Exhibit 10.2
DOMESTIC SECURITY AGREEMENT
DOMESTIC SECURITY AGREEMENT dated as of January 4, 2006 (as it may
be amended, restated, supplemented or modified from time to time, this
"Agreement"), among the entities listed on the signature page hereof
(collectively referred to as the "Grantors" and individually as a "Grantor")
and GENERAL ELECTRIC CAPITAL CORPORATION, as Collateral Agent (in such
capacity, the "Collateral Agent") for the Secured Parties (as defined herein).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Pliant Corporation (the "Parent Borrower"), the Domestic
Subsidiary Borrowers (as defined therein), the Lenders party thereto (the
"Lenders"), and General Electric Capital Corporation, as Administrative Agent
and Collateral Agent are parties to that certain Senior Secured, Super
Priority, Priming Debtor-In-Possession Credit Agreement dated as of January 4,
2006 (as amended, restated, supplemented or otherwise modified from time to
time prior to the date hereof, the "Credit Agreement"); and
WHEREAS, pursuant to the Guarantee Agreement dated as of even date
herewith (as amended, restated supplemented or otherwise modified from time to
time, the "Guarantee Agreement"), certain of the Grantors have agreed to
guarantee, among other things, all the obligations of the Borrowers under the
Credit Agreement; and
WHEREAS, the obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit under the Credit Agreement are
conditioned upon, among other things, the execution and delivery by the
Grantors of an agreement in the form hereof to secure (a) the due and punctual
payment by the Borrowers of (i) the principal of and premium, if any, and
interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for
prepayment, or otherwise, (ii) each payment required to be made by the
Borrowers under the Credit Agreement in respect of any Letter of Credit, when
and as due, including payments in respect of reimbursement of disbursements,
interest thereon and obligations to provide cash collateral and (iii) all
other monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of each Loan Party to the Secured
Parties under the Credit Agreement and the other Loan Documents, (b) the due
and punctual performance of all covenants, agreements, obligations and
liabilities of each Loan Party under or pursuant to the Credit Agreement and
the other Loan Documents, (c) the due and punctual payment and performance of
all obligations of each Loan Party, monetary or otherwise, under each Swap
Agreement that (i) is effective on the Effective Date with a counterparty that
is a Lender (or an Affiliate of a Lender) as of the Effective Date or (ii) is
entered into after the Effective Date with any counterparty that is a Lender
(or an Affiliate thereof) at the time such Swap Agreement is entered into and
(d) the due and punctual payment and performance of all monetary obligations
of each Loan Party in respect of overdrafts and related liabilities owed to
any of the Lenders (or any Affiliates thereof) arising from treasury,
depositary and cash management services or in connection with any automated
clearinghouse transfers of funds (all the monetary and other obligations
described in the preceding clauses (a) through (d) being collectively called
the "Obligations"); and
ACCORDINGLY, each of the Grantors and the Collateral Agent, on
behalf of itself and each Secured Party (and each of their respective
successors or assigns), hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definition of Terms Used Herein. Unless the context
otherwise requires, all capitalized terms used but not defined herein shall
have the meanings set forth in the Credit Agreement and all terms defined in
the Uniform Commercial Code from time to time in effect in the State of New
York (the "NY UCC") and not defined herein shall have the meaning specified in
Article 9 of the NY UCC.
SECTION 1.02. Definition of Certain Terms Used Herein. As used
herein, the following terms shall have the following meanings:
"Account Debtor" shall mean any Person who is or who may become
obligated to any Grantor under, with respect to or on account of an Account.
"Accounts Receivable" shall mean all Accounts and all right, title
and interest in any returned goods, together with all rights, titles,
securities and guarantees with respect thereto, including any rights to
stoppage in transit, replevin, reclamation and resales, and all related
security interests, liens and pledges, whether voluntary or involuntary, in
each case whether now existing or owned or hereafter arising or acquired.
"Cash Concentration Account" shall mean, with respect to any
Grantor, the cash concentration account maintained by such Grantor with the
Collateral Agent, to which such Grantor will cause to be transferred, on each
Business Day, amounts deposited in the Collection Deposit Accounts on such
Business Day, as provided in Section 5.01.
"Collateral" shall have the meaning assigned to such term in Section
2.
"Collateral Proceeds Account" shall mean an account maintained by
and in the name of the Administrative Agent, for purposes of this Agreement
and the Credit Agreement.
"Collection Deposit Accounts" shall mean the respective collection
accounts maintained by the Collection Deposit Banks pursuant to the Collection
Deposit Letter Agreements and into which the Grantors will deposit or cause to
be deposited all Daily Receipts, as provided in Section 5.01.
"Collection Deposit Bank" shall mean, at any time, any financial
institution then serving as a "Collection Deposit Bank" as provided in Section
5.01.
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"Collection Deposit Letter Agreement" shall mean an agreement among
the applicable Grantor, a Collection Deposit Bank and the Collateral Agent, in
form and substance reasonably satisfactory to the Collateral Agent, pursuant
to which such Collection Deposit Bank shall maintain one or more Collection
Deposit Accounts, as such Collection Deposit Letter Agreement may be amended,
modified or supplemented from time to time.
"Commodity Account" shall mean an account maintained by a Commodity
Intermediary in which a Commodity Contract is carried out for a Commodity
Customer.
"Commodity Contract" shall mean a commodity futures contract, an
option on a commodity futures contract, a commodity option or any other
contract that, in each case, is (a) traded on or subject to the rules of a
board of trade that has been designated as a contract market for such a
contract pursuant to the federal commodities laws or (b) traded on a foreign
commodity board of trade, exchange or market, and is carried on the books of a
Commodity Intermediary for a Commodity Customer.
"Commodity Customer" shall mean a Person for whom a Commodity
Intermediary carries a Commodity Contract on its books.
"Commodity Intermediary" shall mean (a) a Person who is registered
as a futures commission merchant under the federal commodities laws or (b) a
Person who in the ordinary course of its business provides clearance or
settlement services for a board of trade that has been designated as a
contract market pursuant to federal commodities laws.
"Consumer Goods" shall mean goods that are used or bought for use
primarily for personal, family or household purposes.
"Copyright License" shall mean any written agreement, now or
hereafter in effect, granting any right to any third party under any Copyright
now or hereafter owned by any Grantor or which such Grantor otherwise has the
right to license, or granting any right to such Grantor under any Copyright
now or hereafter owned by any third party, and all rights of such Grantor
under any such agreement.
"Copyrights" shall mean all of the following now owned or hereafter
acquired by any Person: (a) all copyright rights in any work subject to the
copyright laws of the United States or Canada, whether as author, assignee,
transferee or otherwise, and (b) all registrations and applications for
registration of any such copyright in the United States or Canada, including
registrations, recordings, supplemental registrations and pending applications
for registration in the United States Copyright Office or any similar office
in Canada, including those listed on Schedule II.
"Credit Agreement" shall have the meaning assigned to such term in
the preliminary statement of this Agreement.
"Credit Card Payments" shall mean all payments received or
receivable by or on behalf of any Grantor in respect of sales of Inventory
paid for by credit card charges, including payments from financial
institutions that process credit card transactions for any of the Grantors.
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"Daily Receipts" shall mean all amounts received by the Grantors,
whether in the form of cash, checks, any moneys received or receivable in
respect of charges made by means of credit cards, and other negotiable
instruments, in each case as a result of the sale of Inventory or in respect
of Accounts Receivable.
"Documents" shall mean all instruments, files, records, ledger
sheets and documents covering or relating to any of the Collateral.
"Entitlement Holder" shall mean a Person identified in the records
of a Security Intermediary as the Person having a Security Entitlement against
the Security Intermediary. If a Person acquires a Security Entitlement by
virtue of Section 8-501(b)(2) or (3) of the Uniform Commercial Code, such
Person is the Entitlement Holder.
"Equipment" shall mean all equipment, furniture and furnishings,
including tools, parts and supplies of every kind and description, and all
improvements, accessions or appurtenances thereto, that are now or hereafter
owned by any Grantor.
"Farm Products" shall mean goods, other than standing timber, with
respect to which the debtor is engaged in a farming operation and which are:
(a) crops grown, growing or to be grown, including: (i) crops produced on
trees, vines and bushes; and (ii) aquatic goods produced in aquacultural
operations; (b) livestock, born or unborn, including aquatic goods produced in
aquacultural operations; (c) supplies used or produced in a farming operation;
and (d) products of crops or livestock in their unmanufactured states.
"Financial Asset" shall mean (a) a Security, (b) an obligation of a
Person or a share, participation or other interest in a Person or in property
or an enterprise of a Person, which is, or is of a type, dealt with in or
traded on financial markets, or which is recognized in any area in which it is
issued or dealt in as a medium for investment or (c) any property that is held
by a Security Intermediary for another Person in a Securities Account if the
Security Intermediary has expressly agreed with the other Person that the
property is to be treated as a Financial Asset under Article 8 of the Uniform
Commercial Code. As the context requires, the term Financial Asset shall mean
either the interest itself or the means by which a Person's claim to it is
evidenced, including a certificated or uncertificated Security, a certificate
representing a Security or a Security Entitlement.
"General Funds Account" shall mean an account maintained by the
Parent Borrower, to which the Administrative Agent will, subject to the terms
and conditions set forth herein, cause to be transferred certain amounts on
deposit in the Collateral Proceeds Account.
"General Intangibles" shall mean all "general intangibles" as such
term is defined in the NY UCC, and in any event, with respect to any Grantor,
all choses in action and causes of action and all other assignable intangible
personal property of any Grantor of every kind and nature (other than Accounts
Receivable) now owned or hereafter acquired by any Grantor, including
corporate or other business records, indemnification claims, contract rights
(including rights under leases, whether entered into as lessor or lessee, Swap
Agreements and other agreements but excluding contract rights in contracts
which contain an enforceable prohibition on assignment or the granting of a
security interest), Intellectual Property, goodwill,
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registrations, franchises, tax refund claims and any letter of credit,
guarantee, claim, security interest or other security held by or granted to
any Grantor to secure payment by an Account Debtor of any of the Accounts
Receivable.
"Goods" shall mean all "goods" as such term is defined in Article 9
of the NY UCC
"Intellectual Property" shall mean all intellectual and similar
property of any Grantor of every kind and nature now owned or hereafter
acquired by any Grantor, including inventions, designs, Patents, Copyrights,
Licenses, Trademarks, trade secrets, confidential or proprietary technical and
business information, know-how, show-how or other data or information,
software and databases and all embodiments or fixations thereof and related
documentation and registrations, and all additions, improvements and
accessions to, and books and records describing or used in connection with,
any of the foregoing.
"Inventory" shall mean all goods of any Grantor, whether now owned
or hereafter acquired, held for sale or lease, or furnished or to be furnished
by any Grantor under contracts of service, or consumed in any Grantor's
business, including raw materials, intermediates, work in process, packaging
materials, finished goods, semi-finished inventory, scrap inventory,
manufacturing supplies and spare parts, and all such goods that have been
returned to or repossessed by or on behalf of any Grantor.
"Investment Property" shall mean all Securities (whether
certificated or uncertificated), Security Entitlements, Securities Accounts,
Commodity Contracts and Commodity Accounts of any Grantor, whether now owned
or hereafter acquired by any Grantor.
"License" shall mean any Patent License, Trademark License,
Copyright License or other franchise agreement, license or sublicense to which
any Grantor is a party, including those listed on Schedule III.
"Obligations" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"Patent License" shall mean any written agreement, now or hereafter
in effect, granting to any third party any right to make, use or sell any
invention on which a Patent, now or hereafter owned by any Grantor or which
any Grantor otherwise has the right to license, is in existence, or granting
to any Grantor any right to make, use or sell any invention on which a Patent,
now or hereafter owned by any third party, is in existence, and all rights of
any Grantor under any such agreement.
"Patents" shall mean all of the following now owned or hereafter
acquired by any Person: (a) all letters patent of the United States or Canada,
all registrations and recordings thereof, and all applications for letters
patent of the United States or Canada, including registrations, recordings and
pending applications in the United States Patent and Trademark Office or any
similar office in Canada, including those listed on Schedule IV, and (b) all
reissues, continuations, divisions, continuations-in-part, renewals or
extensions thereof, and the inventions disclosed or claimed therein, including
the right to make, use and/or sell the inventions disclosed or claimed
therein.
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"Perfection Certificate" shall mean a certificate substantially in
the form of Annex 1 (or any other form approved by the Collateral Agent),
completed and supplemented with the schedules and attachments contemplated
thereby, and duly executed by a Financial Officer and the chief legal officer
of the Parent Borrower.
"Proceeds" shall mean all "proceeds" as such term is defined in
Article 9 of the NY UCC and, in any event, shall include with respect to any
Grantor any consideration received from the sale, exchange, license, lease or
other disposition of any asset or property that constitutes Collateral, any
value received as a consequence of the possession of any Collateral and any
payment received from any insurer or other person or entity as a result of the
destruction, loss, theft, damage or other involuntary conversion of whatever
nature of any asset or property which constitutes Collateral, and shall
include, (a) any claim of any Grantor against any third party for (and the
right to ▇▇▇ and recover for and the rights to damages or profits due or
accrued arising out of or in connection with) (i) past, present or future
infringement of any Patent now or hereafter owned by any Grantor, or licensed
under a Patent License, (ii) past, present or future infringement or dilution
of any Trademark now or hereafter owned by any Grantor or licensed under a
Trademark License or injury to the goodwill associated with or symbolized by
any Trademark now or hereafter owned by any Grantor, (iii) past, present or
future breach of any License and (iv) past, present or future infringement of
any Copyright now or hereafter owned by any Grantor or licensed under a
Copyright License and (b) any and all other amounts from time to time paid or
payable under or in connection with any of the Collateral.
"Secured Parties" shall mean (a) the Lenders, (b) the Administrative
Agent, (c) the Collateral Agent, (d) the Issuing Bank, (e) each counterparty
to a Swap Agreement with a Loan Party the obligations under which constitute
Obligations, (f) the beneficiaries of each indemnification obligation
undertaken by any Grantor under any Loan Document, (g) each lender in respect
of overdrafts and related liabilities owed to any of the Lenders (or any
Affiliates thereof) and arising from treasury, depositary and cash management
services or in connection with any automated clearinghouse transfers of funds
and (h) the permitted successors and assigns of each of the foregoing.
"Securities" shall mean any obligations of an issuer or any shares,
participations or other interests in an issuer or in property or an enterprise
of an issuer which (a) are represented by a certificate representing a
security in bearer or registered form, or the transfer of which may be
registered upon books maintained for that purpose by or on behalf of the
issuer, (b) are one of a class or series or by its terms is divisible into a
class or series of shares, participations, interests or obligations and (c)(i)
are, or are of a type, dealt with or traded on securities exchanges or
securities markets or (ii) are a medium for investment and by their terms
expressly provide that they are a security governed by Article 8 of the
Uniform Commercial Code.
"Securities Account" shall mean an account to which a Financial
Asset is or may be credited in accordance with an agreement under which the
Person maintaining the account undertakes to treat the Person for whom the
account is maintained as entitled to exercise rights that comprise the
Financial Asset.
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"Security Entitlements" shall mean the rights and property interests
of an Entitlement Holder with respect to a Financial Asset.
"Security Interest" shall have the meaning assigned to such term in
Section 2.01.
"Security Intermediary" shall mean (a) a clearing corporation or (b)
a Person, including a bank or broker, that in the ordinary course of its
business maintains securities accounts for others and is acting in that
capacity.
"Trademark License" shall mean any written agreement, now or
hereafter in effect, granting to any third party any right to use any
Trademark now or hereafter owned by any Grantor or which any Grantor otherwise
has the right to license, or granting to any Grantor any right to use any
Trademark now or hereafter owned by any third party, and all rights of any
Grantor under any such agreement.
"Trademarks" shall mean all of the following now owned or hereafter
acquired by any Person: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names,
trade styles, trade dress, logos, other source or business identifiers,
designs and general intangibles of like nature, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
registration and recording applications filed in connection therewith,
including registrations and registration applications in the United States
Patent and Trademark Office, any State of the United States, Canada or any
Province of Canada, and all extensions or renewals thereof, including those
listed on Schedule V, (b) all goodwill associated therewith or symbolized
thereby and (c) all other assets, rights and interests that uniquely reflect
or embody such goodwill.
SECTION 1.03. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
ARTICLE II
Security Interest
SECTION 2.01. Security Interest.
(a) Each Grantor hereby bargains, sells, conveys, assigns, sets
over, mortgages, pledges, hypothecates and transfers to the Collateral Agent,
and hereby grants to the Collateral Agent, for the ratable benefit of the
Secured Parties, a security interest (the "Security Interest") in all of the
following property now owned or hereafter acquired by such Grantor or in which
such Grantor now has or at any time in future may acquire any right, title or
interest (collectively, the "Collateral"), as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations:
(i) all Accounts Receivable;
(ii) all Chattel Paper;
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(iii) all Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all cash and cash accounts;
(x) all Investment Property;
(xi) all books and records pertaining to the Collateral;
(xii) all Fixtures;
(xiii) all Letter-of-credit rights;
(xiv) all commercial tort claims listed on Schedule VI;
(xv) all Goods (other than Consumer Goods and Farm Products); and
(xvi) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing, provided, however, that
Collateral shall not include with respect to any Grantor, any item of
property to the extent the grant by such Grantor of a security interest
pursuant to this Agreement in such Grantor's right, title and interest in
such item of property is prohibited by an applicable enforceable
contractual obligation (including but not limited to a Capital Lease
Obligation) or requirement of law or would give any other Person the
enforceable right to terminate its obligations with respect to such item
of property and provided, further, that the limitation in the foregoing
proviso shall not affect, limit, restrict or impair the grant by any
Grantor of a security interest pursuant to this Agreement in any money or
other amounts due or to become due under any Account, contract, agreement
or General Intangible.
(b) Each Grantor hereby irrevocably authorizes the Collateral Agent,
at any time and from time to time to file in any relevant jurisdiction any
initial financing statements with respect to the Collateral or any part
thereof and amendments thereto that indicate the Collateral as all assets of
such Grantor, or words of similar effect, or as being of an equal or lesser
scope or with greater detail, and that contain the information required by
Article 9 of the Uniform Commercial Code of each applicable jurisdiction for
the filing of any financing statement or amendment, including whether such
Grantor is an organization, the type of organization and any organizational
identification number issued to such Grantor. Each Grantor agrees to provide
such information to the Collateral Agent promptly upon request.
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Each Grantor also ratifies its authorization for the Collateral
Agent to file in any relevant jurisdiction any initial financing statements or
amendments thereto if filed prior to the date hereof.
The Collateral Agent is further authorized to file with the United
States Patent and Trademark Office or United States Copyright Office (or any
successor office or any similar office in Canada) such documents as may be
necessary or advisable for the purpose of perfecting, confirming, continuing,
enforcing or protecting the Security Interest granted by each Grantor, without
the signature of any Grantor (but, prior to the occurrence of any Event of
Default or Default, the Collateral Agent shall provide notice of such filing
to such Grantor), and naming any Grantor or the Grantors as debtors and the
Collateral Agent as secured party.
SECTION 2.02. No Assumption of Liability. The Security Interest is
granted as security only and shall not subject the Collateral Agent or any
other Secured Party to, or in any way alter or modify, any obligation or
liability of any Grantor with respect to or arising out of the Collateral.
ARTICLE III
Representations and Warranties
The Grantors jointly and severally represent and warrant to the
Collateral Agent and the Secured Parties that:
SECTION 3.01. Title and Authority. Each Grantor has good and valid
rights in and title to the Collateral with respect to which it has purported
to grant a Security Interest hereunder and has full power and authority to
grant to the Collateral Agent the Security Interest in such Collateral
pursuant hereto and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement, without the consent or approval
of any other Person other than any consent or approval which has been obtained
or the failure of which to obtain could not reasonably be expected to have a
Material Adverse Effect.
SECTION 3.02. Filings.
(a) The Perfection Certificate has been duly prepared, completed and
executed and the information set forth therein is correct and complete.
Uniform Commercial Code financing statements, as applicable, or other
appropriate filings, recordings or registrations containing a description of
the Collateral have been delivered to the Collateral Agent for filing in each
governmental, municipal or other office specified in Schedule 6 to the
Perfection Certificate, which are all the filings, recordings and
registrations (other than filings, recordings and registrations required to be
made in the United States Patent and Trademark Office and the United States
Copyright Office (or any similar office in Canada) in order to perfect the
Security Interest in Collateral consisting of United States (or Canadian)
Patents, United States Trademarks and United States Copyrights) that are
necessary to publish notice of and protect the validity of and to establish a
legal, valid and perfected security interest in favor of the Collateral Agent
(for the ratable benefit of the Secured Parties) in respect of all Collateral
in which the Security Interest may be perfected by filing, recording or
registration in the United States (or any
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political subdivision thereof), and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary in any
such jurisdiction, except as provided under applicable law with respect to the
filing of continuation statements and such filings, recordings and
registrations as may be necessary to perfect the Security Interest as a result
of any event described in Section 5.03 of the Credit Agreement.
(b) Each Grantor represents and warrants that fully executed
security agreements in the form hereof (or a fully executed short-form
agreement in form and substance reasonably satisfactory to the Collateral
Agent) and containing a description of all Collateral consisting of
Intellectual Property shall have been received and recorded within 10 days
after execution of this Agreement with respect to United States Patents,
United States registered Trademarks (and Trademarks for which United States
registration applications are pending) and United States registered Copyrights
by the United States Patent and Trademark Office and the United States
Copyright Office, in each case pursuant to 35 U.S.C. ss. 261, 15 U.S.C. ss.
1060 or 17 U.S.C. ss. 205 and the regulations thereunder (or in any similar
office in Canada within the time period prescribed by applicable law and
regulations), as applicable, to protect the validity of and to establish a
legal, valid and perfected security interest in favor of the Collateral Agent
(for the ratable benefit of the Secured Parties) in respect of all Collateral
consisting of Patents, Trademarks and Copyrights in which a security interest
may be perfected by filing, recording or registration in the United States or
Canada (or any political subdivision of either) and no further or subsequent
filing, refiling, recording, rerecording, registration or reregistration is
necessary (other than such actions as are necessary to perfect the Security
Interest with respect to any Collateral consisting of Patents, Trademarks and
Copyrights (or registration or application for registration thereof) acquired
or developed after the date hereof).
SECTION 3.03. Validity of Security Interest. The Security Interest
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Obligations, (b) subject to the
filings described in Section 3.02, a perfected security interest in all
Collateral in which a security interest may be perfected by filing, recording
or registering a financing statement or analogous document in the United
States or Canada (or any political subdivision of either) pursuant to the
Uniform Commercial Code or other applicable law in such jurisdictions and (c)
a security interest that shall be perfected in all Collateral in which a
security interest may be perfected in the United States Patent and Trademark
Office and the United States Copyright Office upon the receipt and recording
of this Agreement with the United States Patent and Trademark Office and the
United States Copyright Office, as applicable, within the period provided in
Section 3.02(b) pursuant to 35 U.S.C. ss. 261, 15 U.S.C. ss. 1060 or 17 U.S.C.
ss. 205 and otherwise as may be required pursuant to the laws of any other
necessary jurisdiction. The Security Interest is and shall be prior to any
other Lien on any of the Collateral, other than Liens expressly permitted to
be prior to the Security Interest pursuant to Section 6.03 of the Credit
Agreement and subject only to (i) the Senior Claims and (ii) the Carve-Out
Expenses limited to the Carve-Out Amount.
SECTION 3.04. Absence of Other Liens. The Collateral is owned by the
Grantors free and clear of any Lien, except for Liens expressly permitted
pursuant to Section 6.03 of the Credit Agreement. No Grantor has filed or
consented to the filing of (a) any financing statement or analogous document
under the Uniform Commercial Code or any other applicable laws covering any
Collateral, (b) any assignment in which any Grantor assigns any
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Collateral or any security agreement or similar instrument covering any
Collateral in the United States Patent and Trademark Office or the United
States Copyright Office or (c) any assignment in which any Grantor assigns any
Collateral or any security agreement or similar instrument covering any
Collateral with any foreign governmental, municipal or other office, which
financing statement or analogous document is still in effect, except, in each
case, for Liens expressly permitted pursuant to Section 6.03 of the Credit
Agreement.
ARTICLE IV
Covenants
SECTION 4.01. Records. Each Grantor agrees to maintain, at its own
cost and expense, such complete and accurate records with respect to the
Collateral owned by it as is consistent with its current practices and in
accordance with such prudent and standard practices used in industries that
are the same as or similar to those in which such Grantor is engaged, but in
any event to include complete accounting records indicating all payments and
proceeds received with respect to any part of the Collateral, and, at such
time or times as the Collateral Agent may reasonably request, promptly to
prepare and deliver to the Collateral Agent a duly certified schedule or
schedules in form and detail reasonably satisfactory to the Collateral Agent
showing the identity, amount and location of any and all Collateral.
SECTION 4.02. Protection of Security. Each Grantor shall, at its own
cost and expense, take any and all actions necessary to defend title to the
Collateral against all persons and to defend the Security Interest of the
Collateral Agent in the Collateral and the priority thereof against any Lien
not expressly permitted pursuant to Section 6.03 of the Credit Agreement.
SECTION 4.03. Further Assurances. Each Grantor agrees, at its own
expense, to execute, acknowledge, deliver and cause to be duly filed all such
further instruments and documents and take all such actions as the Collateral
Agent may from time to time reasonably request to better assure, preserve,
protect and perfect the Security Interest and the rights and remedies created
hereby, including the payment of any fees and taxes required in connection
with the execution and delivery of this Agreement, the granting of the
Security Interest and the filing of any financing statements or other
documents in connection herewith or therewith. If any amount payable under or
in connection with any of the Collateral shall be or become evidenced by any
promissory note or other instrument, such note or instrument shall be
immediately pledged and delivered to the Collateral Agent, duly endorsed in a
manner satisfactory to the Collateral Agent.
Without limiting the generality of the foregoing, each Grantor
hereby authorizes the Collateral Agent, with prompt notice thereof to the
Grantors, to supplement this Agreement by supplementing Schedule II, III, IV
or V or adding additional schedules hereto to specifically identify any
registered asset or item that may constitute Copyrights, Patents or
Trademarks; provided, however, that any Grantor shall have the right,
exercisable within 30 days after it has been notified by the Collateral Agent
of the specific identification of such Collateral, to advise the Collateral
Agent in writing of any inaccuracy of the representations and warranties made
by such Grantor hereunder with respect to such Collateral. Each Grantor agrees
that it will use its
11
best efforts to take such action as shall be necessary in order that all
representations and warranties hereunder shall be true and correct with
respect to such Collateral within 30 days after the date it has been notified
by the Collateral Agent of the specific identification of such Collateral.
SECTION 4.04. Inspection and Verification. Subject to the
limitations set forth in Section 5.09 of the Credit Agreement, any Agent and
such Persons as such Agent may reasonably designate shall have the right, at
the Grantors' own cost and expense, to inspect the Collateral, all records
related thereto (and to make extracts and copies from such records) and the
premises upon which any of the Collateral is located, to discuss the Grantors'
affairs with the officers of the Grantors and their independent accountants
and to verify under reasonable procedures the validity, amount, quality,
quantity, value, condition and status of, or any other matter relating to, the
Collateral, including, in the case of Accounts or Collateral in the possession
of any third party, by contacting Account Debtors or the third person
possessing such Collateral for the purpose of making such a verification. The
Agents shall have the absolute right to share any information it gains from
such inspection or verification with any Secured Party (it being understood
that any such information shall be deemed to be "Information" subject to the
provisions of Section 10.12 of the Credit Agreement).
SECTION 4.05. Taxes; Encumbrances. The Collateral Agent may
discharge past due taxes, assessments, charges, fees, Liens, security
interests or other encumbrances at any time levied or placed on the Collateral
and not permitted pursuant to Section 6.03 of the Credit Agreement, and may
pay for the maintenance and preservation of the Collateral to the extent any
Grantor fails to do so as required by the Credit Agreement or this Agreement,
and each Grantor jointly and severally agrees to reimburse the Collateral
Agent on demand for any payment made or any expense incurred by the Collateral
Agent pursuant to the foregoing authorization; provided, however, that nothing
in this Section 4.05 shall be interpreted as excusing any Grantor from the
performance of, or imposing any obligation on the Collateral Agent or any
Secured Party to cure or perform, any covenants or other promises of any
Grantor with respect to taxes, assessments, charges, fees, Liens, security
interests or other encumbrances and maintenance as set forth herein or in the
other Loan Documents.
SECTION 4.06. Assignment of Security Interest. If at any time any
Grantor shall take a security interest in any property of an Account Debtor or
any other Person to secure payment and performance of an Account, such Grantor
shall promptly assign such security interest to the Collateral Agent. Such
assignment need not be filed of public record unless necessary to continue the
perfected status of the security interest against creditors of and transferees
from the Account Debtor or other Person granting the security interest.
SECTION 4.07. Continuing Obligations of the Grantors. Each Grantor
shall remain liable to observe and perform all the conditions and obligations
to be observed and performed by it under each contract, agreement or
instrument relating to the Collateral, all in accordance with the terms and
conditions thereof, and each Grantor jointly and severally agrees to indemnify
and hold harmless the Collateral Agent and the Secured Parties from and
against any and all liability for such performance.
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SECTION 4.08. Use and Disposition of Collateral. None of the
Grantors shall make or permit to be made an assignment, pledge or
hypothecation of the Collateral or shall grant any other Lien in respect of
the Collateral, except as expressly permitted by Section 6.03 of the Credit
Agreement. Unless and until the Collateral Agent shall notify the Grantors
that (i) an Event of Default shall have occurred and be continuing and (ii)
during the continuance thereof the Grantors shall not sell, convey, lease,
assign, transfer or otherwise dispose of any Collateral (which notice may be
given by telephone if promptly confirmed in writing), the Grantors may use and
dispose of the Collateral in any lawful manner not inconsistent with the
provisions of this Agreement, the Credit Agreement or any other Loan Document.
Without limiting the generality of the foregoing, each Grantor agrees that it
shall not permit any Inventory to be in the possession or control of any
warehouseman, bailee, agent or processor at any time, other than Inventory
that is in transit by any means, unless such warehouseman, bailee, agent or
processor shall have been notified of the Security Interest and each Grantor
shall, to the extent not otherwise addressed to Collateral Agent's reasonable
satisfaction in the Interim Order and the Final Order, use commercially
reasonable efforts to obtain a Bailee Letter from such warehouseman, bailee,
agent or processor.
SECTION 4.09. Limitation on Modification of Accounts. None of the
Grantors will, without the Collateral Agent's prior written consent, grant any
extension of the time of payment of any of the Accounts Receivable,
compromise, compound or settle the same for less than the full amount thereof,
release, wholly or partly, any Person liable for the payment thereof or allow
any credit or discount whatsoever thereon, other than extensions, credits,
discounts, compromises or settlements granted or made in the ordinary course
of business and consistent with its current practices and in accordance with
such prudent and standard practices used in industries that are the same as or
similar to those in which such Grantor is engaged.
SECTION 4.10. Insurance. The Grantors, at their own expense, shall
maintain or cause to be maintained insurance covering physical loss or damage
to the Inventory and Equipment in accordance with Section 5.07 of the Credit
Agreement. Each Grantor irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the
Collateral Agent) as such Grantor's true and lawful agent (and
attorney-in-fact) for the purpose, during the continuance of an Event of
Default, of making, settling and adjusting claims in respect of Collateral
under policies of insurance, endorsing the name of such Grantor on any check,
draft, instrument or other item of payment for the proceeds of such policies
of insurance and for making all determinations and decisions with respect
thereto. In the event that any Grantor at any time or times shall fail to
obtain or maintain any of the policies of insurance required hereby or to pay
any premium in whole or part relating thereto, the Collateral Agent may,
without waiving or releasing any obligation or liability of the Grantors
hereunder or any Event of Default, in its sole discretion, obtain and maintain
such policies of insurance and pay such premium and take any other actions
with respect thereto as the Collateral Agent deems reasonably advisable. All
sums disbursed by the Collateral Agent in connection with this Section 4.10,
including reasonable attorneys' fees, court costs, expenses and other charges
relating thereto, shall be payable, upon demand, by the Grantors to the
Collateral Agent and shall be additional Obligations secured hereby.
SECTION 4.11. Legend. Each Grantor shall legend, in form and manner
reasonably satisfactory to the Collateral Agent, its Accounts Receivable and
its books, records
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and documents evidencing or pertaining thereto with an appropriate reference
to the fact that such Accounts Receivable have been assigned to the Collateral
Agent for the benefit of the Secured Parties and that the Collateral Agent has
a security interest therein.
SECTION 4.12. Covenants Regarding Patent, Trademark and Copyright
Collateral.
(a) Each Grantor agrees that it will not, nor will it permit any of
its licensees to, do any act, or omit to do any act, whereby any Patent which
is material to the conduct of such Grantor's business may become invalidated
or dedicated to the public, and agrees, to the extent practicable, that it
shall continue to ▇▇▇▇ any products covered by a Patent with the relevant
patent number as necessary and sufficient to establish and preserve its
maximum rights under applicable patent laws.
(b) Each Grantor (either itself or through its licensees or its
sublicensees) will, for each Trademark material to the conduct of such
Grantor's business, (i) maintain such Trademark in full force free from any
claim of abandonment or invalidity for non-use, (ii) maintain the quality of
products and services offered under such Trademark, (iii) display such
Trademark with notice of Federal or foreign registration to the extent
necessary and sufficient to establish and preserve its maximum rights under
applicable law and (iv) not knowingly use or knowingly permit the use of such
Trademark in violation of any third party rights.
(c) Each Grantor (either itself or through licensees) will, for each
work covered by a material Copyright, continue to publish, reproduce, display,
adopt and distribute the work with appropriate copyright notice as necessary
and sufficient to establish and preserve its maximum rights under applicable
copyright laws.
(d) Each Grantor shall notify the Collateral Agent promptly if it
knows that any Patent, Trademark or Copyright material to the conduct of its
business may become abandoned, lost or dedicated to the public, or of any
adverse determination or development (including the institution of, or any
such determination or development in, any proceeding in the United States
Patent and Trademark Office or United States Copyright Office or any similar
office in Canada) regarding such Grantor's ownership of any Patent, Trademark
or Copyright, its right to register the same, or to keep and maintain the
same.
(e) In no event shall any Grantor, either itself or through any
agent, employee, licensee or designee, file an application for any Patent,
Trademark or Copyright (or for the registration of any Trademark or Copyright)
with the United States Patent and Trademark Office, United States Copyright
Office or any office or agency in any political subdivision of the United
States or any similar office in Canada, unless it (i) in the case of any
Patent or Trademark, promptly informs the Collateral Agent and (ii) in the
case of any Copyright, gives five (5) Business Days prior written notice
thereof to the Collateral Agent, and, upon request of the Collateral Agent,
executes and delivers any and all agreements, instruments, documents and
papers as the Collateral Agent may request to evidence the Collateral Agent's
security interest in such Patent, Trademark or Copyright, each Grantor hereby
appoints the Collateral Agent as its attorney-in-fact to execute and file such
writings for the foregoing purposes (and, prior to the
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occurrence of any Event of Default or Default, such Grantor shall be notified
of such filing), all acts of such attorney being hereby ratified and
confirmed; such power, being coupled with an interest, is irrevocable.
(f) Each Grantor will take all necessary steps that are consistent
with the practice in any proceeding before the United States Patent and
Trademark Office, United States Copyright Office or any office or agency in
any political subdivision of the United States or any similar office in
Canada, to maintain and pursue each material application relating to the
Patents, Trademarks and/or Copyrights (and to obtain the relevant grant or
registration) and to maintain each issued Patent and each registration of the
Trademarks and Copyrights that is material to the conduct of any Grantor's
business, including timely filings of applications for renewal, affidavits of
use, affidavits of incontestability and payment of maintenance fees, and, if
consistent with good business judgment, to initiate opposition, interference
and cancelation proceedings against third parties.
(g) In the event that any Grantor has reason to believe that any
Collateral consisting of a Patent, Trademark or Copyright material to the
conduct of any Grantor's business has been or is about to be infringed,
misappropriated or diluted by a third party, such Grantor promptly shall
notify the Collateral Agent and shall, if consistent with good business
judgment, promptly ▇▇▇ for infringement, misappropriation or dilution and to
recover any and all damages for such infringement, misappropriation or
dilution, and take such other actions as are appropriate under the
circumstances to protect such Collateral.
(h) Upon and during the continuance of an Event of Default, each
Grantor shall use its reasonable best efforts to obtain all requisite consents
or approvals by the licensor of each Copyright License, Patent License or
Trademark License to effect the assignment of all of such Grantor's right,
title and interest thereunder to the Collateral Agent or their designees for
the benefit of the Secured Parties.
SECTION 4.13. Deposit Accounts. Each Grantor (other than Pliant
Packaging of Canada, LLC) will, on or before the Collateral Documentation
Date, enter into control agreements in form and substance reasonably
satisfactory to the Collateral Agent with each depository bank (other than the
Collateral Agent) with which it maintains any deposit accounts and thereafter
shall cause all cash held by such Grantor to be maintained in such accounts.
SECTION 4.14. Commercial Tort Claims. If any Grantor shall at any
time hold or acquire a commercial tort claim in an amount reasonably estimated
to exceed $1,000,000, the Grantor shall promptly notify the Collateral Agent
thereof in a writing signed by such Grantor including a summary description of
such claim and grant to the Collateral Agent in such writing a security
interest therein and in the proceeds thereof, all upon the terms of this
Agreement, with such writing to be in form and substance reasonably
satisfactory to the Collateral Agent.
SECTION 4.15. Electronic Chattel Paper and Transferable Records. If
any Grantor at any time holds or acquires an interest in any electronic
chattel paper or any "transferable record," as that term is defined in Section
201 of the Federal Electronic Signatures in Global and National Commerce Act,
or in Section 16 of the Uniform Electronic Transactions Act as in effect in
any relevant jurisdiction, in an amount exceeding $1,000,000 such Grantor
15
shall promptly notify the Collateral Agent thereof and, at the request of the
Collateral Agent, shall take such action as the Collateral Agent may
reasonably request to vest in the Collateral Agent control under NY UCC
Section 9-105 of such electronic chattel paper or control under Section 201 of
the Federal Electronic Signatures in Global and National Commerce Act or, as
the case may be, Section 16 of the Uniform Electronic Transactions Act, as so
in effect in such jurisdiction, of such transferable record. The Collateral
Agent agrees with such Grantor that the Collateral Agent will arrange,
pursuant to procedures reasonably satisfactory to the Collateral Agent and so
long as such procedures will not result in the Collateral Agent's loss of
control, for the Grantor to make alterations to the electronic chattel paper
or transferable record permitted under NY UCC Section 9-105 or, as the case
may be, Section 201 of the Federal Electronic Signatures in Global and
National Commerce Act or Section 16 of the Uniform Electronic Transactions Act
for a party in control to allow without loss of control, unless an Event of
Default has occurred and is continuing or would occur after taking into
account any action by such Grantor with respect to such electronic chattel
paper or transferable record.
SECTION 4.16. Letter-of-Credit Rights. If any Grantor is at any time
a beneficiary under a letter of credit now or hereafter issued in favor of
such Grantor in an amount exceeding $1,000,000, such Grantor shall promptly
notify the Collateral Agent thereof and, at the request and option of the
Collateral Agent, such Grantor shall, pursuant to an agreement in form and
substance reasonably satisfactory to the Collateral Agent, either (i) arrange
for the issuer and any confirmer of such letter of credit to consent to an
assignment to the Collateral Agent of the proceeds of any drawing under the
letter of credit or (ii) arrange for the Collateral Agent to become the
transferee beneficiary of the letter of credit, with the Collateral Agent
agreeing, in each case, that the proceeds of any drawing under the letter of
credit are to be paid to the applicable Grantor unless an Event of Default has
occurred or is continuing.
ARTICLE V
Collections
SECTION 5.01. Cash Management Accounts.
(a) On or before the Effective Date, each Grantor shall have entered
into arrangements, reasonably satisfactory to the Collateral Agent, pursuant
to which (i) such Grantor's existing cash management system held by the
Pre-Petition Collateral Agent under the Pre-Petition Loan Agreement shall have
been assigned to such Grantor or released by the Pre-Petition Collateral
Agent, (ii) all cash receipts received in respect of Collateral of Loan
Parties (other than the Canadian Guarantors) will be transmitted to the Cash
Concentration Account on each Business Day (it being understood that the
Collateral Agent must have a first priority Lien on all cash receipts under,
and pursuant to, the Interim Order, the Canadian Interim Order, the Final
Order and the Canadian Final Order).
(b) Each Grantor (other than Pliant Packaging of Canada, LLC) will
establish and maintain, on or before the Collateral Documentation Date, (i)
one Cash Concentration Account and (ii) one or more Collection Deposit
Accounts, in the case of this clause (ii), with the Collateral Agent or with
any financial institution selected by such Grantor that is reasonably
16
satisfactory to the Collateral Agent. Each financial institution with which a
Collection Deposit Account is maintained is referred to herein as a
"Collection Deposit Bank".
(c) Each Grantor (other than Pliant Packaging of Canada, LLC),
commencing on the Effective Date, will deposit on each Business Day all Daily
Receipts into either (i) a Collection Deposit Account or (ii) a Cash
Concentration Account. Each Grantor shall use all reasonable efforts to
prevent any funds that are not Daily Receipts from being deposited into, or
otherwise commingled with, the funds held in the Collection Deposit Accounts
or the Cash Concentration Accounts.
(d) On each Business Day, all collected funds on deposit in each
Collection Deposit Account will be transferred to the applicable Cash
Concentration Account to the extent provided in the applicable Collection
Deposit Letter Agreement.
(e) On each Business Day, all collected funds on deposit in the Cash
Concentration Accounts will be transferred to the Collateral Proceeds Account
to be applied by the Administrative Agent, on behalf of the Borrowers, to
prepay Revolving Loans, Swingline Loans and Protective Advances in the manner
provided in Section 2.10 of the Credit Agreement, until all outstanding
Protective Advances, Swingline Loans and Revolving Loans have been repaid, and
thereafter to be transferred to the General Funds Account, subject to
paragraph (f) below.
(f) No Grantor shall have any control over, or any right or power to
withdraw any funds on deposit in, any Collection Deposit Account or Cash
Concentration Account; provided, however, that any Grantor may instruct any
Collection Deposit Bank to withdraw funds from its Collection Deposit Account
to honor ACH instructions of such Grantor to transfer funds to the Cash
Concentration Account. The Parent Borrower may at any time withdraw any funds
contained in the General Funds Account for use, subject to the provisions of
the Credit Agreement, for general corporate purposes.
(g) Upon the occurrence and during the continuance of an Event of
Default, any funds held in the Collection Deposit Accounts, the Cash
Concentration Accounts or the Collateral Proceeds Account may be applied as
provided in Section 2.17(b) of the Credit Agreement so long as an Event of
Default is continuing. The Collateral Agent will not be required to transfer
any funds from the Collateral Proceeds Account to the General Funds Account
until all Events of Default are cured or waived.
(h) All payments by any Grantor into any Collection Deposit Account
or Cash Concentration Account pursuant to this Article V, whether in the form
of cash, checks, notes, drafts, bills of exchange, money orders or otherwise,
shall be deposited in the relevant Collection Deposit Account or Cash
Concentration Account in precisely the form in which received (but with any
endorsements of such Grantor necessary for deposit or collection), and until
they are so deposited such payments shall be held in trust by such Grantor for
and as the property of the Collateral Agent.
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SECTION 5.02. Collections.
(a) Each Grantor agrees promptly to notify and direct each Account
Debtor and every other Person obligated to make payments with respect to the
Accounts Receivable or Inventory to make all such payments directly to a
Collection Deposit Account or the applicable Cash Concentration Account
(subject to the proviso in the following sentence). Each Grantor shall use all
reasonable efforts to cause each Account Debtor and every other Person
identified in the preceding sentence to make all payments with respect to the
Accounts Receivable or Inventory either directly to a Collection Deposit
Account or a Cash Concentration Account; provided that Credit Card Payments
shall be made directly to the Cash Concentration Account.
(b) In the event that a Grantor (other than Pliant Packaging of
Canada, LLC) directly receives any Daily Receipts, notwithstanding the
arrangements for payment directly into the Collection Deposit Accounts
pursuant to Section 5.02, such remittances shall be held for the benefit of
the Collateral Agent and the Secured Parties and shall be segregated from
other funds of such Grantor, subject to the Security Interest granted hereby,
and such Grantor shall cause such remittances and payments to be deposited
into a Collection Deposit Account or a Cash Concentration Account, as
applicable, as soon as practicable after such Grantor's receipt thereof.
(c) Without the prior written consent of the Collateral Agent, no
Grantor shall, under any circumstances whatsoever, change the general
instructions given to Account Debtors and other Persons obligated to make
payments with respect to the Accounts Receivable or Inventory regarding the
deposit of payments with respect to the Accounts Receivable or Inventory in a
Collection Deposit Account or a Cash Concentration Account, as applicable.
Each Grantor shall, and the Collateral Agent hereby authorizes each Grantor
to, enforce and collect all amounts owing with respect to the Accounts
Receivable or Inventory for the benefit and on behalf of the Collateral Agent
and the other Secured Parties; provided, however, that such privilege may at
the option of the Collateral Agent be terminated upon the occurrence and
during the continuance of an Event of Default.
ARTICLE VI
Power of Attorney
Each Grantor irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the
Collateral Agent ) as such Grantor's true and lawful agent and
attorney-in-fact, and in such capacity the Collateral Agent shall have the
right, with power of substitution for each Grantor and in each Grantor's name
or otherwise, for the use and benefit of the Collateral Agent and the Secured
Parties, upon the occurrence and during the continuance of an Event of Default
(a) to receive, endorse, assign and/or deliver any and all notes, acceptances,
checks, drafts, money orders or other evidences of payment relating to the
Collateral or any part thereof; (b) to demand, collect, receive payment of,
give receipt for and give discharges and releases of all or any of the
Collateral; (c) to sign the name of any Grantor on any invoice or ▇▇▇▇ of
lading relating to any of the Collateral; (d) to send verifications of
Accounts Receivable to any Account Debtor; (e) to commence and prosecute any
and all suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect or otherwise realize on all or any of the
Collateral or to enforce any rights in respect of any
18
Collateral; (f) to settle, compromise, compound, adjust or defend any actions,
suits or proceedings relating to all or any of the Collateral; (g) to notify,
or to require any Grantor to notify, Account Debtors to make payment directly
to the Collateral Agent; and (h) to use, sell, assign, transfer, pledge, make
any agreement with respect to or otherwise deal with all or any of the
Collateral, and to do all other acts and things necessary to carry out the
purposes of this Agreement, as fully and completely as though the Collateral
Agent were the absolute owner of the Collateral for all purposes; provided,
however, that nothing herein contained shall be construed as requiring or
obligating the Collateral Agent or any Secured Party to make any commitment or
to make any inquiry as to the nature or sufficiency of any payment received by
the Collateral Agent or any Secured Party, or to present or file any claim or
notice, or to take any action with respect to the Collateral or any part
thereof or the moneys due or to become due in respect thereof or any property
covered thereby, and no action taken or omitted to be taken by the Collateral
Agent or any Secured Party with respect to the Collateral or any part thereof
shall give rise to any defense, counterclaim or offset in favor of any Grantor
or (unless such action is the result of gross negligence or willful
misconduct) to any claim or action against the Collateral Agent or any Secured
Party. It is understood and agreed that the appointment of the Collateral
Agent as the agent and attorney-in-fact of the Grantors for the purposes set
forth above is coupled with an interest and is irrevocable. The provisions of
this Section shall in no event relieve any Grantor of any of its obligations
hereunder or under any other Loan Document with respect to the Collateral or
any part thereof or impose any obligation on the Collateral Agent or any
Secured Party to proceed in any particular manner with respect to the
Collateral or any part thereof, or in any way limit the exercise by the
Collateral Agent or any Secured Party of any other or further right which it
may have on the date of this Agreement or hereafter, whether hereunder, under
any other Loan Document, by law or otherwise.
ARTICLE VII
Remedies
SECTION 7.01. Remedies upon Default. Upon the occurrence and during
the continuance of an Event of Default, each Grantor agrees to deliver each
item of Collateral to the Collateral Agent on demand, and subject to the terms
of the Interim Order and the Final Order, it is agreed that the Collateral
Agent shall have the right to take any of or all the following actions at the
same or different times: (a) with respect to any Collateral consisting of
Intellectual Property, on demand, to cause the Security Interest to become an
assignment, transfer and conveyance of any of or all such Collateral by the
applicable Grantors to the Collateral Agent, or to license or sublicense,
whether general, special or otherwise, and whether on an exclusive or
non-exclusive basis, any such Collateral throughout the world on such terms
and conditions and in such manner as the Collateral Agent shall determine
(other than in violation of any then-existing licensing or contractual
arrangements to the extent that waivers cannot be obtained), and (b)
notwithstanding the provisions of Section 362 of the Bankruptcy Code, with or
without legal process and with or without prior notice or demand for
performance, to take possession of the Collateral and without liability for
trespass to enter any premises where the Collateral may be located for the
purpose of taking possession of or removing the Collateral and, generally, to
exercise any and all rights afforded to a secured party under the Uniform
Commercial Code or other applicable law and, pursuant to the Interim Order and
the Final Order, the automatic stay of Section 362 of the Bankruptcy Code or
the Canadian Stay Order shall be modified and vacated to
19
permit Collateral Agent to exercise its remedies under this Agreement and the
Loan Documents, without further application or motion to, or order from, the
Bankruptcy Court or the Canadian Court; provided, however, notwithstanding
anything to the contrary contained herein, Collateral Agent shall be permitted
to exercise any remedy in the nature of a liquidation of, or foreclosure on,
any interest of any Grantor in the Collateral only upon three (3) Business
Days' prior written notice to such Grantor and counsel approved by the
Bankruptcy Court for the Committee. Without limiting the generality of the
foregoing, each Grantor agrees that the Collateral Agent shall have the right,
subject to the mandatory requirements of applicable law, to sell or otherwise
dispose of all or any part of the Collateral, at public or private sale or at
any broker's board or on any securities exchange, for cash, upon credit or for
future delivery as the Collateral Agent shall deem appropriate. The Collateral
Agent shall be authorized at any such sale (if it deems it advisable to do so)
to restrict the prospective bidders or purchasers to persons who will
represent and agree that they are purchasing the Collateral for their own
account for investment and not with a view to the distribution or sale
thereof, and upon consummation of any such sale the Collateral Agent shall
have the right to assign, transfer and deliver to the purchaser or purchasers
thereof the Collateral so sold. Each such purchaser at any such sale shall
hold the property sold absolutely, free from any claim or right on the part of
any Grantor, and each Grantor hereby waives (to the extent permitted by law)
all rights of redemption, stay and appraisal which such Grantor now has or may
at any time in the future have under any rule of law or statute now existing
or hereafter enacted. Upon the occurrence and during the continuance of an
Event of Default and the exercise by the Collateral Agent of its rights and
remedies under this Agreement and the other Loan Documents, the Grantors shall
assist Collateral Agent in effecting a sale or other disposition of the
Collateral upon such terms as are designed to maximize the proceeds obtainable
from such sale or other disposition.
The Collateral Agent shall give the Grantors 10 days' prior written
notice (which each Grantor agrees is reasonable notice within the meaning of
Section 9-611 of the NY UCC or its equivalent in other jurisdictions) of the
Collateral Agent's intention to make any sale of Collateral. Such notice, in
the case of a public sale, shall state the time and place for such sale and,
in the case of a sale at a broker's board or on a securities exchange, shall
state the board or exchange at which such sale is to be made and the day on
which the Collateral, or portion thereof, will first be offered for sale at
such board or exchange. Any such public sale shall be held at such time or
times within ordinary business hours and at such place or places as the
Collateral Agent may fix and state in the notice (if any) of such sale. At any
such sale, the Collateral, or portion thereof, to be sold may be sold in one
lot as an entirety or in separate parcels, as the Collateral Agent may (in its
sole and absolute discretion) determine. The Collateral Agent shall not be
obligated to make any sale of any Collateral if it shall determine not to do
so, regardless of the fact that notice of sale of such Collateral shall have
been given. The Collateral Agent may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Collateral Agent shall not incur any liability in case any
such purchaser or purchasers shall fail to take up and pay for the Collateral
so sold and, in case of any such failure, such Collateral may be sold again
upon like notice. At any public (or, to the extent permitted by law, private)
sale made pursuant to this Section, any Secured Party
20
may bid for or purchase, free (to the extent permitted by law) from any right
of redemption, stay, valuation or appraisal on the part of any Grantor (all
said rights being also hereby waived and released to the extent permitted by
law), the Collateral or any part thereof offered for sale and may make payment
on account thereof by using any claim then due and payable to such Secured
Party from any Grantor as a credit against the purchase price, and such
Secured Party may, upon compliance with the terms of sale, hold, retain and
dispose of such property without further accountability to any Grantor
therefor. For purposes hereof, a written agreement to purchase the Collateral
or any portion thereof shall be treated as a sale thereof; the Collateral
Agent shall be free to carry out such sale pursuant to such agreement and no
Grantor shall be entitled to the return of the Collateral or any portion
thereof subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default shall
have been remedied and the Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the Collateral Agent
may proceed by a suit or suits at law or in equity to foreclose this Agreement
and to sell the Collateral or any portion thereof pursuant to a judgment or
decree of a court or courts having competent jurisdiction or pursuant to a
proceeding by a court-appointed receiver.
SECTION 7.02. Grant of License to Use Intellectual Property. For the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Article at such time as the Collateral Agent shall be lawfully entitled
to exercise such rights and remedies, each Grantor hereby grants to the
Collateral Agent an irrevocable, non-exclusive license (exercisable without
payment of royalty or other compensation to the Grantors) to the extent that
such license does not violate any then existing licensing arrangements (to the
extent that waivers cannot be obtained) to use, license or sub-license any of
the Collateral consisting of Intellectual Property now owned or hereafter
acquired by such Grantor, and wherever the same may be located, and including
in such license reasonable access to all media in which any of the licensed
items may be recorded or stored and to all computer software and programs used
for the compilation or printout thereof and sufficient rights of quality
control in favor of Grantor to avoid the invalidation of the Trademarks
subject to the license. The use of such license by the Collateral Agent shall
be exercised, at the option of the Collateral Agent, upon the occurrence and
during the continuation of an Event of Default; provided that any license,
sub-license or other transaction entered into by the Collateral Agent in
accordance herewith shall be binding upon the Grantors notwithstanding any
subsequent cure of an Event of Default.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Notices. All communications and notices hereunder
shall (except as otherwise expressly permitted herein) be in writing and given
as provided in Section 10.01 of the Credit Agreement. All communications and
notices hereunder to any Grantor shall be given to it at its address or
telecopy number set forth on Schedule I, with a copy to the Parent Borrower.
SECTION 8.02. Security Interest Absolute. All rights of the
Collateral Agent hereunder, the Security Interest and all obligations of the
Grantors hereunder shall be absolute and unconditional irrespective of (a) any
lack of validity or enforceability of the Credit
21
Agreement, any other Loan Document, any agreement with respect to any of the
Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Credit Agreement, any other
Loan Document or any other agreement or instrument, (c) any exchange, release
or non-perfection of any Lien on other collateral, or any release or amendment
or waiver of or consent under or departure from any guarantee, securing or
guaranteeing all or any of the Obligations, or (d) any other circumstance that
might otherwise constitute a defense available to, or a discharge of, any
Grantor in respect of the Obligations or this Agreement.
SECTION 8.03. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Secured Parties and shall survive the making by the Lenders of the Loans, and
the execution and delivery to the Lenders of any notes evidencing such Loans,
regardless of any investigation made by the Lenders or on their behalf, and
shall continue in full force and effect until this Agreement shall terminate.
SECTION 8.04. Binding Effect; Several Agreement. This Agreement
shall become effective as to any Grantor when a counterpart hereof executed on
behalf of such Grantor shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Grantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of
such Grantor, the Collateral Agent and the other Secured Parties and their
respective successors and assigns, except that no Grantor shall have the right
to assign or transfer its rights or obligations hereunder or any interest
herein or in the Collateral (and any such assignment or transfer shall be
void) except as expressly contemplated by this Agreement or the Credit
Agreement. This Agreement shall be construed as a separate agreement with
respect to each Grantor and may be amended, modified, supplemented, waived or
released with respect to any Grantor without the approval of any other Grantor
and without affecting the obligations of any other Grantor hereunder.
SECTION 8.05. Successors and Assigns. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of any Grantor or the Collateral Agent that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
SECTION 8.06. Collateral Agent's Expenses; Indemnification.
(a) Each Grantor jointly and severally agrees to pay upon demand to
the Collateral Agent the amount of any and all reasonable expenses, including
the reasonable fees, disbursements and other charges of its counsel and of any
experts or agents, which the Collateral Agent may incur in connection with (i)
the administration of this Agreement, (ii) the custody or preservation of, or
the sale of, collection from or other realization upon any of the Collateral,
(iii) the exercise, enforcement or protection of any of the rights of the
Collateral Agent hereunder or (iv) the failure of any Grantor to perform or
observe any of the provisions hereof.
22
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Grantor jointly and severally agrees to indemnify
the Collateral Agent and the other Indemnitees against, and hold each of them
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable fees, disbursements and other charges of
counsel, incurred by or asserted against any of them arising out of, in any
way connected with, or as a result of, the execution, delivery or performance
of this Agreement or any claim, litigation, investigation or proceeding
relating hereto or to the Collateral, whether or not any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses have resulted from the gross negligence or willful misconduct
of such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be
additional Obligations secured hereby and by the other Security Documents. The
provisions of this Section 8.06 shall remain operative and in full force and
effect regardless of the termination of this Agreement or any other Loan
Document, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term
or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Collateral Agent or any Lender. All
amounts due under this Section 8.06 shall be payable on written demand
therefor.
SECTION 8.07. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.08. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Collateral Agent
hereunder and of the Collateral Agent, the Issuing Bank, the Administrative
Agent, the other Agents and the Lenders under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provisions of this Agreement or any other
Loan Document or consent to any departure by any Grantor therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on any
Grantor in any case shall entitle such Grantor or any other Grantor to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except (i) pursuant to an agreement or agreements in
writing entered into by the Collateral Agent and the Grantor or Grantors with
respect to which such waiver, amendment or modification is to apply, subject
to any consent required in accordance with Section 10.02 of the Credit
Agreement.
SECTION 8.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY
23
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.09.
SECTION 8.10. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8.11. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract (subject to
Section 8.04), and shall become effective as provided in Section 8.04.
Delivery of an executed signature page to this Agreement by facsimile
transmission or other electronic transmission shall be effective as delivery
of a manually executed counterpart hereof.
SECTION 8.12. Headings. Article and Section headings used herein are
for the purpose of reference only, are not part of this Agreement and are not
to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 8.13. Jurisdiction; Consent to Service of Process. (a) Each
Grantor hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of the Bankruptcy Court in any action
or proceeding arising out of or relating to this Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in the
Bankruptcy Court; provided, however that the Collateral Agent and the Grantors
acknowledge that any appeals from the Bankruptcy Court may have to be heard by
a court other than the Bankruptcy Court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that
the Collateral Agent, the Administrative Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against any Grantor or its properties in
the courts of any jurisdiction.
24
(b) Each Grantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in the Bankruptcy Court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 8.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 8.14. Termination.
(a) This Agreement and the Security Interest shall continue in
effect (notwithstanding the fact that from time to time there may be no
Obligations outstanding) until (i) the Credit Agreement has terminated
pursuant to its express terms and (ii) all of the Obligations (other than
contingent obligations for which no claim has been made) have been
indefeasibly paid and performed in full (or with respect to any outstanding
Letters of Credit, a cash deposit has been delivered to the Administrative
Agent as required by the Credit Agreement) and no commitments of the Agents or
the Lenders which would give rise to any Obligations are outstanding. Upon
payment in full in cash of the outstanding Obligations and the expiration or
termination of the Commitments, the security interest granted hereby shall
terminate and all rights to the Collateral shall revert to the Grantors or any
other Person entitled thereto. Upon such termination, the Administrative Agent
will authorize the filing of appropriate UCC termination statements to
terminate such security interests and shall, at the expense of the Grantors,
execute and deliver to such Grantor such documents as such Grantor shall
reasonably request to evidence the termination of such security interests or
the release of such Collateral, as applicable.
(b) A Grantor shall automatically be released from its obligations
hereunder and the Security Interest in the Collateral of such Grantor shall be
automatically released in the event that all the capital stock of such Grantor
shall be sold, transferred or otherwise disposed of to a Person that is not an
Affiliate of the Parent Borrower in accordance with the terms of the Credit
Agreement; provided that the Required Lenders shall have consented to such
sale, transfer or other disposition (to the extent required by the Credit
Agreement) and the terms of such consent did not provide otherwise.
(c) Upon any sale or other transfer by any Grantor of any Collateral
that is permitted under the Credit Agreement, provided that the Required
Lenders shall have consented to such transaction (to the extent required by
the Credit Agreement) and the terms of such consent did not provide otherwise,
or upon the effectiveness of any written consent to the release of the
security interest granted hereby in any Collateral pursuant to Section 10.02
of the Credit Agreement, the security interest in such Collateral shall be
automatically released.
(d) In connection with any termination or release pursuant to
paragraph (a), (b) or (c) above, the Collateral Agent shall execute and
deliver to the Grantors, at the Grantors' expense, all UCC termination
statements and similar documents which the Grantor shall
25
reasonably request to evidence such termination or release. Any execution and
delivery of termination statements or release documents pursuant to this
Section 8.14 shall be without recourse to or warranty by the Collateral Agent.
SECTION 8.15. Additional Grantors. Upon execution and delivery by
the Collateral Agent and a Subsidiary of an instrument in the form of Annex 2,
such Subsidiary shall become a Grantor hereunder with the same force and
effect as if originally named as a Grantor herein. The execution and delivery
of any such instrument shall not require the consent of any Grantor hereunder.
The rights and obligations of each Grantor hereunder shall remain in full
force and effect notwithstanding the addition of any new Grantor as a party to
this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
26
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
GRANTORS: PLIANT CORPORATION
By:
----------------------------------
Name:
Title:
PLIANT CORPORATION INTERNATIONAL
By:
----------------------------------
Name:
Title:
PLIANT FILM PRODUCTS OF MEXICO, INC.
By:
----------------------------------
Name:
Title:
PLIANT PACKAGING OF CANADA, LLC
By:
----------------------------------
Name:
Title:
PLIANT SOLUTIONS CORPORATION
By:
----------------------------------
Name:
Title:
DOMESTIC SECURITY AGREEMENT
UNIPLAST HOLDINGS INC.
By:
----------------------------------
Name:
Title:
UNIPLAST U.S., INC.
By:
----------------------------------
Name:
Title:
PLIANT INVESTMENT, INC.
By:
----------------------------------
Name:
Title:
ALLIANT COMPANY LLC
By:
----------------------------------
Name:
Title:
COLLATERAL AGENT: GENERAL ELECTRIC CAPITAL
CORPORATION, as Collateral Agent
By:
----------------------------------
Name:
Title:
DOMESTIC SECURITY AGREEMENT
GRANTORS
--------
Schedule II to the
Domestic Security Agreement
COPYRIGHTS
----------
[see attached]
Schedule III to the
Domestic Security Agreement
LICENSES
--------
[see attached]
Schedule IV to the
Domestic Security Agreement
PATENTS
-------
[see attached]
Schedule V to the
Domestic Security Agreement
TRADEMARKS
----------
[see attached]
COMMERCIAL TORT CLAIMS
----------------------
[see attached]
Annex I
To the Domestic Security Agreement
[Form Of]
PERFECTION CERTIFICATE
Reference is made to the Senior Secured, Super Priority, Priming
Debtor-In-Possession Credit Agreement dated as of January 4, 2006 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Parent Borrower, the Domestic Subsidiary Borrowers, the Lenders
party thereto (the "Lenders"), and General Electric Capital Corporation, as
Administrative Agent and Collateral Agent. Capitalized terms used but no
defined herein have the meanings assigned in the Domestic Security Agreement
(as defined in the "Credit Agreement").
SECTION 1. Names. (a) Set forth below is (i) the exact legal name of
each Grantor, as such name appears in its document of formation, (ii) each
other legal name each Grantor has had in the past five years and (iii) the
date of the relevant change:
Legal Name Former Name Date of Change
---------- ----------- --------------
(b) Except as set forth in Schedule 1 hereto, no Grantor has changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization. If any such change has occurred,
include in Schedule 1 the information required by Sections 1 and 2 of this
certificate as to each acquiree or constituent party to a merger or
consolidation.
(c) Set forth below is a list of all other names (including trade
names or similar appellations) used by each Grantor or any of its divisions or
other business units in connection with the conduct of its business or the
ownership of its properties at any time during the past five years:
Legal Name Other Name
---------- ----------
(d) Set forth below is (i) the organizational identification number,
if any, issued by the jurisdiction of formation of each Grantor that is a
registered organization and (ii) the Federal Taxpayer Identification Number of
each Grantor:
Legal Name Organizational No. Federal Taxpayer No.
---------- ------------------ --------------------
SECTION 2. Locations. (a) Set forth below opposite the name of each
Grantor that is a registered organization is the jurisdiction of formation of
such Grantor:
Legal Name Jurisdiction of Formation
---------- -------------------------
(b) Set forth below opposite the name of each Grantor is the address
and county of the chief executive office of such Grantor:
Legal Name Address of Chief Executive Office County
---------- --------------------------------- ------
(c) Set forth below opposite the name of each Grantor is the address
and county of all locations where such Grantor maintains any books or records
relating to any Accounts Receivable and/or General Intangibles (with each
location at which chattel paper, if any, is kept being indicated by an "*"):
Legal Name Address of Accounts Receivable County
---------- and/or General Intangibles ------
------------------------------
(d) Set forth below opposite the name of each Grantor is the address
and county of all locations where such Grantor maintains any Inventory,
Equipment and/or other Collateral not identified above:
Legal Name Address of Inventory, Zip Code
---------- Equipment and/or Other Collateral --------
---------------------------------
(e) Set forth below opposite the name of each Grantor is the address
and county of all the places of business of such Grantor not identified in
paragraph (a), (b), (c) or (d) above:
Legal Name Other Business Addresses Zip Code
---------- ------------------------ --------
(f) Set forth below opposite the name of each Grantor are the names,
addresses and counties of all Persons other than such Grantor that have
possession of any of the Collateral of such Grantor (with each such Person
that holds such Collateral subject to a Lien (including, but not limited to,
warehousemen's, mechanics' and other statutory liens) indicated by an "*"):
Legal Name Other Business Addresses Zip Code
---------- ------------------------ --------
SECTION 3. Unusual Transactions. All Accounts have been originated
by the Grantors and all Inventory has been acquired by the Grantors in the
ordinary course of business.
SECTION 4. File Search Reports. File search reports have been
obtained from each Uniform Commercial Code filing office identified with
respect to such Grantor in Section 2 hereof, and such search reports reflect
no liens against any of the Collateral other than those permitted under the
Credit Agreement.
SECTION 5. UCC Filings. UCC financing statements in substantially
the form of Schedule 5 hereto have been prepared for filing in the UCC filing
office and, in the case of fixture filings, the applicable County recorder's
office, in each jurisdiction identified with respect to such Grantor in
Section 2 and Section 10, as applicable, hereof.
SECTION 6. Schedule of Filings. Attached hereto as Schedule 6 is a
true and correct list, with respect to the filings described in Section 5
above, of each filing and the UCC filing office or, in the case of fixture
filings, the applicable County recorder's office, in which such filing is to
be made.
SECTION 7. Stock Ownership and Other Equity Interests. Attached
hereto as Schedule 7 is a true and correct list of all the Equity Interests of
each Grantor and the record and beneficial owners of such Equity Interests.
Also set forth on Schedule 7 is each equity investment of the Parent Borrower
and each Grantor that represents 50% or less of the equity of the entity in
which such investment was made.
SECTION 8. Debt Instruments. Attached hereto as Schedule 8 is a true
and correct list of all instruments, including any promissory notes, and other
evidence of indebtedness held by each Grantor that are required to be pledged
under the Domestic Security
Agreement, including all intercompany notes between the Parent Borrower and
any other Grantor or between any Grantor and any other Grantor.
SECTION 9. Advances. Attached hereto as Schedule 9 is (a) a true and
correct list of all advances made by the Parent Borrower to any Subsidiary of
the Parent Borrower (other than those identified on Schedule 8), which
advances will be on and after the date hereof evidenced by one or more
intercompany notes pledged to the Collateral Agent under the Domestic Security
Agreement and (b) a true and correct list of all unpaid intercompany transfers
of goods sold and delivered by or to the Parent Borrower or any Subsidiary of
the Parent Borrower.
SECTION 10. Mortgage Filings. Attached hereto as Schedule 10 is a
true and correct list, with respect to each Mortgaged Property, of (a) the
exact name of the Person that owns such property as such name appears in its
certificate of incorporation or other organizational document, (b) if
different from the name identified pursuant to clause (a), the exact name of
the current record owner of such property reflected in the records of the
filing office for such property identified pursuant to the following clause
and (c) the filing office in which a Mortgage with respect to such property
must be filed or recorded in order for the Collateral Agent to obtain a
perfected security interest therein.
SECTION 11. Intellectual Property. Attached hereto as Schedule 11(A)
in proper form for filing with the United States Patent and Trademark Office
or the Canadian Intellectual Property Office, as applicable, is a is a true
and correct list of each Grantor's Patents, Patent Licenses, Trademarks and
Trademark Licenses, including the name of the registered owner, registration
number and expiration date of each Patent, Patent License, Trademark and
Trademark License owned by any Grantor. Attached hereto as Schedule 11(B) in
proper form for filing with the United States Copyright Office or the Canadian
Intellectual Property Office, as applicable, is a true and correct list of
each Grantor's Copyrights and Copyright Licenses, including the name of the
registered owner, registration number and expiration date of each Copyright or
Copyright License owned by any Grantor.
SECTION 12. Commercial Tort Claims. Attached hereto as Schedule 12
is a true and correct list of commercial tort claims in excess of $250,000
held by any Grantor, including a brief description thereof.
SECTION 13. Deposit Accounts. Attached hereto as Schedule 13 is a
true and correct list of deposit accounts maintained by each Grantor,
including the name and address of the depositary institution, the type of
account, and the account number.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have duly executed this
certificate on this 4th day of January, 2006.
PLIANT CORPORATION
By:_________________________
Name:
Title:
Annex 2 to the
Domestic Security Agreement
SUPPLEMENT NO. __ dated as of __________, 20___, to the Domestic
Security Agreement (as amended, restated, supplemented or otherwise modified
from time to time, the "Domestic Security Agreement") dated as of January 4,
2006, among by each of the parties listed on the signature pages thereto and
those additional entities that thereafter become parties thereto (each a
"Grantor" and collectively, the "Grantors") and GENERAL ELECTRIC CAPITAL
CORPORATION, as Collateral Agent (in such capacity, the "Collateral Agent")
for the Secured Parties (as defined herein).
A. Reference is made to (a) the Senior Secured, Super Priority,
Priming Debtor-In-Possession Credit Agreement dated as of January 4, 2006 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Parent Borrower, the Domestic Subsidiary Borrowers, the
Lenders party thereto (the "Lenders"), and General Electric Capital
Corporation, as Administrative Agent and Collateral Agent, and (b) the
Guarantee Agreement dated as of January 4, 2006 (as amended, supplemented or
otherwise modified from time to time, the "Guarantee Agreement"), among the
Parent Borrower, the other Grantors and the Administrative Agent.
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Domestic Security
Agreement and the Credit Agreement.
C. The Grantors have entered into the Domestic Security Agreement in
order to induce the Lenders to make Loans and the Issuing Bank to issue
Letters of Credit. Section 8.15 of the Domestic Security Agreement provides
that additional Subsidiaries of the Parent Borrower may become Grantors under
the Domestic Security Agreement by execution and delivery of an instrument in
the form of this Supplement. The undersigned Subsidiary (the "New Grantor") is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Grantor under the Domestic Security Agreement in order
to induce the Lenders to make additional Loans and the Issuing Bank to issue
additional Letters of Credit and as consideration for Loans previously made
and Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Grantor agree as
follows:
SECTION 1. In accordance with Section 8.15 of the Domestic Security
Agreement, the New Grantor by its signature below becomes a Grantor under the
Domestic Security Agreement with the same force and effect as if originally
named therein as a Grantor and the New Grantor hereby (a) agrees to all the
terms and provisions of the Domestic Security Agreement applicable to it as a
Grantor thereunder and (b) represents and warrants that the representations
and warranties made by it as a Grantor thereunder are true and correct on and
as of the date hereof. In furtherance of the foregoing, the New Grantor, as
security for the payment and performance in full of the Obligations (as
defined in the Domestic Security Agreement), does hereby create and grant to
the Collateral Agent, its successors and assigns, for the benefit of the
Secured Parties, their successors and assigns, a security interest in and lien
on all of the New Grantor's right, title and interest in and to the Collateral
(as defined in the Domestic Security Agreement) of the New Grantor. Each
reference to a "Grantor" in the Domestic Security Agreement shall be deemed to
include the New Grantor. The Domestic Security Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Grantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute
a single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Grantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission or other electronic transmission shall be effective as delivery
of a manually signed counterpart of this Supplement.
SECTION 4. The New Grantor hereby represents and warrants that (a)
set forth on Schedule I attached hereto is a true and correct schedule of the
location of any and all Collateral of the New Grantor and (b) set forth under
or above its signature hereto, is the true and correct legal name of the New
Grantor, its jurisdiction of formation, its organizational identification
number (if any) and the location of the chief executive office of the New
Grantor.
SECTION 5. Except as expressly supplemented hereby, the Domestic
Security Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and in the Domestic Security Agreement shall not in any way
be affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
hereto shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in
writing and given as provided in Section 10.01 of the Credit Agreement. All
communications and notices hereunder to the New Grantor shall be given to it
at the address set forth under its signature below.
SECTION 9. The New Grantor agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
2
IN WITNESS WHEREOF, the New Grantor and the Collateral Agent have
duly executed this Supplement to the Domestic Security Agreement as of the day
and year first above written.
[Name Of New Grantor],
By:_________________________
Name:
Title:
Address:
Organizational I.D.:
GENERAL ELECTRIC CAPITAL
CORPORATION, as the Collateral Agent,
By:_________________________
Name:
Title: Duly Authorized Signatory
SCHEDULE I
to Supplement No.___ to the
Domestic Security Agreement
LOCATION OF COLLATERAL
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Description Location
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