EXHIBIT 10.5
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SECURITY AGREEMENT
among
MAPLE LEAF AEROSPACE, INC.,
AEROSPACE ACQUISITION CORP.,
TRI-STAR AEROSPACE, INC.
(as successor by merger to AEROSPACE MERGER SUB I, INC.),
TRI-STAR AEROSPACE CO.,
VARIOUS OTHER SUBSIDIARIES OF MAPLE LEAF
AEROSPACE, INC.,
and
BANKERS TRUST COMPANY,
as Collateral Agent
Dated as of September 19, 1996
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TABLE OF CONTENTS
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ARTICLE I SECURITY INTERESTS 3
1.1. Grant of Security Interests 3
1.2. Power of Attorney 4
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS 4
2.1. Necessary Filings 4
2.2. No Liens 4
2.3. Other Financing Statements 5
2.4. Chief Executive Office; Records 5
2.5. Location of Inventory and Equipment 6
2.6. Recourse 6
2.7. Trade Names; Change of Name 6
ARTICLE III SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS 7
3.1. Additional Representations and Warranties 7
3.2. Maintenance of Records 7
3.3. Direction to Account Debtors; Contracting Parties; etc. 8
3.4. Modification of Terms; etc. 8
3.5. Collection 8
3.6. Instruments 9
3.7. Further Actions 9
ARTICLE IV SPECIAL PROVISIONS CONCERNING TRADEMARKS 9
4.1. Additional Representations and Warranties 9
4.2. Licenses and Assignments 10
4.3. Infringements 10
4.4. Preservation of Marks 10
4.5. Maintenance of Registration 10
4.6. Future Registered Marks 11
4.7. Remedies 11
ARTICLE V SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS 12
5.1. Additional Representations and Warranties 12
5.2. Licenses and Assignments 12
5.3. Infringements 13
(ii)
5.4. Maintenance of Patents and Copyrights 13
5.5. Prosecution of Patent or Copyright Application 13
5.6. Other Patents and Copyrights 13
5.7. Remedies 13
ARTICLE VI PROVISIONS CONCERNING ALL COLLATERAL 14
6.1. Protection of Collateral Agent's Security 14
6.2. Warehouse Receipts Non-negotiable 14
6.3. Further Actions 15
6.4. Financing Statements 15
ARTICLE VII REMEDIES UPON OCCURRENCE OF EVENT OF
DEFAULT 15
7.1. Remedies; Obtaining the Collateral Upon Default 15
7.2. Remedies; Disposition of the Collateral 16
7.3. Waiver of Claims 17
7.4. Application of Proceeds 18
7.5. Remedies Cumulative 20
7.6. Discontinuance of Proceedings 21
ARTICLE VIII INDEMNITY 21
8.1. Indemnity 21
8.2. Indemnity Obligations Secured by Collateral; Survival 23
ARTICLE IX DEFINITIONS 23
ARTICLE X MISCELLANEOUS 28
10.1. Notices 28
10.2. Waiver; Amendment 29
10.3. Obligations Absolute 30
10.4. Successors and Assigns 30
10.5. Headings Descriptive 30
10.6. Governing Law 30
10.7. Assignor's Duties 30
10.8. Termination; Release 31
10.9. Counterparts 32
10.10. The Collateral Agent 32
10.11. Severability 32
10.12. Limited Obligations 32
10.13. Additional Assignors 32
ANNEX A Schedule of Chief Executive Offices/Record Locations
(ii)
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ANNEX B Schedule of Inventory and Equipment Locations
ANNEX C Schedule of Trade, Fictitious and Other Names
ANNEX D Schedule of Marks
ANNEX E Schedule of Patents and Applications
ANNEX F Schedule of Copyrights and Applications
ANNEX G Assignment of Security Interest in Patents and Trademarks
ANNEX H Assignment of Security Interest in Copyrights
(iii)
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of September 19, 1996 (as amended, modified
or supplemented from time to time, this "Agreement"), among each of the under-
signed assignors (each, an "Assignor" and, together with each other entity that
is required to execute a counterpart hereof pursuant to Section 10.13 hereof,
the "Assignors") and BANKERS TRUST COMPANY, as Collateral Agent (the
"Collateral Agent"), for the benefit of the Secured Creditors (as defined
below). Except as otherwise defined herein, terms used herein and defined in
the Credit Agreement (as defined below) shall be used herein as therein
defined.
WITNESSETH:
WHEREAS, Maple Leaf Aerospace. Inc. ("Parent"). Aerospace Acquisition
Corp. ("Holdings"), Tri-Star Aerospace, Inc. (as successor by merger to
Aerospace Merger Sub I, Inc.) ("Tri-Star Holdings"), Tri-Star Aerospace Co.
(the "Borrower"); various financial institutions from time to time party
thereto (the "Banks") and Bankers Trust Company, as Agent (the "Agent", and
together with the Banks and the Collateral Agent, the "Bank Creditors"), have
entered into a Credit Agreement, dated as of September 19, 1996, providing for
the making of Loans to the Borrower and the issuance of, and participation in,
Letters of Credit for the account of the Borrower as contemplated therein (as
used herein, the term "Credit Agreement" means the Credit Agreement described
above in this paragraph as amended, modified, extended, renewed, replaced,
restated, supplemented, restructured or refinanced from time to time, and
including any agreement extending the maturity of, refinancing or restructuring
(including, but not limited to, the inclusion of additional borrowers
thereunder or any increase in the amount borrowed) all, or any portion of, the
Indebtedness under such agreement or any successor agreements);
WHEREAS, any Assignor may from time to time enter into, or guaranty the
obligations of any other Assignor under, one or more (i) interest rate
protection agreements (including, without limitation, interest rate swaps,
caps, floors, collars and similar agreements), (ii) foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed
to protect against the fluctuations in currency values and/or (iii) other types
of hedging agreements from time to time (each such agreement or arrangement
with an Other Creditor (as hereinafter defined), an "Interest Rate Protection
Agreement or Other Hedging Agreement"), with any Bank, any affiliate thereof or
a syndicate of financial institutions organized by any such Bank or affiliate
(any such Bank
or affiliate (even if any such Bank ceases to be a Bank under the Credit
Agreement for any reason) and any such other institution that participates in
such Interest Rate Protection Agreements or Other Hedging Agreements and
their subsequent successors and assigns collectively, the "Other Creditors",
and together with the Bank Creditors, the "Secured Creditors");
WHEREAS, pursuant to Section 14 of the Credit Agreement, Parent, Holdings
and Tri-Star Holdings have provided a joint and several guaranty of the payment
when due of all obligations and liabilities of the Borrower under and in
connection with the Credit Documents and each Interest Rate Protection
Agreement or Other Hedging Agreement entered into with one or more Other
Creditors;
WHEREAS, pursuant to the Subsidiaries Guaranty, the Subsidiary Guarantors
have jointly and severally guaranteed the payment when due of all obligations
and liabilities of the Borrower under or with respect to the Credit Documents
and each Interest Rate Protection Agreement or Other Hedging Agreement entered
into with one or more Other Creditors;
WHEREAS, it is a condition precedent to the making of Loans to the
Borrower and the issuance of, and participation in, Letters of Credit for the
account of the Borrower under the Credit Agreement and to the Other Creditors
entering into Interest Rate Protection Agreements or Other Hedging Agreements
that each Assignor shall have executed and delivered to the Collateral Agent
this Agreement; and
WHEREAS, each Assignor desires to execute this Agreement to satisfy the
condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each
Assignor, the receipt and sufficiency of which are hereby acknowledged, each
Assignor hereby makes the following representations and warranties to the
Collateral Agent and hereby covenants and agrees with the Collateral Agent as
follows:
ARTICLE I
SECURITY INTERESTS
1.1. GRANT OF SECURITY INTERESTS. (a) As security for the prompt and
complete payment and performance when due of all Obligations of such Assignor,
each Assignor does hereby assign and transfer unto the Collateral Agent, and
does hereby pledge and grant to the Collateral Agent for the benefit of the
Secured Creditors, a continuing
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security interest of first priority in, all of the right, title and interest
of such Assignor in, to and under all of the following, whether now existing
or hereafter from time to time acquired:
(i) each and every Receivable;
(ii) all Contracts, together with all Contract Rights arising
thereunder;
(iii) all Inventory;
(iv) the Cash Collateral Account and any other cash collateral
account established for any Assignor and all moneys, securities and
instruments deposited or required to be deposited in such Cash Collateral
Account;
(v) all Equipment;
(vi) all Marks, together with the registrations and right to all
renewals thereof, and the goodwill of the business of such Assignor
symbolized by the Marks;
(vii) all Patents and Copyrights and all reissues, renewals and
extensions thereof;
(viii) all computer programs of such Assignor and all intellectual
property rights therein and all other proprietary information of such
Assignor, including, but not limited to, trade secrets and Trade Secret
Rights;
(ix) all insurance policies;
(x) all other Goods, General Intangibles. Chattel Paper, Documents
and Instruments and other assets of such Assignor (other than the Pledged
Securities); and
(xi) all Proceeds and products of any and all of the foregoing (all
of the above, collectively, the "Collateral").
(b) The security interest of the Collateral Agent under
this Agreement extends to all Collateral of the kind which is the subject of
this Agreement which any Assignor may acquire at any time during the
continuation of this Agreement.
1.2. POWER OF ATTORNEY. Each Assignor hereby constitutes
and appoints the Collateral Agent its true and lawful attorney, irrevocably,
with full power after the
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occurrence of and during the continuance of an Event of Default (in the name
of such Assignor or otherwise) to act, require, demand, receive, compound and
give acquittance for any and all monies and claims for monies due or to
become due to such Assignor under or arising out of the Collateral, to
endorse any checks or other instruments or orders in connection therewith and
to file any claims or take any action or institute any proceedings which the
Collateral Agent may deem to be necessary or advisable to accomplish the
purposes of this Agreement, which appointment as attorney is coupled with an
interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which representations,
warranties and covenants shall survive execution and delivery of this
Agreement, as follows:
2.1. NECESSARY FILINGS. All filings, registrations and recordings
necessary or appropriate to create, preserve, protect and perfect the security
interest granted by such Assignor to the Collateral Agent hereby in respect of
the Collateral have been accomplished and the security interest granted to the
Collateral Agent pursuant to this Agreement in and to the Collateral
constitutes a perfected security interest therein prior to the rights of all
other Persons therein and subject to no other Liens (other than Permitted
Liens) and is entitled to all the rights, priorities and benefits afforded by
the Uniform Commercial Code or other relevant law as enacted in any relevant
jurisdiction to perfected security interests.
2.2. NO LIENS. Such Assignor is, and as to Collateral acquired by it from
time to time after the date hereof such Assignor will be, the owner of all
Collateral free from any Lien, security interest, encumbrance or other right,
title or interest of any Person (other than Permitted Liens and Liens created
under this Agreement) and such Assignor shall defend the Collateral against all
claims and demands of all Persons at any time claiming the same or any interest
therein adverse to the Collateral Agent.
2.3. OTHER FINANCING STATEMENTS. As of the date hereof, there is no
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any interest of
any kind in the Collateral (other than (x) those created under this Agreement
and (y) as may be filed in connection with Liens permitted pursuant to Section
9.01(iii) of the Credit Agreement), and so long as the Total Commitment has not
been terminated or any Note or Letter of Credit remains outstanding or any of
the Obligations remain unpaid or any Interest Rate Protection Agreement or
Other Hedging Agreement remains in effect or any Obligations are owed with
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respect thereto, such Assignor will not execute or authorize to be filed in any
public office any financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) or statements relating to the
Collateral, except financing statements filed or to be filed in respect of and
covering the security interests granted hereby by such Assignor or as permitted
by the Credit Agreement.
2.4. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive office of such
Assignor is located at the address or addresses indicated on Annex A hereto.
Such Assignor will not move its chief executive office except to such new
location as such Assignor may establish in accordance with the last sentence of
this Section 2.4. The originals of all documents evidencing all Receivables
and Contract Rights and Trade Secret Rights of such Assignor and the only
original books of account and records of such Assignor relating thereto are,
and will continue to be, kept at such chief executive office or at such new
locations as such Assignor may establish in accordance with the last sentence
of this Section 2.4. All Receivables and Contract Rights and Trade Secret
Rights of such Assignor are, and will continue to be, maintained at, and
controlled and directed (including, without limitation, for general accounting
purposes) from, the office locations described above or such new location
established in accordance with the last sentence of this Section 2.4. No
Assignor shall establish new locations for such offices until (i) it shall have
given to the Collateral Agent not less than 30 days' prior written notice of
its intention to do so, clearly describing such new location and providing such
other information in connection therewith as the Collateral Agent may
reasonably request, (ii) with respect to such new location, it shall have taken
all action, satisfactory to the Collateral Agent, to maintain the security
interest of the Collateral Agent in the Collateral intended to be granted
hereby at all times fully perfected and in full force and effect, (iii) at the
request of the Collateral Agent, it shall have furnished an opinion of counsel
acceptable to the Collateral Agent to the effect that all financing or
continuation statements and amendments or supplements thereto have been filed
in the appropriate filing office or offices, and (iv) the Collateral Agent
shall have received evidence that all other actions (including, without
limitation, the payment of all filing fees and taxes, if any, payable in
connection with such filings) have been taken, in order to perfect (and
maintain the perfection and priority of) the security interest granted hereby.
2.5. LOCATION OF INVENTORY AND EQUIPMENT. All Inventory and Equipment
held on the date hereof by each Assignor is located at one of the locations
shown on Annex B hereto. Each Assignor agrees that all Inventory and Equipment
now held or subsequently acquired by it shall be kept at (or shall be in
transport to) any one of the locations shown on Annex B hereto, or such new
location as such Assignor may establish in accordance with the last sentence of
this Section 2.5, except as permitted to be sold in accordance with the terms
hereof and in the Credit Agreement. Any Assignor may establish a new location
for Inventory and Equipment only if (i) it shall have given to the Collateral
Agent not less than 30 days prior written notice of its intention so to do,
clearly
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describing such new location and providing such other information in
connection therewith as the Collateral Agent may reasonably request, (ii)
with respect to such new location, it shall have taken all action
satisfactory to the Collateral Agent to maintain the security interest of the
Collateral Agent in the Collateral intended to be granted hereby at all times
fully perfected and in full force and effect, (iii) at the request of the
Collateral Agent, it shall have furnished an opinion of counsel acceptable to
the Collateral Agent to the effect that all financing or continuation
statements and amendments or supplements thereto have been filed in the
appropriate filing office or offices, and (iv) the Collateral Agent shall
have received evidence that all other actions (including, without limitation,
the payment of all filing fees and taxes, if any, payable in connection with
such filings) have been taken, in order to perfect (and maintain the
perfection and priority of) the security interest granted hereby.
2.6. RECOURSE. This Agreement is made with full recourse to each Assignor
and pursuant to and upon all the warranties, representations, covenants and
agreements on the part of such Assignor contained herein, in the other Credit
Documents, in the Interest Rate Protection Agreements or Other Hedging
Agreements and otherwise in writing in connection herewith or therewith.
2.7. TRADE NAMES; CHANGE OF NAME. No Assignor has or operates in any
jurisdiction under, or previously has had or has operated in any jurisdiction
within the five year period preceding the date of this Agreement under, any
trade names, fictitious names or other names except its legal name and such
other trade or fictitious names as are listed on Annex C hereto. No Assignor
shall change its legal name or assume or operate in any jurisdiction under any
trade, fictitious or other name except those names listed on Annex C hereto in
the jurisdictions listed with respect to such names and new names (including,
without limitation, any names of divisions or operations) and/or jurisdictions
established in accordance with the last sentence of this Section 2.7. No
Assignor shall assume or operate in any jurisdiction under any new trade,
fictitious or other name or operate under any existing name in any additional
jurisdiction until (i) it shall have given to the Collateral Agent not less
than 30 days' prior written notice of its intention so to do, clearly
describing such new name and/or jurisdiction and, in the case of a new name,
the jurisdictions in which such new name shall be used and providing such other
information in connection therewith as the Collateral Agent may reasonably
request, (ii) with respect to such new name and/or jurisdiction, it shall have
taken all action to maintain the security interest of the Collateral Agent in
the Collateral intended to be granted hereby at all times fully perfected and
in full force and effect, (iii) at the request of the Collateral Agent, it
shall have furnished an opinion of counsel acceptable to the Collateral Agent
to the effect that all financing or continuation statements and amendments or
supplements thereto have been filed in the appropriate filing office or
offices, and (iv) the Collateral Agent shall have received evidence that all
other actions (including, without limitation, the payment of all filing fees
and taxes, if any, payable in connection with such filings) have been taken, in
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order to perfect (and maintain the perfection and priority of) the security
interest granted hereby.
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS
3.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. As of the time when each
of its Receivables arises, each Assignor shall be deemed to have represented
and warranted that such Receivable, and all records, papers and documents
relating thereto (if any) are genuine and in all respects what they purport to
be, and that all papers and documents (if any) relating thereto (i) will
represent the genuine legal, valid and binding obligation of the account debtor
evidencing indebtedness unpaid and owed by the respective account debtor
arising out of the performance of labor or services or the sale or lease and
delivery of the inventory, materials, equipment or merchandise listed therein,
or both, (ii) will be the only original writings evidencing and embodying such
obligation of the account debtor named therein (other than copies created for
general accounting purposes), (iii) will evidence true and valid obligations,
enforceable in accordance with their respective terms and (iv) will be in
compliance and will conform in all material respects with all applicable
federal, state and local laws and applicable laws of any relevant foreign
jurisdiction.
3.2. MAINTENANCE OF RECORDS. Each Assignor will keep and maintain at its
own cost and expense satisfactory and complete records of its Receivables and
Contracts, including, but not limited to, originals or copies of all
documentation (including each Contract) with respect thereto, records of all
payments received, all credits granted thereon, all merchandise returned and
all other dealings therewith, and such Assignor will make the same available on
such Assignor's premises to the Collateral Agent for inspection, at such
Assignor's own cost and expense, at any and all reasonable times and intervals
as the Collateral Agent may request. Upon the occurrence and during the
continuance of an Event of Default and at the request of the Collateral Agent,
such Assignor shall, at its own cost and expense, deliver all tangible evidence
of its Receivables and Contract Rights (including, without limitation, all
documents evidencing the Receivables and all Contracts) and such books and
records to the Collateral Agent or to its representatives (copies of which
evidence and books and records may be retained by such Assignor). If the
Collateral Agent so directs, such Assignor shall legend, in form and manner
satisfactory to the Collateral Agent, the Receivables and the Contracts, as
well as books, records and documents of such Assignor evidencing or pertaining
to such Receivables and Contracts with an appropriate reference to the fact
that such Receivables and Contracts have been assigned to the Collateral Agent
and that the Collateral Agent has a security interest therein.
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3.3. DIRECTION TO ACCOUNT DEBTORS; CONTRACTING PARTIES; ETC. Upon the
occurrence and during the continuance of an Event of Default, and if the
Collateral Agent so directs any Assignor, such Assignor agrees (x) to cause
all payments on account of the Receivables and Contracts to be made directly
to the Cash Collateral Account, (y) that the Collateral Agent may, at its
option, directly notify the obligors with respect to any Receivables and/or
under any Contracts to make payments with respect thereto as provided in
preceding clause (x), and (z) that the Collateral Agent may enforce
collection of any such Receivables and Contracts and may adjust, settle or
compromise the amount of payment thereof, in the same manner and to the same
extent as such Assignor. Without notice to or assent by any Assignor, the
Collateral Agent may apply any or all amounts then in, or thereafter
deposited in, the Cash Collateral Account which application shall be effected
in the manner provided in Section 7.4 of this Agreement. The costs and
expenses (including attorneys' fees) of collection, whether incurred by the
Assignor or the Collateral Agent, shall be borne by the relevant Assignor.
3.4. MODIFICATION OF TERMS; ETC. No Assignor shall rescind or cancel any
indebtedness evidenced by any Receivable or under any Contract, or modify any
term thereof or make any adjustment with respect thereto, or extend or renew
the same, or compromise or settle any material dispute, claim, suit or legal
proceeding relating thereto, or sell any Receivable or Contract, or interest
therein, without the prior written consent of the Collateral Agent, except as
permitted by Section 3.5. Each Assignor will duly fulfill all obligations on
its part to be fulfilled under or in connection with the Receivables and
Contracts and will do nothing to impair the rights of the Collateral Agent in
the Receivables or Contracts.
3.5. COLLECTION. Each Assignor shall endeavor to cause to be collected
from the account debtor named in each of its Receivables or obligor under any
Contract, as and when due (including, without limitation, amounts, services or
products which are delinquent, such amounts, services or products to be
collected in accordance with generally accepted lawful collection procedures)
any and all amounts, services or products owing under or on account of such
Receivable or Contract, and apply forthwith upon receipt thereof all such
amounts, services or products as are so collected to the outstanding balance of
such Receivable or under such Contract, except that, prior to the occurrence of
an Event of Default, any Assignor may allow in the ordinary course of business
as adjustments to amounts, services or products owing under its Receivables and
Contracts (i) an extension or renewal of the time or times of payment or
exchange, or settlement for less than the total unpaid balance, which such
Assignor finds appropriate in accordance with reasonable business judgment and
(ii) a refund or credit due as a result of returned or damaged merchandise or
improperly performed services. The costs and expenses (including, without
limitation, attorneys' fees) of collection, whether incurred by an Assignor or
the Collateral Agent, shall be borne by the relevant Assignor.
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3.6. INSTRUMENTS. If any Assignor owns or acquires any Instrument
constituting Collateral, such Assignor will within 10 days notify the
Collateral Agent thereof, and upon request by the Collateral Agent will
promptly deliver such Instrument to the Collateral Agent appropriately endorsed
to the order of the Collateral Agent as further security hereunder.
3.7. FURTHER ACTIONS. Each Assignor will, at its own expense, make,
execute, endorse. acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to its Receivables, Contracts, Instruments and other property or
rights covered by the security interest hereby granted, as the Collateral Agent
may require.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Each Assignor represents
and warrants that it is the true, lawful, sole and exclusive owner of the Marks
listed in Annex D hereto and that said listed Marks constitute all the Marks
that such Assignor presently owns or uses in connection with its business and
include all the United States federal registrations or applications registered
in the United States Patent and Trademark Office. Each Assignor represents and
warrants that it owns all Marks that it uses. Each Assignor further warrants
that it has no knowledge as of the date hereof, of any third party claim that
any aspect of such Assignor's present or contemplated business operations
infringes or will infringe any rights in any trademark, service ▇▇▇▇ or trade
name. Each Assignor represents and warrants that it is the beneficial and
record owner of all trademark registrations and applications listed in Annex D
hereto and that said registrations are valid, subsisting and have not been
cancelled and that such Assignor is not aware of any third-party claim that
any of said registrations is invalid or unenforceable, or that there is any
reason that any of said applications will not pass to registration. Each
Assignor represents and warrants that upon the recordation of an Assignment of
Security Interest in United States Trademarks and Patents in the form of Annex
G hereto in the United States Patent and Trademark Office, together with
filings on Form UCC-1 pursuant to this Agreement, all filings, registrations
and recordings necessary or appropriate to perfect the security interest
granted to the Collateral Agent in the United States Marks covered by this
Agreement under federal law will have been accomplished. Each Assignor agrees
to execute such an Assignment of Security Interest in United States Trademark
and Patents covering all right, title and interest in each United States ▇▇▇▇,
and the associated goodwill, of such Assignor, and to record the same. Each
Assignor hereby grants to the Collateral
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Agent an absolute power of attorney to sign, upon the occurrence and during
the continuance of an Event of Default, any document which may be required by
the U.S. Patent and Trademark Office or secretary of state or equivalent
governmental agency of any State of the United States or any foreign
jurisdiction in order to effect an absolute assignment of all right, title
and interest in each ▇▇▇▇, and record the same.
4.2. LICENSES AND ASSIGNMENTS. Each Assignor hereby agrees not to divest
itself of any right under any ▇▇▇▇ which, in the good faith judgment of
management, is useful or valuable to its business, absent prior written
approval of the Collateral Agent, except as otherwise permitted by this
Agreement or the Credit Agreement.
4.3. INFRINGEMENTS. Each Assignor agrees, promptly upon learning thereof,
to notify the Collateral Agent in writing of the name and address of, and to
furnish such pertinent information that may be available with respect to, (i)
any party who such Assignor believes is infringing or diluting or otherwise
violating in any respect any of such Assignor's rights in and to any ▇▇▇▇, or
(ii) with respect to any party claiming that such Assignor's use of any ▇▇▇▇
violates in any material respect any property right of that party. Each
Assignor further agrees, unless otherwise agreed by the Collateral Agent,
diligently to prosecute any Person infringing any ▇▇▇▇.
4.4. PRESERVATION OF MARKS. Each Assignor agrees to use all its Marks
which, in the good faith judgment of management, is useful or valuable to its
business, in interstate or foreign commerce, as the case may be, during the
time in which this Agreement is in effect, sufficiently to preserve such Marks
as valid and subsisting trademarks or service marks under the laws of the
United States or the relevant foreign jurisdiction.
4.5. MAINTENANCE OF REGISTRATION. Each Assignor shall, at its own expense,
diligently process all documents required by the Trademark Act of 1946, as
amended, 15 U.S.C. Sections 1051 ET SEQ. to maintain trademark registrations,
including but not limited to affidavits of continued use and applications for
renewals of registration in the United States Patent and Trademark Office for
all of its registered Marks pursuant to 15 U.S.C. Sections 1058, 1059 and 1065
and any foreign equivalent thereof, and shall pay all fees and disbursements in
connection therewith and shall not abandon any such filing of affidavit of use
or any such application of renewal prior to the exhaustion of all
administrative and judicial remedies without prior written consent of the
Collateral Agent. Each Assignor agrees to notify the Collateral Agent at least
two (2) months prior to the dates on which the affidavits of use or the
applications for renewal registration are due with respect to any registered
▇▇▇▇ that the affidavits of use or the renewal is being processed.
4.6. FUTURE REGISTERED MARKS. If any registration for any ▇▇▇▇ issues
hereafter to any Assignor as a result of any application now or hereafter
pending before the
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇ Patent and Trademark Office, within 30 days of receipt of such
certificate, such Assignor shall deliver to the Collateral Agent a copy of
such certificate, and an assignment for security in such ▇▇▇▇, to the
Collateral Agent and at the expense of such Assignor, confirming the
assignment for security in such ▇▇▇▇ to the Collateral Agent hereunder, the
form of such security to be substantially the same as the form hereof or in
such other form as may be satisfactory to the Collateral Agent.
4.7. REMEDIES. If an Event of Default shall occur and be continuing, the
Collateral Agent may, by written notice to the relevant Assignor, take any or
all of the following actions: (i) declare the entire right, title and interest
of such Assignor in and to each of the Marks, together with all trademark
rights and rights of protection to the same and the goodwill of such Assignor's
business symbolized by said Marks and the right to recover for post
infringements thereof, vested in the Collateral Agent for the benefit of the
Secured Creditors, in which event such rights, title and interest shall
immediately vest, in the Collateral Agent for the benefit of the Secured
Creditors, and the Collateral Agent shall be entitled to exercise the power of
attorney referred to in Section 4.1 hereof to execute, cause to be
acknowledged and notarized and to record said absolute assignment with the
applicable agency; (ii) take and use or sell the Marks and the goodwill of such
Assignor's business symbolized by the Marks and the right to carry on the
business and use the assets of such Assignor in connection with which the Marks
have been used; and (iii) direct such Assignor to refrain, in which event such
Assignor shall refrain, from using the Marks in any manner whatsoever, directly
or indirectly, and, if requested by the Collateral Agent, change such
Assignor's corporate name to eliminate therefrom any use of any ▇▇▇▇ and
execute such other and further documents that the Collateral Agent may request
to further confirm this and to transfer ownership of the Marks and
registrations and any pending trademark applications therefor in the United
States Patent and Trademark Office or any equivalent government agency or
office in any foreign jurisdiction to the Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Each Assignor represents
and warrants that it is the true and lawful exclusive owner of all rights in
(i) all trade secrets and proprietary information necessary to operate the
business of such Assignor (the "Trade Secret Rights"), (ii) the Patents listed
in Annex E hereto and (iii) the Copyrights listed in Annex F hereto, that said
Patents constitute all the patents and applications for patents that such
Assignor now owns and that are necessary in the conduct of the business of such
Assignor and that said Copyrights constitute all registrations of copyrights
and applications for copyright registrations that the Assignor now owns and
that are necessary
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in the conduct of the business of such Assignor. Each Assignor further
represents and warrants that it has the exclusive right to use and practice
under all Patents and Copyrights that it owns, uses or practices under and
has the exclusive right to exclude others from using or practicing under any
Patents its owns, uses or practices under. Each Assignor further warrants
that, as of the date hereof, it has no knowledge of any third party claim
that any aspect of such Assignor's present or contemplated business
operations infringes or will infringe any rights in any patent or copyright
or such Assignor has misappropriated any trade secret or proprietary
information. Each Assignor represents and warrants that upon the recordation
of an Assignment of Security interest in United States Trademarks and Patents
in the form of Annex G hereto in the United States Patent and Trademark
Office and the recordation of an Assignment of Security interest in United
States Copyrights in the form of Annex H hereto in the United States
Copyright Office, together with filings on Form UCC-1 pursuant to this
Agreement, all filings, registrations and recordings necessary or appropriate
to perfect the security interest granted to the Collateral Agent in the
United States Patents and United States Copyrights covered by this Agreement
under federal law will have been accomplished. Each Assignor agrees to
execute such an Assignment of Security interest in United States Trademarks
and Patents covering all right, title and interest in each United States
Patent of such Assignor and to record the same, and to execute such an
Assignment of Security interest in United States Copyrights covering all
right, title and interest in each United States Copyright of such Assignor
and to record the same. Each Assignor hereby grants to the Collateral Agent
an absolute power of attorney to sign, upon the occurrence and during the
continuance of any Event of Default, any document which may be required by
the U.S. Patent and Trademark Office or equivalent governmental agency in any
foreign jurisdiction or the U.S. Copyright Office or equivalent governmental
agency in any foreign jurisdiction in order to effect an absolute assignment
of all right, title and interest in each Patent and Copyright, and to record
the same.
5.2. LICENSES AND ASSIGNMENTS. Each Assignor hereby agrees not to divest
itself of any right under any Patent or Copyright which, in the good faith
judgment of management, is useful or valuable to its business absent prior
written approval of the Collateral Agent, except as otherwise permitted by this
Agreement or the Credit Agreement.
5.3. INFRINGEMENTS. Each Assignor agrees, promptly upon learning thereof,
to furnish the Collateral Agent in writing with all pertinent information
available to such Assignor with respect to infringement, contributing
infringement or active inducement to infringe in any Patent or Copyright or to
any claim that the practice of any Patent or the use of any Copyright violates
any property right of a third party, or with respect to any misappropriation of
any Trade Secret Right or any claim that practice of any Trade Secret Right
violates any property right of a third party. Each Assignor further agrees,
absent direction of the Collateral Agent to the contrary, diligently to
prosecute any Person infringing any Patent or Copyright or any Person
misappropriating any Trade Secret Right.
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5.4. MAINTENANCE OF PATENTS AND COPYRIGHTS. At its own expense, each
Assignor shall make timely payment of all post-issuance fees required pursuant
to 35 U.S.C. Section 41 and any foreign equivalent thereof to maintain in force
rights under each Patent, and to apply as permitted pursuant to applicable law
for any renewal of each Copyright absent prior written consent of the
Collateral Agent.
5.5. PROSECUTION OF PATENT OR COPYRIGHT APPLICATION. At its own expense,
each Assignor shall diligently prosecute all applications for Patents listed in
Annex E hereto and for Copyrights listed in Annex F hereto and shall not
abandon any such application prior to exhaustion of all administrative and
judicial remedies, absent written consent of the Collateral Agent.
5.6. OTHER PATENTS AND COPYRIGHTS. Within 30 days of the acquisition or
issuance of a Patent or of a Copyright registration, or of filing of an
application for a Patent or Copyright registration, the relevant Assignor shall
deliver to the Collateral Agent a copy of said Copyright registration or Patent
or certificate or registration of, or application therefor, as the case may be,
with an assignment for security as to such Patent or Copyright, as the case may
be, to the Collateral Agent and at the expense of such Assignor, confirming the
assignment for security, the form of such assignment for security to be
substantially the same as the form hereof or in such other form as may be
satisfactory to the Collateral Agent.
5.7. REMEDIES. If an Event of Default shall occur and be continuing, the
Collateral Agent may by written notice to the relevant Assignor, take any or
all of the following actions: (i) declare the entire right, title, and interest
of such Assignor in each of the Patents and Copyrights vested in the Collateral
Agent for the benefit of the Secured Creditors, in which event such right,
title, and interest shall immediately vest in the Collateral Agent for the
benefit of the Secured Creditors, in which case the Collateral Agent shall be
entitled to exercise the power of attorney referred to in Section 5.1 hereof
to execute, cause to be acknowledged and notarized and to record said absolute
assignment with the applicable agency; (ii) take and practice or sell the
Patents, Copyrights and Trade Secret Rights; and (iii) direct such Assignor to
refrain, in which event such Assignor shall refrain, from practicing the
Patents and using the Copyrights and/or Trade Secret Rights directly or
indirectly, and such Assignor shall execute such other and further documents as
the Collateral Agent may request further to confirm this and to transfer
ownership of the Patents, Copyrights and Trade Secret Rights to the Collateral
Agent for the benefit of the Secured Creditors.
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ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1. PROTECTION OF COLLATERAL AGENT'S SECURITY. Each Assignor will do
nothing to impair the rights of the Collateral Agent in the Collateral. Each
Assignor will at all times keep its Inventory and Equipment insured in favor of
the Collateral Agent, at such Assignor's own expense to the extent and in the
manner provided in the Credit Agreement; all policies or certificates with
respect to such insurance (and any other insurance maintained by such
Assignor); (i) shall be endorsed to the Collateral Agent's satisfaction for the
benefit of the Collateral Agent (including, without limitation, by naming the
Collateral Agent as loss payee and naming the Collateral Agent as an additional
insured); (ii) shall state that such insurance policies shall not be cancelled
or materially revised without 30 days' prior written notice thereof by the
insurer to the Collateral Agent; and (iii) certified copies of such policies or
certificates shall be deposited with the Collateral Agent. If any Assignor
shall fail to insure its Inventory and Equipment in accordance with the
preceding sentence, or if any Assignor shall fail to so endorse and deposit all
policies or certificates with respect thereto, the Collateral Agent shall have
the right (but shall be under no obligation) to procure such insurance and such
Assignor agrees to promptly reimburse the Collateral Agent for all costs and
expenses of procuring such insurance. The Collateral Agent shall, at the time
such proceeds of such insurance are distributed to the Secured Creditors, apply
such proceeds in accordance with Section 7.4 hereof. Each Assignor assumes all
liability and responsibility in connection with the Collateral acquired by it
and the liability of such Assignor to pay the Obligations shall in no way be
affected or diminished by reason of the fact that such Collateral may be lost,
destroyed, stolen, damaged or for any reason whatsoever unavailable to such
Assignor.
6.2. WAREHOUSE RECEIPTS NON-NEGOTIABLE. Each Assignor agrees that if any
warehouse receipt or receipt in the nature of a warehouse receipt is issued
with respect to any of its Inventory, such warehouse receipt or receipt in the
nature thereof shall not be "negotiable" (as such term is used in Section 7-104
of the Uniform Commercial Code as in effect in any relevant jurisdiction or
under other relevant law).
6.3. FURTHER ACTIONS. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers
of attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted, which the Collateral Agent
deems reasonably appropriate or advisable to perfect, preserve or protect its
security interest in the Collateral,
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including, without limitation, any Collateral which previously constituted
Excluded Collateral.
6.4. FINANCING STATEMENTS. Each Assignor agrees to execute and deliver to
the Collateral Agent such financing statements, in form acceptable to the
Collateral Agent, as the Collateral Agent may from time to time request or as
are necessary or desirable in the opinion of the Collateral Agent to establish
and maintain a valid, enforceable, first priority perfected security interest
in the Collateral as provided herein and the other rights and security
contemplated hereby all in accordance with the Uniform Commercial Code as
enacted in any and all relevant jurisdictions or any other relevant law. Each
Assignor will pay any applicable filing fees, recordation taxes and related
expenses relating to its Collateral. Each Assignor hereby authorizes the
Collateral Agent to file any such financing statements without the signature of
such Assignor where permitted by law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. REMEDIES; OBTAINING THE COLLATERAL UPON DEFAULT. Each Assignor
agrees that, if any Event of Default shall have occurred and be continuing,
then and in every such case, the Collateral Agent, in addition to any rights
now or hereafter existing under applicable law, shall have all rights as a
secured creditor under the Uniform Commercial Code in all relevant
jurisdictions and may also:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or
any other Person who then has possession of any part thereof with or
without notice or process of law, and for that purpose may enter upon such
Assignor's premises where any of the Collateral is located and remove the
same and use in connection with such removal any and all services,
supplies, aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument
or other obligation (including, without limitation, the Receivables and
the Contracts) constituting the Collateral to make any payment required by
the terms of such agreement, instrument or other obligation directly to
the Collateral Agent;
(iii) withdraw all monies, securities and instruments in the Cash
Collateral Account for application to the Obligations in accordance with
Section 7.4 hereof;
(iv) sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof in accordance with Section 7.2 hereof, or
direct the relevant Assignor
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to sell, assign or otherwise liquidate any or all of the Collateral or
any part thereof, and, in each case, take possession of the proceeds of
any such sale or liquidation;
(v) take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to deliver the same to the
Collateral Agent at any place or places designated by the Collateral
Agent, in which event such Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place
or places so designated by the Collateral Agent and there
delivered to the Collateral Agent;
(y) store and keep any Collateral so delivered to the
Collateral Agent at such place or places pending further
action by the Collateral Agent as provided in Section 7.2
hereof; and
(z) while the Collateral shall be so stored and kept,
provide such guards and maintenance services as shall be
necessary to protect the same and to preserve and maintain
them in good condition; and
(vi) license or sublicense, whether on an exclusive or nonexclusive
basis, any Marks, Patents or Copyrights included in the Collateral for
such term and on such conditions and in such manner as the Collateral
Agent shall in its sole judgment determine;
it being understood that each Assignor's obligation so to deliver the
Collateral is of the essence of this Agreement and that, accordingly, upon
application to a court of equity having jurisdiction, the Collateral Agent
shall be entitled to a decree requiring specific performance by such Assignor
of said obligation.
7.2. REMEDIES; DISPOSITION OF THE COLLATERAL. Any Collateral repossessed
by the Collateral Agent under or pursuant to Section 7.1 hereof and any other
Collateral whether or not so repossessed by the Collateral Agent, may be sold,
assigned, leased or otherwise disposed of under one or more contracts or as an
entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at
such place or places and on such terms as the Collateral Agent may, in
compliance with any mandatory requirements of applicable law, determine to be
commercially reasonable. Any of the Collateral may be sold, leased or otherwise
disposed of, in the condition in which the same existed when taken by the
Collateral Agent or after any overhaul or repair at the expense of the relevant
Assignor which the Collateral Agent shall determine to be commercially
reasonable. Any such disposition which shall be a private sale or other
private proceedings permitted by such requirements shall be made upon
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not less than 10 days' written notice to the relevant Assignor specifying the
time at which such disposition is to be made and the intended sale price or
other consideration therefor, and shall be subject, for the 10 days after the
giving of such notice, to the right of the relevant Assignor or any nominee of
such Assignor to acquire the Collateral involved at a price or for such other
consideration at least equal to the intended sale price or other consideration
so specified. Any such disposition which shall be a public sale permitted by
such requirements shall be made upon not less than 10 days' written notice to
the relevant Assignor specifying the time and place of such sale and, in the
absence of applicable requirements of law, shall be by public auction (which
may, at the Collateral Agent's option, be subject to reserve), after
publication of notice of such auction not less than 10 days prior thereto in
two newspapers in general circulation to be selected by the Collateral Agent.
To the extent permitted by any such requirement of law, the Collateral Agent
may bid for and become the purchaser of the Collateral or any item thereof,
offered for sale in accordance with this Section without accountability to the
relevant Assignor. If, under mandatory requirements of applicable law, the
Collateral Agent shall be required to make disposition of the Collateral
within a period of time which does not permit the giving of notice to the
relevant Assignor as hereinabove specified, the Collateral Agent need give
such Assignor only such notice of disposition as shall be reasonably
practicable in view of such mandatory requirements of applicable law. Each
Assignor agrees to do or cause to be done all such other acts and things as
may be reasonably necessary to make such sale or sales of all or any portion
of the Collateral of such Assignor valid and binding and in compliance with
any and all applicable laws, regulations, orders, writs, injunctions, decrees
or awards of any and all courts, arbitrations or governmental
instrumentalities, domestic or foreign, having jurisdiction over any such sale
or sales, all at such Assignor's expense.
7.3. WAIVER OF CLAIMS. Except as otherwise provided in this Agreement.
EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE
AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S TAKING
POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE COLLATERAL,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY
PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH SUCH ASSIGNOR WOULD
OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF
ANY STATE, and such Assignor hereby further waives, to the extent permitted by
law:
(i) all damages occasioned by such taking of possession except any
damages which are the direct result of the Collateral Agent's gross
negligence or willful misconduct;
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(ii) all other requirements as to the time, place and terms of sale
or other requirements with respect to the enforcement of the Collateral
Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay.
extension or moratorium now or hereafter in force under any applicable law
in order to prevent or delay the enforcement of this Agreement or the
absolute sale of the Collateral or any portion thereof, and each Assignor,
for itself and all who may claim under it, insofar as it or they now or
hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization
upon, any Collateral shall operate to divest all right, title, interest, claim
and demand, either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against such
Assignor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from,
through and under such Assignor.
7.4. APPLICATION OF PROCEEDS. (a) All moneys collected by the Collateral
Agent upon any sale or other disposition of the Collateral (or, to the extent
the Pledge Agreement or Mortgages require proceeds of collateral thereunder to
be applied in accordance with the provisions of this Agreement, the Pledgee or
Mortgagee under such other Security Documents), together with all other moneys
received by the Collateral Agent hereunder, shall be applied as follows:
(i) first, to the payment of all Obligations owing the Collateral
Agent of the type described in clauses (iii) and (iv) of the definition of
"Obligations";
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Primary Obligations shall be paid to the Secured Creditors as provided in
Section 7.4(e) hereof, with each Secured Creditor receiving an amount
equal to its outstanding Primary Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations, its Pro Rata
Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Secondary Obligations shall be paid to the Secured Creditors
as provided in Section 7.4(e) hereof, with each Secured Creditor receiving
an amount equal to its outstanding Secondary Obligations or, if the
proceeds are insufficient to pay in full all such Secondary Obligations.
its Pro Rata Share of the amount remaining to be distributed; and
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(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, and
following the termination of this Agreement pursuant to Section 10.8(a)
hereof, to the relevant Assignor or to whomever may be lawfully entitled
to receive such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall
mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentages equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's Primary
Obligations or Secondary Obligations, as the case may be, and the denominator
of which is the then outstanding amount of all Primary Obligations or Secondary
Obligations, as the case may be, (y) "Primary Obligations" shall mean (i) in
the case of the Credit Document Obligations, all principal of, and interest on,
all Loans under the Credit Agreement, all Unpaid Drawings theretofore made
(together with all interest accrued thereon), the aggregate Stated Amounts of
all Letters of Credit issued (or deemed issued) under the Credit Agreement, and
all Fees and (ii) in the case of the Other Obligations, all amounts due under
the Interest Rate Protection Agreements or Other Hedging Agreements (other than
indemnities, fees (including, without limitation, attorneys fees) and similar
obligations and liabilities) and (z) "Secondary Obligations" shall mean all
Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 7.4 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Creditors, with each Secured Creditor whose Primary Obligations
or Secondary Obligations, as the case may be, have not been paid in full to
receive an amount equal to such excess amount multiplied by a fraction the
numerator of which is the unpaid Primary Obligations or Secondary Obligations,
as the case may be, of such Secured Creditor and the denominator of which is
the unpaid Primary Obligations or Secondary Obligations, as the case may be, of
all Secured Creditors entitled to such distribution.
(d) Each of the Secured Creditors agrees and acknowledges that if
the Bank Creditors are to receive a distribution on account of undrawn amounts
with respect to Letters of Credit issued (or deemed issued) under the Credit
Agreement (which shall only occur after all outstanding Loans and Unpaid
Drawings with respect to such Letters of Credit have been paid in full), such
amounts shall be paid to the Agent under the Credit Agreement and held by it,
for the equal and ratable benefit of the Bank Creditors, as cash security for
the repayment of Obligations owing to the Bank Creditors as such. If any
amounts are held as cash security pursuant to the immediately preceding
sentence, then
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upon the termination of all outstanding Letters of Credit, and after the
application of all such cash security to the repayment of all Obligations
owing to the Bank Creditors after giving effect to the termination of all such
Letters of Credit, if there remains any excess cash, such excess cash shall be
returned by the Agent to the Collateral Agent for distribution in accordance
with Section 7.4(a) hereof.
(e) Except as set forth in Section 7.4(d) hereof, all payments
required to be made hereunder shall be made (x) if to the Bank Creditors, to
the Agent under the Credit Agreement for the account of the Bank Creditors, and
(y) if to the Other Creditors, to the trustee, paying agent or other similar
representative (each, a "Representative") for the Other Creditors or, in the
absence of such a Representative, directly to the Other Creditors.
(f) For purposes of applying payments received in accordance with
this Section 7.4, the Collateral Agent shall be entitled to rely upon (i) the
Agent under the Credit Agreement and (ii) the Representative for the Other
Creditors or, in the absence of such a Representative, upon the Other Creditors
for a determination (which the Agent, each Representative for any Other
Creditors and the Secured Creditors agree (or shall agree) to provide upon
request of the Collateral Agent) of the outstanding Primary Obligations and
Secondary Obligations owed to the Bank Creditors or the Other Creditors, as the
case may be. Unless it has actual knowledge (including by way of written notice
from a Bank Creditor or an Other Creditor) to the contrary, the Agent and each
Representative, in furnishing information pursuant to the preceding sentence,
and the Collateral Agent, in acting hereunder, shall be entitled to assume that
no Secondary Obligations are outstanding. Unless it has actual knowledge
(including by way of written notice from an Other Creditor) to the contrary,
the Collateral Agent, in acting hereunder, shall be entitled to assume that no
Interest Rate Protection Agreements or Other Hedging Agreements are in
existence.
(g) It is understood and agreed that each of the Assignors shall
remain jointly and severally liable to the extent of any deficiency between the
amount of the proceeds of the Collateral hereunder and the aggregate amount of
the sums referred to in clause (a) of this Section with respect to the relevant
Assignor.
7.5. REMEDIES CUMULATIVE. Each and every right, power and remedy hereby
specifically given to the Collateral Agent shall be in addition to every other
right, power and remedy specifically given under this Agreement, the Interest
Rate Protection Agreements or Other Hedging Agreements or the other Credit
Documents now or hereafter existing at law, in equity or by statute and each
and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised from time to time or simultaneously and as
often and in such order as may be deemed expedient by the Collateral Agent. All
such rights, powers and remedies shall be cumulative and the exercise or the
beginning of the exercise of one shall not be deemed a waiver of the right to
exercise any
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other or others. No delay or omission of the Collateral Agent in the exercise
of any such right, power or remedy and no renewal or extension of any of the
Obligations shall impair any such right, power or remedy or shall be construed
to be a waiver of any Default or Event of Default or an acquiescence therein.
No notice to or demand on any Assignor in any case shall entitle it to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of any of the rights of the Collateral Agent to any other
or further action in any circumstances without notice or demand. In the event
that the Collateral Agent shall bring any suit to enforce any of its rights
hereunder and shall be entitled to judgment, then in such suit the Collateral
Agent may recover expenses, including attorneys' fees, and the amounts thereof
shall be included in such judgment.
7.6. DISCONTINUANCE OF PROCEEDINGS. In case the Collateral Agent shall
have instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have been
determined adversely to the Collateral Agent, then and in every such case the
relevant Assignor, the Collateral Agent and each holder of any of the
Obligations shall be restored to their former positions and rights hereunder
with respect to the Collateral subject to the security interest created under
this Agreement, and all rights, remedies and powers of the Collateral Agent
shall continue as if no such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1. INDEMNITY. (a) Each Assignor jointly and severally agrees to
indemnify, reimburse and hold the Collateral Agent, each other Secured Creditor
and their respective successors, permitted assigns, employees, agents and
servants (hereinafter in this Section 8.1 referred to individually as an
"Indemnitee," and, collectively, as "Indemnities") harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and any and all costs, expenses or disbursements
(including attorneys' fees and expenses) (for the purposes of this Section 8.1
the foregoing are collectively called "expenses") of whatsoever kind and nature
imposed on, asserted against or incurred by any of the Indemnities in any way
relating to or arising out of this Agreement, any Interest Rate Protection
Agreement or Other Hedging Agreement, any other Credit Document or any other
document executed in connection herewith or therewith or in any other way
connected with the administration of the transactions contemplated hereby or
thereby or the enforcement of any of the terms of, or the preservation of any
rights under any thereof, or in any way relating to or arising out of the
manufacture, ownership, ordering, purchase, delivery, control, acceptance,
lease, financing, possession, operation, condition, sale, return or other
disposition, or use of the Collateral (including,
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without limitation, latent or other defects, whether or not discoverable), the
violation of the laws of any country, state or other governmental body or
unit, any tort (including, without limitation, claims arising or imposed under
the doctrine of strict liability, or for or on account of injury to or the
death of any Person (including any Indemnitee), or property damage), or
contract claim; provided that no Indemnitee shall be indemnified pursuant to
this Section 8.1(a) for losses, damages or liabilities to the extent caused by
the gross negligence or willful misconduct of such Indemnitee. Each Assignor
agrees that upon written notice by any Indemnitee of the assertion of such a
liability, obligation, damage, injury, penalty, claim, demand, action, suit or
judgment, the relevant Assignor shall assume full responsibility for the
defense thereof. Each Indemnitee agrees to use its best efforts to promptly
notify the relevant Assignor of any such assertion of which such Indemnitee
has knowledge.
(b) Without limiting the application of Section 8.1(a) hereof, each
Assignor agrees, jointly and severally, to pay, or reimburse the Collateral
Agent for any and all fees, costs and expenses of whatever kind or nature
incurred in connection with the creation, preservation or protection of the
Collateral Agent's Liens on, and security interest in, the Collateral.
including, without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public offices, payment or
discharge of any taxes or Liens upon or in respect of the Collateral, premiums
for insurance with respect to the Collateral and all other fees, costs and
expenses in connection with protecting, maintaining or preserving the
Collateral and the Collateral Agent's interest therein, whether through
judicial proceedings or otherwise, or in defending or prosecuting any actions.
suits or proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or (b) hereof,
each Assignor agrees, jointly and severally, to pay, indemnify and hold each
Indemnitee harmless from and against any loss, costs, damages and expenses
which such Indemnitee may suffer, expend or incur in consequence of or growing
out of any misrepresentation by any Assignor in this Agreement, any Interest
Rate Protection Agreement or Other Hedging Agreement, any other Credit Document
or in any writing contemplated by or made or delivered pursuant to or in
connection with this Agreement, any Interest Rate Protection Agreement or Other
Hedging Agreement or any other Credit Document.
(d) If and to the extent that the obligations of any Assignor under this
Section 8.1 are unenforceable for any reason, such Assignor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
8.2. INDEMNITY OBLIGATIONS SECURED BY COLLATERAL; SURVIVAL. Any amounts
paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each
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Assignor contained in this Article VIII shall continue in full force and
effect notwithstanding the full payment of all the Notes issued under the
Credit Agreement, the termination of all Interest Rate Protection Agreements
or Other Hedging Agreements and Letters of Credit, and the payment of all
other Obligations and notwithstanding the discharge thereof.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified. Such
definitions shall be equally applicable to the singular and plural forms of the
terms defined.
"Agent" shall have the meaning provided in the recitals to this Agreement.
"Agreement" shall have the meaning provided in the preamble to this
Agreement.
"Assignor" shall have the meaning provided in the preamble to this
Agreement.
"Bank Creditors" shall have the meaning provided in the recitals to this
Agreement.
"Banks" shall have the meaning provided in the recitals to this Agreement.
"Borrower" shall have the meaning provided in the recitals of this
Agreement.
"Cash Collateral Account" shall mean a non-interest bearing cash
collateral account maintained with, and in the sole dominion and control of,
the Collateral Agent for the benefit of the Secured Creditors.
"Chattel Paper" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Class" shall have the meaning provided in Section 10.2 of this Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a) of this
Agreement.
-23-
"Collateral Agents' shall have the meaning provided in the preamble to
this Agreement.
"Contract Rights" shall mean all rights of any Assignor (including without
limitation all rights to payment) under each Contract.
"Contracts" shall mean all contracts between any Assignor and one or more
additional parties (including, without limitation, any Interest Rate Protection
Agreements or Other Hedging Agreements), but excluding those Contracts to the
extent that the terms thereof expressly prohibit the assignment of, or granting
of a security interest in, such Assignor's rights and obligations thereunder
(it being understood and agreed, however, that notwithstanding the foregoing,
all rights to payment for money due or to become due pursuant to any excluded
contract shall be subject to the security interests created pursuant to this
Agreement).
"Copyrights" shall mean any U.S. or foreign copyright owned by any
Assignor, including any registrations of any Copyrights, in the U.S. Copyright
Office or the equivalent thereof in any foreign country, as well as any
application for a U.S. or foreign copyright registration now or hereafter made
with the U.S. Copyright Office or the equivalent thereof in any foreign
jurisdiction by any Assignor.
"Credit Agreement" shall have the meaning provided in the recitals to this
Agreement.
"Credit Document Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"Default" shall mean any event which, with notice or lapse of time, or
both, would constitute an Event of Default.
"Documents" shall have the meaning provided in the Uniform Commercial Code
as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all machinery, equipment, furnishings, movable
trade fixtures and vehicles now or hereafter owned by any Assignor and any and
all additions, substitutions and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto.
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"Event of Default" shall mean any Event of Default under, and as defined
in, the Credit Agreement or any payment default under any Interest Rate
Protection Agreement or Other Hedging Agreement and shall in any event, without
limitation, include any payment default on any of the Obligations after the
expiration of any applicable grace period.
"General Intangibles" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Goods" shall have the meaning provided in the Uniform Commercial Code as
in effect on the date hereof in the State of New York.
"Holdings" shall have the meaning provided in the recitals to this
Agreement.
"Indemnitee" shall have the meaning provided in Section 8.1 of this
Agreement.
"Instrument" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Interest Rate Protection Agreement or Other Hedging Agreement" shall have
the meaning provided in the recitals to this Agreement.
"Inventory" shall mean merchandise, inventory and goods, and all
additions, substitutions and replacements thereof, wherever located, together
with all goods, supplies, incidentals, packaging materials, labels, materials
and any other items used or usable in manufacturing, processing, packaging or
shipping same; in all stages of production -- from raw materials through work-
in-process to finished goods -- and all products and proceeds of whatever sort
and wherever located and any portion thereof which may be returned, rejected,
reclaimed or repossessed by the Collateral Agent from any Assignor's customers,
and shall specifically include all "inventory" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor.
"Liens" shall mean any security interest, mortgage, pledge, lien, claim,
charge, encumbrance, title retention agreement, lessor's interest in a
financing lease or analogous instrument, in, of, or on any Assignor's property.
"Marks" shall mean all right, title and interest in and to any U.S. or
foreign trademarks, service marks and trade names now held or hereafter
acquired by any Assignor, including any registration or application for
registration of any trademarks and
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service marks in the United States Patent and Trademark Office, or the
equivalent, thereof in any State of the United States or in any foreign
country, and any trade dress including logos, designs, trade names, company
names, business names, fictitious business names and other business
identifiers in connection with which any of these registered or unregistered
marks are used.
"Obligations" shall mean (i) the full and prompt payment when due (whether
at the stated maturity, by acceleration or otherwise) of all obligations and
liabilities (including, without limitation, indemnities, fees and interest
thereon) of each Assignor owing to the Bank Creditors, now existing or
hereafter incurred under, arising out of or in connection with any Credit
Document to which such Assignor is a party (including all such obligations and
liability under any Guaranty to which such Assignor is a party) and the due
performance and compliance by each Assignor with the terms, conditions and
agreements of each such Credit Document (all such obligations and liabilities
under this clause (i), except to the extent consisting of obligations or
liabilities with respect to Interest Rate Protection Agreements or Other
Hedging Agreements, being herein collectively called the "Credit Document
Obligations"); (ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and liabilities
(including, without limitation, indemnities, fees and interest thereon) of each
Assignor owing to the Other Creditors, now existing or hereafter incurred
under, arising out of or in connection with any Interest Rate Protection
Agreement or Other Hedging Agreement, whether such Interest Rate Protection
Agreement or Other Hedging Agreement is now in existence or hereafter arising),
including, all such obligations under the Parent Guaranty and (y) each
Subsidiary Guarantor, all obligations and liabilities under any Guaranty to
which such Assignor is a party, in each case in respect of Interest Rate
Protection Agreements or Other Hedging Agreements), and the due performance and
compliance by such Assignor with all of the terms, conditions and agreements
contained in any such Interest Rate Protection Agreement or Other Hedging
Agreement (all such obligations and liabilities under this clause (ii) being
herein collectively called the "Other Obligations"); (iii) any and all sums
advanced by the Collateral Agent in order to preserve the Collateral or
preserve its security interest in the Collateral; (iv) in the event of any
proceeding for the collection or enforcement of any indebtedness, obligations,
or liabilities of each Assignor referred to in clauses (i), (ii) and (iii)
after an Event of Default shall have occurred and be continuing, the reasonable
expenses of re-taking, holding, preparing for sale or lease, selling or
otherwise disposing of or realizing on the Collateral, or of any exercise by
the Collateral Agent of its rights hereunder, together with reasonable
attorneys' fees and court costs; and (v) all amounts paid by any Indemnitee as
to which such Indemnitee has the right to reimbursement under Section 8.1 of
this Agreement. It is acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
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"Other Creditors" shall have the meaning provided in the recitals to this
Agreement.
"Other Obligations" shall have the meaning provided in the definition of
"Obligations" in this Article IX.
"Parent" shall have the meaning provided in the recitals to this
Agreement.
"Patents" shall mean any U.S. or foreign patent to which any Assignor now
or hereafter has title and any divisions or continuations thereof, as well as
any application for a U.S. or foreign patent now or hereafter made by any
Assignor.
"Pledged Securities" shall have the meaning provided in the Pledge
Agreement.
"Primary Obligations" shall have the meaning provided in Section 7.4(b) of
this Agreement.
"Proceeds" shall have the meaning provided in the Uniform Commercial Code
as in effect in the State of New York on the date hereof or under other
relevant law and, in any event, shall include, but not be limited to, (i) any
and all proceeds of any insurance, indemnity, warranty or guaranty payable to
the Collateral Agent or any Assignor from time to time with respect to any of
the Collateral, (ii) any and all payments (in any form whatsoever) made or due
and payable to any Assignor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any person acting
under color of governmental authority) and (iii) any and all other amounts from
time to time paid or payable under or in connection with any of the Collateral.
"Pro Rata Share" shall have the meaning provided in Section 7.4(b) of this
Agreement.
"Receivables" shall mean any "account" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all of such Assignor's rights to payment for, or
exchange of, goods sold or leased or services performed or product exchanged by
such Assignor, whether now in existence or arising from time to time hereafter,
including, without limitation, rights evidenced by an account, note, contract,
barter arrangement, security agreement, chattel paper, or other evidence of
indebtedness or security, together with (a) all security pledged, assigned,
hypothecated or granted to or held by such Assignor to secure the foregoing,
(b) all of any Assignor's right, title and interest in and to any goods or
services, the sale or exchange of
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which gave rise thereto, (c) all guarantees, endorsements and indemnifications
On, or of, any of the foregoing, (d) all powers of attorney for the execution
of any evidence of indebtedness or security or other writing in connection
therewith, (e) all books, records, ledger cards, and invoices relating
thereto, (f) all evidences of the filing of financing statements and other
statements and the registration of other instruments in connection therewith
and amendments thereto, notices to other creditors or secured parties, and
certificates from filing or other registration officers, (g) all credit
information, reports and memoranda relating thereto and (h) all "other
writings related in any way to the foregoing.
"Representative" shall have the meaning provided in Section 7.4(e) of
this Agreement.
"Requisite Creditors" shall have the meaning provided in Section 10.2 of
this Agreement.
"Secondary Obligations" shall have the meaning provided in Section 7.4(b)
of this Agreement.
"Secured Creditors" shall have the meaning provided in the recitals to
this Agreement.
"Termination Date" shall have the meaning provided in Section 10.8 of this
Agreement.
"Trade Secret Rights" shall have the meaning provided in Section 5.1 of
this Agreement.
"Tri-Star Holdings" shall have the meaning provided in the recitals to
this Agreement.
ARTICLE X
MISCELLANEOUS
10.1. NOTICES. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be deemed to have been duly given or made when delivered to the
party to which such notice, request, demand or other communication is required
or permitted to be given or made under this Agreement, addressed:
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(a) if to any Assignor, at it address set forth opposite its signature
below;
(b) if to the Collateral Agent:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Bank Creditor (other than the Collateral Agent), at such
address as such Bank Creditor shall have specified in the Credit Agreement; and
(d) if to any Other Creditor, at such address as such Other Creditor
shall have specified in writing to each Assignor and the Collateral Agent;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
10.2. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by each Assignor directly and adversely affected
thereby and the Collateral Agent (with the consent of (x) the Required Banks
(or all the Banks if required by Section 13.12 of the Credit Agreement) at all
times prior to the time at which all Credit Document Obligations have been paid
in full and all Commitments under the Credit Agreement have been terminated or
(y) the holders of at least a majority of the outstanding Other Obligations at
all times after the time on which all Credit Document Obligations have been
paid in hill and all Commitments under the Credit Agreement have been
terminated; PROVIDED, that any change, waiver, modification or variance
affecting the rights and benefits of a single Class of Secured Creditors (and
not all Secured Creditors in a like or similar manner) shall require the
written consent of the Requisite Creditors of such Class of Secured Creditors.
For the purpose of this Agreement the term "Class" shall mean each class of
Secured Creditors, EL,, whether (x) the Bank Creditors as holders of the Credit
Document Obligations or (y) the Other Creditors as the holders of the Other
Obligations. For the purpose of this Agreement, the term "Requisite Creditors"
of any Class shall mean each of (x) with respect to the Credit Document
Obligations, the Required Banks and (y) with respect to the Other Obligations,
the holders of at least a majority of all obligations outstanding from time to
time under the Interest Rate Protection Agreements or Other Hedging Agreements.
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10.3. OBLIGATIONS ABSOLUTE. The obligations of each Assignor hereunder
shall remain in full force and effect without regard to, and shall not be
impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of such Assignor; (b) any
exercise or non-exercise, or any waiver of, any right, remedy, power or
privilege under or in respect of this Agreement, any other Credit Document or
any Interest Rate Protection Agreement or Other Hedging Agreement; or (c) any
renewal, extension, amendment or modification of or addition or supplement to
or deletion from any Credit Document or any Interest Rate Protection Agreement
or Other Hedging Agreement or any security for any of the Obligations; (d) any
waiver, consent, extension, indulgence or other action or inaction under or in
respect of any such agreement or instrument including, without limitation, this
Agreement; (e) any furnishing of any additional security to the Collateral
Agent or its assignee or any acceptance thereof or any release of any security
by the Collateral Agent or its assignee; or (f) any limitation on any party's
liability or obligations under any such instrument or agreement or any
invalidity or unenforceability, in whole or in part, of any such instrument or
agreement or any term thereof; whether or not any Assignor shall have notice or
knowledge of any of the fore-going. The rights and remedies of the Collateral
Agent herein provided are cumulative and not exclusive of any rights or
remedies which the Collateral Agent would otherwise have.
10.4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
each Assignor and its successors and assigns and shall inure to the benefit of
the Collateral Agent and its successors and assigns; PROVIDED, that no Assignor
may transfer or assign any or all of its rights or obligations hereunder
without the prior written consent of the Collateral Agent. All agreements,
statements, representations and warranties made by each Assignor herein or in
any certificate or other instrument delivered by such Assignor or on its behalf
under this Agreement shall be considered to have been relied upon by the
Secured Creditors and shall survive the execution and delivery of this
Agreement, the other Credit Documents and the Interest Rate Protection
Agreements or Other Hedging Agreements regardless of any investigation made by
the Secured Creditors or on their behalf.
10.5. HEADINGS DESCRIPTIVE. The headings of the several sections of
this Agreement are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Agreement.
10.6. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE LAW OF THE STATE OF NEW YORK.
10.7. ASSIGNOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Assignor shall remain
liable to perform all of the obligations, if any, assumed by it with respect to
the Collateral and the Collateral Agent
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shall not have any obligations or liabilities with respect to any Collateral
by reason of or arising out of this Agreement, nor shall the Collateral Agent
be required or obligated in any manner to perform or fulfill any of the
obligations of each Assignor under or with respect to any Collateral.
10.8. TERMINATION; RELEASE. (a) After the Termination Date this
Agreement shall terminate (provided that all indemnities set forth herein
including, without limitation, in Section 8.1 hereof shall survive such
termination) and the Collateral Agent, at the request and expense of the
respective Assignor, will promptly execute and deliver to such Assignor a
proper instrument or instruments (including Uniform Commercial Code termination
statements on form UCC-3) acknowledging the satisfaction and termination of
this Agreement, and will duly assign, transfer and deliver to such Assignor
(without recourse and without any representation or warranty) such of the
Collateral as may be in the possession of the Collateral Agent and as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement. As used in this Agreement, "Termination Date" shall mean the date
upon which the Total Commitment and all Interest Rate Protection Agreements or
Other Hedging Agreements have been terminated, no Note is outstanding (and all
Loans have been paid in full), all Letters of Credit have been terminated and
all other Obligations then owing have been paid in full.
(b) In the event that any part of the Collateral is sold (x) at any
time prior to the time at which all Credit Document Obligations have been paid
in full and all Commitments under the Credit Agreement have been terminated, in
connection with a sale permitted by Section 9.02 of the Credit Agreement or is
otherwise released at the direction of the Required Banks (or all the Banks if
required by Section 13.12 of the Credit Agreement) or (y) at any time
thereafter, to the extent permitted by the Interest Rate Protection Agreements
or Other Hedging Agreements, and in the case of clause (x) and (y), the
proceeds of such sale or sales or from such release are applied in accordance
with the terms of the Credit Agreement or such Interest Rate Protection
Agreements or Other Hedging Agreements, as the case may be, to the extent
required to be so applied, the Collateral Agent, at the request and expense of
such Assignor, will duly assign, transfer and deliver to such Assignor (without
recourse and without any representation or warranty) such of the Collateral as
is then being (or has been) so sold or released and as may be in the possession
of the Collateral Agent and has not theretofore been released pursuant to this
Agreement.
(c) At any time that the respective Assignor desires that Collateral
be released as provided in the foregoing Section 10.8(a) or (b), it shall
deliver to the Collateral Agent a certificate signed by its chief financial
officer or another senior officer of such Assignor stating that the release of
the respective Collateral is permitted pursuant to such Section 10.8(a) or (b).
If requested by the Collateral Agent (although the Collateral Agent shall have
no obligation to make any such request), the relevant Assignor shall furnish
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appropriate legal opinions (from counsel, which may be in-house counsel,
reasonably acceptable to the Collateral Agent) to the effect set forth in the
immediately preceding sentence. The Collateral Agent shall have no liability
whatsoever to any Secured Creditor as the result of any release of Collateral
by it as permitted by this Section 10.8.
10.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Collateral Agent.
10.10. THE COLLATERAL AGENT. The Collateral Agent will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement, it is expressly understood and agreed that the
obligations of the Collateral Agent as holder of the Collateral and interests
therein and with respect to the disposition thereof, and otherwise under this
Agreement, are only those expressly set forth in this Agreement. The
Collateral Agent shall act hereunder on the terms and conditions set forth in
Section 12 of the Credit Agreement.
10.11. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.12. LIMITED OBLIGATIONS. It is the desire and intent of each
Assignor and the other Secured Creditors that this Agreement shall be enforced
against each Assignor to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought.
10.13. ADDITIONAL ASSIGNORS. it is understood and agreed that any
Subsidiary of Parent that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall
automatically become an Assignor hereunder by executing a counterpart hereof
and delivering the same to the Collateral Agent.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
Address:
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MAPLE LEAF AEROSPACE, INC., as an
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Assignor
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
AEROSPACE ACQUISITION CORP.
as an Assignor
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
TRI-STAR AEROSPACE, INC.
(as successor by merger to AEROSPACE
MERGER SUB I, INC.), as an Assignor
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
TRI-STAR AEROSPACE CO., as an Assignor
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
TRI-STAR INVENTORY MANAGEMENT
SERVICE, INC., as an Assignor
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
BANKERS TRUST COMPANY,
as Collateral Agent
By /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Managing Director