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Lien Grantor does hereby
grant to the Grantee, to secure the Secured Obligations of the Lien Grantor, a
continuing security interest in all of the Lien Grantor's right, title and
interest in, to and under the following (all of the following items or types
of property being herein collectively referred to as the "Copyright
Collateral"), whether now owned or existing or hereafter acquired or arising:
(i) each Copyright (as defined in the Security Agreement)
owned by the Lien Grantor, including, without limitation, each Copyright
registration or application therefor referred to in Schedule 1 hereto;
----------
(1) Modify as needed for any Lien Grantor that is not a corporation.
B-1
(ii) each Copyright License (as defined in the Security
Agreement) to which the Lien Grantor is a party, including, without
limitation, each Copyright License identified in Schedule 1 hereto; and
(iii) all proceeds of and revenues from, accounts and general
intangibles arising out of, the foregoing, including, without limitation, all
proceeds of and revenues from any claim by the Lien Grantor against third
parties for past, present or future infringement of any Copyright, including,
without limitation, any Copyright owned by the Lien Grantor referred to in
Schedule 1, and all rights and benefits of the Lien Grantor under any
Copyright License, including, without limitation, any Copyright License
identified in Schedule 1 hereto.
The Lien Grantor hereby irrevocably constitutes and appoints the
Grantee and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full power and authority in the name
of the Lien Grantor or in its name, from time to time, in the Grantee's
discretion, so long as any Event of Default shall have occurred and be
continuing, to take with respect to the Copyright Collateral any and all
appropriate action which the Lien Grantor might take with respect to the
Copyright Collateral and to execute any and all documents and instruments
which may be necessary or desirable to carry out the terms of this Copyright
Security Agreement and to accomplish the purposes hereof.
Except to the extent permitted in the Security Agreement or the
Credit Agreement, the Lien Grantor agrees not to sell, license, exchange,
assign or otherwise transfer or dispose of, or grant any rights with respect
to, or mortgage or otherwise encumber, any of the foregoing Copyright
Collateral.
The foregoing security interest is granted in conjunction with
the security interests granted by the Lien Grantor to the Grantee pursuant to
the Security Agreement. The Lien Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Grantee with respect to the security
interest in the Copyright Collateral granted hereby are more fully set forth in
the Security Agreement, the terms and provisions of which are incorporated by
reference herein as if fully set forth herein.
B-2
IN WITNESS WHEREOF, the Lien Grantor has caused this Copyright
Security Agreement to be duly executed by its officer thereunto duly
authorized as of the ____ day of _______, ____.
[NAME OF LIEN GRANTOR]
By:_______________________________
Title:
Acknowledged:
MELLON BANK, N.A.,
as Administrative Agent
By:____________________________
Title:
B-3
STATE OF ____________ )
) ss.:
COUNTY OF __________ )
I, ______________________, a Notary Public in and for said County,
in the State aforesaid, DO HEREBY CERTIFY, that _________________________,
_______________ of [NAME OF LIEN GRANTOR] (the "Company"), personally known to
me to be the same person whose name is subscribed to the foregoing instrument
as such _________________, appeared before me this day in person and
acknowledged that (s)he signed, executed and delivered the said instrument as
her/his own free and voluntary act and as the free and voluntary act of said
Company, for the uses and purposes therein set forth being duly authorized so
to do.
GIVEN under my hand and Notarial Seal this ___ day of
_______________, ____.
[Seal]
________________________________
Signature of notary public
My Commission expires __________
B-4
Schedule 1
to Copyright
Security Agreement
[NAME OF LIEN GRANTOR]
COPYRIGHT REGISTRATIONS
Registration Registration Expiration
No. Date Title Date
------------ ------------ ------- ----------
COPYRIGHT LICENSES
1
EXHIBIT C
to Security Agreement
PATENT SECURITY AGREEMENT
(Patents, Patent Applications and Patent Licenses)
WHEREAS, [Name of Lien Grantor], a _____________ corporation(1)
(herein referred to as the "Lien Grantor") owns, or in the case of licenses, is
a party to, the Patent Collateral (as defined below);
WHEREAS, pursuant to the terms of the Security Agreement dated
as of ________, 1998 (as such agreement may be amended from time to time, the
"Security Agreement") among Sybron Chemicals Inc., the Subsidiary Guarantors
party thereto and Mellon Bank, N.A., as Administrative Agent for the Secured
Parties referred to therein (in such capacity, together with its successors in
such capacity, the "Grantee"), the Lien Grantor has granted to the Grantee for
the benefit of such Secured Parties a continuing security interest in or other
Lien on substantially all the personal property of Lien Grantor (except
certain excluded property), including all right, title and interest of the
Lien Grantor in, to and under the Patent Collateral (as defined below),
whether now owned or existing or hereafter acquired or arising, to secure the
Secured Obligations (as defined in the Security Agreement) of the Lien Grantor;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Lien Grantor does hereby
grant to the Grantee, to secure the Secured Obligations of the Lien Grantor, a
continuing security interest in all of the Lien Grantor's right, title and
interest in, to and under the following (all of the following items or types
of property being herein collectively referred to as the "Patent Collateral"),
whether now owned or existing or hereafter acquired or arising:
(i) each Patent (as defined in the Security Agreement) owned
by the Lien Grantor, including, without limitation, each Patent referred to in
Schedule 1 hereto;
(ii) each Patent License (as defined in the Security
Agreement) to which the Lien Grantor is a party, including, without
limitation, each Patent License identified in Schedule 1 hereto; and
----------
(1) Modify as needed for any Lien Grantor that is not a corporation.
C-1
(iii) all proceeds of and revenues from the foregoing,
including, without limitation, all proceeds of and revenues from any claim by
the Lien Grantor against third parties for past, present or future
infringement of any Patent owned by the Lien Grantor, including, without
limitation, any Patent referred to in Schedule 1 hereto, and all rights and
benefits of the Lien Grantor under any Patent License, including, without
limitation, any Patent License identified in Schedule 1 hereto.
The Lien Grantor hereby irrevocably constitutes and appoints the
Grantee and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full power and authority in the name
of the Lien Grantor or in its name, from time to time, in the Grantee's
discretion, so long as an Event of Default shall have occurred and be
continuing to take with respect to the Patent Collateral any and all
appropriate action which the Lien Grantor might take with respect to the
Patent Collateral and to execute any and all documents and instruments which
may be necessary or desirable to carry out the terms of this Patent Security
Agreement and to accomplish the purposes hereof.
Except to the extent permitted in the Security Agreement or the
Credit Agreement, the Lien Grantor agrees not to sell, license, exchange,
assign or otherwise transfer or dispose of, or grant any rights with respect
to, or mortgage or otherwise encumber, any of the Patent Collateral.
The foregoing security interest is granted in conjunction with
the security interests granted by the Lien Grantor to the Grantee pursuant to
the Security Agreement. The Lien Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Grantee with respect to the security
interest in the Patent Collateral granted hereby are more fully set forth in
the Security Agreement, the terms and provisions of which are incorporated by
reference herein as if fully set forth herein.
C-2
IN WITNESS WHEREOF, the Lien Grantor has caused this Patent
Security Agreement to be duly executed by its officer thereunto duly
authorized as of the ____ day of ____________, ____.
[NAME OF LIEN GRANTOR]
By:_____________________________
Title:
Acknowledged:
MELLON BANK, N.A.,
as Administrative Agent
By:_________________________
Title:
C-3
STATE OF __________ )
) ss.:
COUNTY OF __________ )
I, ______________________, a Notary Public in and for said County,
in the State aforesaid, DO HEREBY CERTIFY, that _________________________,
_______________ of [NAME OF LIEN GRANTOR] (the "Company"), personally known to
me to be the same person whose name is subscribed to the foregoing instrument
as such _________________, appeared before me this day in person and
acknowledged that (s)he signed, executed and delivered the said instrument as
her/his own free and voluntary act and as the free and voluntary act of said
Company, for the uses and purposes therein set forth being duly authorized so
to do.
GIVEN under my hand and Notarial Seal this ___ day of
_______________, ____.
[Seal]
--------------------------------
Signature of notary public
My Commission expires __________
Schedule 1
to Patent
Security Agreement
[NAME OF LIEN GRANTOR]
PATENTS AND PATENT APPLICATIONS
Issue or Filing
Patent No. or Date or Expected
Country Serial No. Filing Date Inventor Title
--------- --------------- ------------------ ---------- -------
PATENT LICENSES
Effective Expiration Subject
Country Licensor Licensee Date Date Matter
-------- --------- --------- ---------- ---------- --------
1
EXHIBIT D
to Security Agreement
TRADEMARK SECURITY AGREEMENT
(Trademarks, Trademark Registrations, Trademark
Applications and Trademark Licenses)
WHEREAS, [Name of Lien Grantor], a _____________ corporation(1)
(herein referred to as the "Lien Grantor") owns, or in the case of licenses, is
a party to, the Trademark Collateral (as defined below);
WHEREAS, pursuant to the terms of the Security Agreement dated as
of ________, 1998 (as such agreement may be amended from time to time, the
"Security Agreement") among Sybron Chemicals Inc., the Subsidiary Guarantors
party thereto and Mellon Bank, N.A., as Administrative Agent for the Secured
Parties referred to therein (in such capacity, together with its successors in
such capacity, the "Grantee"), the Lien Grantor has granted to the Grantee for
the benefit of such Secured Parties a continuing security interest in or other
Lien on substantially all the personal property (except certain excluded
property) of the Lien Grantor, including all right, title and interest of Lien
Grantor in, to and under the Trademark Collateral (as defined below), whether
now owned or existing or hereafter acquired or arising, to secure the Secured
Obligations (as defined in the Security Agreement) of the Lien Grantor;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Lien Grantor does hereby
grant to the Grantee, to secure the Secured Obligations of the Lien Grantor, a
continuing security interest in all of the Lien Grantor's right, title and
interest in, to and under the following (all of the following items or types
of property being herein collectively referred to as the "Trademark
Collateral"), whether now owned or existing or hereafter acquired or arising:
(i) each Trademark (as defined in the Security Agreement)
owned by Lien Grantor, including, without limitation, each Trademark
registration and application referred to in Schedule 1 hereto, and all of the
goodwill of the business connected with the use of, or symbolized by, each
Trademark;
----------
(1) Modify as needed for any Lien Grantor that is not a corporation.
D-1
(ii) each Trademark License (as defined in the Security
Agreement) to which the Lien Grantor is a party, including, without
limitation, each Trademark License identified in Schedule 1 hereto, and all of
the goodwill of the business connected with the use of, or symbolized by, each
Trademark licensed pursuant thereto; and
(iii) all proceeds of and revenues from the foregoing,
including, without limitation, all proceeds of and revenues from any claim by
the Lien Grantor against third parties for past, present or future unfair
competition with, or violation of intellectual property rights in connection
with or injury to, or infringement or dilution of, any Trademark owned by the
Lien Grantor, including, without limitation, any Trademark referred to in
Schedule 1 hereto, and all rights and benefits of the Lien Grantor under any
Trademark License, including, without limitation, any Trademark License
identified in Schedule 1 hereto, or for injury to the goodwill associated with
any of the foregoing.
The Lien Grantor hereby irrevocably constitutes and appoints the
Grantee and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full power and authority in the name
of the Lien Grantor or in its name, from time to time, in the Grantee's
discretion, so long as any Event of Default shall have occurred and be
continuing, to take with respect to the Trademark Collateral any and all
appropriate action which the Lien Grantor might take with respect to the
Trademark Collateral and to execute any and all documents and instruments
which may be necessary or desirable to carry out the terms of this Trademark
Security Agreement and to accomplish the purposes hereof.
Except to the extent permitted in the Security Agreement or the
Credit Agreement, the Lien Grantor agrees not to sell, license, exchange,
assign or otherwise transfer or dispose of, or grant any rights with respect
to, or mortgage or otherwise encumber, any of the foregoing Trademark
Collateral.
The foregoing security interest is granted in conjunction with the
security interests granted by the Lien Grantor to the Grantee pursuant to the
Security Agreement. The Lien Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Grantee with respect to the security
interest in the Trademark Collateral granted hereby are more fully set forth in
the Security Agreement, the terms and provisions of which are incorporated by
reference herein as if fully set forth herein.
D-2
IN WITNESS WHEREOF, the Lien Grantor has caused this Trademark
Security Agreement to be duly executed by its officer thereunto duly
authorized as of the ____ day of __________, ____.
[NAME OF LIEN GRANTOR]
By:_____________________________
Title:
Acknowledged:
MELLON BANK, N.A.
as Administrative Agent
By:_________________________
Title:
D-3
STATE OF _____________ )
)ss.:
COUNTY OF ___________ )
I, ______________________, a Notary Public in and for said County,
in the State aforesaid, DO HEREBY CERTIFY, that _________________________,
_______________ of [NAME OF LIEN GRANTOR] (the "Company"), personally known to
me to be the same person whose name is subscribed to the foregoing instrument
as such _________________, appeared before me this day in person and
acknowledged that (s)he signed, executed and delivered the said instrument as
her/his own free and voluntary act and as the free and voluntary act of said
Company, for the uses and purposes therein set forth being duly authorized so
to do.
GIVEN under my hand and Notarial Seal this ___ day of
_______________, ____.
[Seal]
--------------------------------
Signature of notary public
My Commission expires __________
D-4
Schedule 1
to Trademark
Security Agreement
[NAME OF LIEN GRANTOR]
U.S. TRADEMARK REGISTRATIONS
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TRADEMARK REG. NO. REG. DATE
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U.S. TRADEMARK APPLICATIONS
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TRADEMARK REG. NO. REG. DATE
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1
EXCLUSIVE TRADEMARK LICENSES
Name of Parties Date of Subject
Agreement Licensor/Licensee Agreement Matter
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2
