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EXHIBIT 10.3
SECURITY AGREEMENT
Security Agreement, dated as of June 15, 2001, made by and among U.S.
Plastic Lumber Corp., a Nevada corporation with principal offices at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), each of the
undersigned wholly-owned subsidiaries ("Subsidiaries") of the Company with
principal offices at the addresses specified by their respective signatures and
Halifax Fund, L.P., a limited partnership with offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Purchaser"). The Company and the Subsidiaries are
sometimes hereinafter referred to as the "Grantors". Purchaser is sometimes
hereafter referred to as the "Secured Party."
WHEREAS, the parties hereto are entering into the Debenture Purchase
Agreement (the "Debenture Purchase Agreement") of even date herewith, pursuant
to which the Company will sell and issue to Purchaser certain 18% Debentures
(the "Debentures") in the aggregate principal amount of $4,000,000;
WHEREAS, Section 4.2(g) of the Debenture Purchase Agreement provides
that a condition precedent to Purchaser's obligation to purchase the Debentures
is the execution and delivery by the Grantors of this Security Agreement
granting Purchaser a subordinate lien on all assets of the Grantors for the
purpose of securing the Company's obligations (i) under the Debentures, (ii)
under the Company's outstanding 5% convertible debentures due February 2, 2005
(the "2000 Debentures") and (iii) under the Company's Series D 15% Preferred
Stock, (the "Series D Preferred Stock").
NOW THEREFORE, in consideration of the foregoing, each of the Grantors
hereby respectively agrees with the Secured Party as follows:
SECTION 1. Grant of Security Interest. As collateral
security for all of the Obligations (as defined in Section 2 hereof), each of
the Grantors hereby respectively pledge and collaterally assign to the Secured
Party, and grant to the Secured Party a continuing security interest in their
respective interests in the following (the "Collateral"):
All assets of the Grantors, including without limitation all
presently existing and hereafter arising (i) accounts,
contract rights, and all other forms of obligations owing to
the Grantors from any source ("Accounts"); (ii) all of the
books and records of the Grantors, including ledgers, records
indicating, summarizing, or evidencing the assets or
liabilities of the Grantors, or the Collateral, all
information relating to the Grantor's business operations or
financial condition, all computer programs, disc or tape
files, printouts, runs or other computer prepared information,
and any equipment containing such information (the Grantors'
"Books"); (iii) all of the Grantors' present and hereafter
acquired equipment, wherever located, and all attachments,
accessories, accessions, replacements, substitutions,
additions and improvements to any of the foregoing, wherever
located ("Equipment"); all of Grantors' present and hereafter
acquired
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general intangibles and other personal property (including,
but not limited to, contract rights, rights arising under
common law, statutes or regulations, choses or things in
action, goodwill, patents, trade names, trademarks, service
marks, copyrights, blueprints, drawings, purchase orders,
customer lists, monies due under any royalty or licensing
agreements, infringements, claims, computer programs, discs or
tapes, deposit accounts, insurance premium rebates, tax
refunds, and tax refund claims, as well as all cash collateral
that is hypothecated to secure letters of credit or bonding
obligations) ("General Intangibles"); (iv) all present and
future inventory in which any Grantor has any interest, and
all of the present and future raw materials of the Grantors,
work in process, finished goods, and packing and shipping
material, wherever located, any documents of title
representing any of the above ("Inventory"); (v) all of the
negotiable collateral of the Grantors, including all of the
Grantors' present and future letters of credit, notes, drafts,
instruments, certificated securities (including the shares of
stock of any subsidiary), documents, personal property leases
(where any Grantor is the lessor), chattel paper and the books
and records of the Grantors relating to any of the foregoing
("Negotiable Collateral"); (vi) any money or other assets of
any Grantor which hereafter come into the possession, custody
or control of any Grantor, and (vii) the proceeds and
products, whether tangible or intangible, of any of the
foregoing including proceeds of insurance covering any or all
of the Collateral, and any and all Accounts, Equipment,
General Intangibles, Inventory, Negotiable Collateral, money,
deposit accounts or other tangible or intangible, real or
personal, property resulting from the sale, exchange,
collection or other disposition of the Collateral, or any
portion thereof or interest therein, and the proceeds thereof;
in each case howsoever the interest of any Grantor therein may arise or appear
(whether by ownership, security interest, claim or otherwise).
The Secured Party acknowledges that its security interest in the
Collateral is junior to the liens granted to Bank of America, N.A. and the other
lenders set forth in the Credit Agreement (as defined below) (the "Senior
Lender(s)") in the Collateral, pursuant to the Credit Agreement dated as of June
30, 2000, and as subsequently amended by and between the Senior Lender(s) and
the Company (the "Credit Agreement"), and further acknowledges that it is
subject to the Intercreditor Agreement, dated the date hereof (the
"Intercreditor Agreement"), by and between the Secured Party and the Senior
Lender. The Secured Party further acknowledges and agrees that in connection
with a refinancing of the obligations of Grantors to the Senior Lenders, (a) the
security interest in the Collateral granted herein shall be junior to the liens
in favor of such replacement lenders, and (b) in order to evidence such
subordination, the Secured Party shall execute and deliver to such replacement
lenders an intercreditor and subordination agreement substantially the same as
or similar to the Intercreditor Agreement so long as the aggregate debt
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does not exceed the limitations of Section 3.13 of the Debenture Purchase
Agreement, provided that the Secured Party's refusal to so execute and deliver
an intercreditor and subordination agreement under this Clause (b) shall in no
way limit the validity and enforceability of the foregoing Clause (a).
SECTION 2. Security for Obligations. The security interest
created hereby in the Collateral constitutes continuing collateral security for
the prompt payment by the company, as and when due and payable, of all amounts
from time to time owing by it to the Secured Party under the Debenture Purchase
Agreement, the Registration Rights Agreement, dated as of the date hereof
between the Company and the Secured Party, the Debentures, the 2000 Debentures,
the debenture purchase agreement pursuant to which the 2000 Debentures were
issued (the "2000 Debenture Purchase Agreement), and the Company's obligations
in respect of the Series D Preferred Stock (collectively, the "Obligations").
SECTION 3. Representation and Warranties. Each of the Grantors
respectively represents and warrants as follows:
(a) The Grantors are and will be at all times the owners
of the Collateral free and clear of any other lien, security interest or other
charge or encumbrance except for the lien in favor of the Senior Lender and
except as described in Section 2.1(aa) of the Debenture Purchase Agreement and
Schedule 2.1(aa) thereof.
(b) The chief executive office location and each
equipment and inventory location of each Grantor are set forth on Schedule 1
hereto.
(c) The state of incorporation of each Grantor is set
forth on Schedule II.
SECTION 4. Covenants as to the Collateral. So long as any of the
Obligations shall remain outstanding, unless the Secured Party shall otherwise
consent in writing,
(a) Further Assurances. Promptly after request by the
Secured Party, each Grantor will at its expense, at any time and from time to
time, promptly execute and deliver all further instruments and documents and
take all further action that may be reasonably necessary or desirable (i) to
perfect and protect the security interest to be created hereby in all
jurisdictions containing Collateral; (ii) to enable Secured Party to exercise
and enforce their rights and remedies hereunder in respect of the Collateral; or
(iii) to otherwise effect the purposes of this Agreement. Without limiting the
generality of the foregoing, the Grantors agree, promptly after request by the
Secured Party, to take such further actions as may be necessary to cause the
Secured Party's security interest in the Collateral to remain valid and
perfected after any amendment to Article 9 of the Uniform Commercial Code.
(b) Provisions Concerning the Collateral. Each Grantor
will (A) give Secured Party prompt notice of any change in the Grantor's name,
identity or corporate structure, (B) keep all originals of all documents
relating to the Collateral at such Grantor's principal office, and (C) keep
adequate records concerning the Collateral and permit representatives of Secured
Party at any time during normal business hours on reasonable notice to inspect
such
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records (provided the Secured Party agree to keep all information inspected
strictly confidential, and provided further that the Secured Party shall only be
entitled to perform such an inspection on a monthly basis so long as no Event of
Default is outstanding).
(c) Transfer. The Grantors will not sell, assign,
exchange or otherwise dispose of any of the Collateral except (a) in the
ordinary course of business, (b) dispositions of worn or obsolete equipment,
provided the proceeds thereof are being used to pay Indebtedness or indebtedness
owed to the Senior Lenders, (c) encumbrances in favor of the Senior Lenders, (d)
encumbrances of specific assets in connection with the purchase money financing
thereof, (e) encumbrances in favor of the other parties which are subordinate to
the Secured Party's liens, subject to the terms of an intercreditor agreement
reasonably satisfactory to Secured Party, and (f) where the Senior Lenders have
consented to such disposition.
(d) The Secured Party hereby consents to release its lien
on Collateral the sale or disposition of which (but not encumbrance) has been
approved by the Senior Lenders and the liens of the Senior Lenders on such
Collateral have been released; provided, however, that the Secured Party's lien
on the proceeds thereof shall remain, consistent with the terms of this
Agreement and the Intercreditor Agreement; further provided that the Grantors
may use and apply such proceeds in a manner permitted by the Senior Lenders.
(e) If a Grantor fails to perform any agreement contained
herein, Secured Party may itself perform or cause performance of such agreement
or obligation, and the reasonable expenses of Secured Party incurred in
connection therewith shall be payable by the Company pursuant to Section 5(d)
hereof.
SECTION 5. Remedies Upon Default. If any of the Obligations are
not paid when due, or if the Company or any Grantor is in default of (a) any of
its obligations under this Agreement in any material respect, or (b) the
Debenture Purchase Agreement, the Debentures, the 2000 Debentures, the 2000
Debenture Purchase Agreement or Series D Preferred Stock (an "Event of
Default"), and subject to any rights of the Senior Lender:
(a) The Secured Party may exercise in respect of the
Collateral in addition to other rights and remedies the rights and remedies of a
secured party under the Uniform Commercial Code in effect in the states of
Florida, Nevada or any other jurisdiction where Collateral is located (the
"Code") and also may (i) require the Grantors to, and the Grantors hereby agree
that they will at their own expense and upon request of the Secured Party
forthwith, assemble all or part of the Collateral as directed by the Secured
Party and make it available to Secured Party at a place that is reasonably
convenient to both parties to be designated by Secured Party and (ii) upon ten
(10) days' (or such longer period shall be required by law) prior written
notice, sell the Collateral or any part thereof, in one or more parcels at
public or private sale, for cash, on credit or for future delivery, and at such
price or prices and upon such other terms as the Secured Party may determine
(provided that all aspects of any such sale are commercially reasonable). The
Secured Party shall not be obligated to make any sale of Collateral regardless
of notice of sale having been given. The Secured Party may adjourn any public or
private sale from time to time by announcement at the time and placed fixed
therefor, and such sale may, without further notices, be made at the time and
place to which it was so adjourned.
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(b) Any cash held by the Secured Party as Collateral and
all cash proceeds received by Secured Party in respect of any sale of,
collection from, or other realization upon, all or any part of the Collateral
shall be applied in whole or in part by Secured Party against, all or any part
of the Obligations in the following order: (i) reasonable costs and expenses
incurred by The Secured Party as of such date in connection with collection of
the Obligations and enforcement of this Agreement, (ii) unpaid interest due and
owing by the Company as of such date and (iii) unpaid principal due and owing by
the Company as of such date. Any surplus of such cash or cash proceeds held by
the Secured Party and remaining after the payment in full of all of the
Obligations shall be paid over to the Company or to such person as may be
lawfully entitled to receive such surplus.
(c) In the event that the proceeds of any such collection
or realization are insufficient to pay all amount to which the Secured Party is
legally entitled, the Company shall be liable for the deficiency, together with
interest thereon at the highest rate specified in the Debentures, 2000
Debentures and Series D Preferred Stock, as the case may be, for interest on
overdue principal thereof, together with the reasonable costs of collection.
(d) The Company will upon demand pay to the Secured Party
the amount of any and all reasonable costs and expenses, including the
reasonable fees and disbursements of the Secured Party' counsel, which the
Secured Party may incur in connection with (i) the sale of, collection from, or
other realization upon, any Collateral, (ii) the exercise or enforcement of any
of the rights of the Secured Party hereunder, or (iii) the failure by any
Grantor to perform or observe any of the provisions hereof.
SECTION 5A. Power of Attorney. Each Grantor hereby irrevocably
makes, constitutes, and appoints Secured Party (and all of the Secured Party's
general partners, officers, employees, or agents designated by the Secured
Party) as its true and lawful attorney, with power to: (i) sign the Grantor's
name on any of the documents described hereunder or on any other similar
documents to be executed, recorded, or filed in order to perfect or continue
perfection of the Secured Party's security interest in the Collateral if such
Grantor has not complied with its obligations under Section 4(a) herein; (ii) at
any time that an Event of Default has occurred and is continuing, execute, sign
and endorse the Grantor's name on any invoice or ▇▇▇▇ of lading relating to any
Account, drafts against Account debtors, schedules and assignments of Accounts,
verifications of Accounts, and notices to Account debtors; (iii) send requests
for verification of Accounts; (iv) at any time that any Event of Default has
occurred and is continuing, execute, sign and endorse the Grantor's name on any
checks, notices, instruments, acceptances, money orders, drafts, warrants or
other item of payment or security that may come into the Secured Party's
possession; (v) at any time that an Event of Default has occurred and is
continuing, demand, collect, receive, receipt for, ▇▇▇ and recover all sums of
money or other property which may now or hereafter become due, owing or payable
from the Collateral; (vi) at any time that any Event of Default has occurred and
is continuing, file any claim or claims or, following an Event of Default, take
any action or institute or take part in any proceedings, either in its own name
or in the name of the Grantor, or otherwise, which in the discretion of the
Secured Party may seem to be necessary or advisable; (vii) at any time that an
Event of Default has occurred and following acceleration of the Indebtedness,
direct the Account debtors and other persons sending mail to the Grantor to send
all mail relating to the Collateral to the Secured Party; (viii) at any time
that an Event of Default has occurred and is continuing, make, settle, and
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adjust all claims under the Grantor's policies of insurance and make all
determinations and decisions with respect to such policies of insurance; and
(ix) at any time that an Event of Default has occurred and following
acceleration of the Indebtedness, settle and adjust disputes and claims
respecting the Accounts directly with Account debtors, for reasonable amounts
and upon reasonable terms, and the Secured Party may cause to be executed and
delivered any documents and releases which Secured Party reasonably determines
to be necessary. The appointment of the Secured Party as the Grantor's attorney,
and each and every one of the Secured Party's rights and powers, being coupled
with an interest, is irrevocable and shall remain in full force and effect until
all of the Indebtedness has been fully repaid and performed and the Secured
Party renounces such appointment.
SECTION 6. Notices, Etc. Any notice or other communication
required or permitted to be given hereunder shall be in writing by facsimile,
mail or personal delivery and shall be effective upon actual receipt of such
notice. The addresses for such communications shall be:
to the Company and Subsidiaries:
U.S. Plastic Lumber Corp.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Blank Rome ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
to the Purchaser:
Halifax Fund, L.P.
c/o The Palladin Group, L.P.
Investment Manager
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Kleinberg, Kaplan, ▇▇▇▇▇ & ▇▇▇▇▇, P.C.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
Any party hereto may from time to time change its address for notices
by giving at least 10 days' written notice of such changed address to the other
parties hereto.
SECTION 7. Miscellaneous.
(a) No amendment of any provision of this Agreement shall
be effective unless it is in writing and signed by the Grantors and the Secured
Party, and no waiver of any provision of this Agreement shall be effective
unless it is in writing and signed by Secured Party, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
(b) No failure on the part of the Secured Party to
exercise, and no delay in exercising, any right hereunder or under any other
document relating hereto shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right preclude any other further exercise
thereof or the exercise of any other right. The rights and remedies of the
Secured Party provided herein and in the Debentures, 2000 Debentures and Series
D Preferred Stock are cumulative and are in addition to, and not exclusive of,
any rights or remedies provided by law.
(c) 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 portions hereof or thereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
(d) This Agreement shall create a continuing security
interest in the Collateral and shall (i) remain in full force and effect until
the payment in full or release of the Obligations and (ii) be binding on the
Grantors and their respective successors and assigns and shall inure, together
with all rights and remedies hereunder, to the benefit of the Secured Party and
their successors, transferee and assigns.
(e) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, except as required
by mandatory provisions of law and except to the extent that the validity and
perfection and the effect of perfection or non-perfection of the security
interest created hereby, or remedies hereunder, in respect of any particular
Collateral are governed by the law of a jurisdiction other than the State of New
York. The parties hereby consent to the exclusive jurisdiction of any New York
State or Federal court in New York City in any action or proceeding arising
hereunder.
(f) The actions of the holders of a majority-in-interest
of the Obligations shall be deemed the actions of the Secured Party for purposes
of giving any notice or enforcing any rights or remedies.
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(g) This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not
for the benefit of, nor may any provision hereof be enforced by, any other
person.
SECTION 8. Termination. So long as no Event of Default is
outstanding and the Obligations have not been accelerated, this Agreement and
the security interest granted hereunder shall terminate and be deemed released
upon payment in full of the Obligations. Upon receipt of such payment, the
Secured Party agrees to promptly execute and deliver UCC-3 termination
statements and other collateral release documentation reasonably requested by
Grantors in order to further evidence the termination and release effectuated
under this Section 8.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized,
as of the date first above written.
COMPANY:
U.S. PLASTIC LUMBER CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and General Counsel
SUBSIDIARIES:
U.S. PLASTIC LUMBER LTD.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
INTEGRATED TECHNICAL SERVICES, INC.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
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▇▇▇▇▇▇▇▇ ENVIRONMENTAL TECHNOLOGY, INC.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
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CLEAN EARTH OF MARYLAND, INC.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
CLEAN EARTH OF NEW CASTLE, INC.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
CLEAN EARTH OF PHILADELPHIA, INC.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
CLEAN EARTH OF NORTH JERSEY, INC.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
CLEAN EARTH OF CARTERET, INC
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
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CLEAN ROCK PROPERTIES, LTD.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
CONSOLIDATED TECHNOLOGIES, INC.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
ALLIED WASTE SERVICES, INC.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
CLEAN EARTH, INC.
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
CARTERET ASPHALT CORPORATION
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
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THE EAGLEBROOK GROUP, INC.
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
U.S. PLASTIC LUMBER FINANCE CORPORATION
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
U.S. PLASTIC LUMBER IP CORPORATION
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
ADVANCED REMEDIATION & DISPOSAL
TECHNOLOGIES OF DELAWARE, INC.
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
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PURCHASER:
HALIFAX FUND, L.P.
By: THE PALLADIN GROUP, L.P.
Attorney-in-Fact
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO U.S. PLASTIC LUMBER CORPORATION SECURITY AGREEMENT]
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