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EXHIBIT 4.5
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AMENDED AND RESTATED
GUARANTEE AND COLLATERAL AGREEMENT
made by
VIASYSTEMS, INC.
VIASYSTEMS GROUP, INC.
VIASYSTEMS TECHNOLOGIES CORP.
VIASYSTEMS INTERNATIONAL, INC.
and other future Domestic Subsidiaries of VIASYSTEMS, INC.
in favor of
THE CHASE MANHATTAN BANK,
as Collateral Agent
Dated as of April __, 1997
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TABLE OF CONTENTS
SECTION 1. DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . 5
SECTION 2. GUARANTEES . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Rights of Contribution . . . . . . . . . . . . . . . . . . . . 6
2.3 No Subrogation . . . . . . . . . . . . . . . . . . . . . . . . 7
2.4 Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . 8
2.5 Guarantees Absolute and Unconditional . . . . . . . . . . . . 8
2.6 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . 10
2.7 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3. GRANT OF SECURITY INTEREST . . . . . . . . . . . . . . . . . . 11
SECTION 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 12
4.1 Representations in Credit Agreement . . . . . . . . . . . . . 12
4.2 Title; No Other Liens . . . . . . . . . . . . . . . . . . . . 12
4.3 Perfected First Priority Liens . . . . . . . . . . . . . . . . 12
4.4 Chief Executive Office . . . . . . . . . . . . . . . . . . . . 13
4.5 Inventory and Equipment . . . . . . . . . . . . . . . . . . . 13
4.6 Farm Products . . . . . . . . . . . . . . . . . . . . . . . . 13
4.7 Pledged Securities . . . . . . . . . . . . . . . . . . . . . . 13
4.8 Receivables . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.9 Intellectual Property . . . . . . . . . . . . . . . . . . . . 13
SECTION 5. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.1 Covenants in Credit Agreement . . . . . . . . . . . . . . . . 14
5.2 Delivery of Instruments and Chattel Paper . . . . . . . . . . 14
5.3 Maintenance of Insurance . . . . . . . . . . . . . . . . . . . 14
5.4 Payment of Obligations . . . . . . . . . . . . . . . . . . . . 14
5.5 Maintenance of Perfected Security Interest; Further Documentation 15
5.6 Changes in Locations, Name, etc. . . . . . . . . . . . . . . . 15
5.7 Pledged Securities . . . . . . . . . . . . . . . . . . . . . . 15
5.8 Receivables . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.9 Intellectual Property . . . . . . . . . . . . . . . . . . . . 16
SECTION 6. REMEDIAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 17
6.1 Certain Matters Relating to Receivables . . . . . . . . . . . 18
6.2 Communications with Obligors; Grantors Remain Liable . . . . . 18
6.3 Pledged Securities . . . . . . . . . . . . . . . . . . . . . . 19
6.4 Proceeds to be Turned Over to Collateral Agent . . . . . . . . 19
6.5 Application of Proceeds . . . . . . . . . . . . . . . . . . . 20
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6.6 Code and Other Remedies . . . . . . . . . . . . . . . . . . . 20
6.7 Registration Rights . . . . . . . . . . . . . . . . . . . . . 21
6.8 Waiver; Deficiency . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7. THE COLLATERAL AGENT . . . . . . . . . . . . . . . . . . . . . 22
7.1 Collateral Agent's Appointment as Attorney-in-Fact, etc. . . . 22
7.2 Duty of Collateral Agent . . . . . . . . . . . . . . . . . . . 24
7.3 Execution of Financing Statements . . . . . . . . . . . . . . 24
7.4 Authority of Collateral Agent . . . . . . . . . . . . . . . . 24
SECTION 8. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.1 Amendments in Writing . . . . . . . . . . . . . . . . . . . . 25
8.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.3 No Waiver by Course of Conduct; Cumulative Remedies . . . . . 25
8.4 Enforcement Expenses; Indemnification . . . . . . . . . . . . 25
8.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . 26
8.6 Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.9 Section Headings . . . . . . . . . . . . . . . . . . . . . . . 27
8.10 Integration . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . 27
8.12 Submission To Jurisdiction; Waivers . . . . . . . . . . . . . 27
8.13 Acknowledgements . . . . . . . . . . . . . . . . . . . . . . 28
8.14 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . 28
8.15 Additional Grantors . . . . . . . . . . . . . . . . . . . . . 28
8.16 Releases . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Schedules
Schedule 1 Notice Addresses of Guarantors
Schedule 2 Description of Pledged Securities
Schedule 3 Filings and Other Actions Required to Perfect
Security Interests
Schedule 4 Jurisdiction of Organization and Chief Executive Office
Schedule 5 Location of Inventory and Equipment
Schedule 6 Intellectual Property
Schedule 7 Existing Prior Liens
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AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT
AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT, dated as
of April __, 1997 made by each of the signatories hereto (together with any
other Person that may become a party hereto as provided herein, the
"Grantors"), in favor of THE CHASE MANHATTAN BANK, as Collateral Agent (in such
capacity, the "Collateral Agent") for the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Credit Agreement
dated as of April __, 1997 (as amended, modified, supplemented, restated and in
effect from time to time, the "Credit Agreement"), among Viasystems Group,
Inc., a Delaware corporation ("Holdings"), Viasystems, Inc., a Delaware
corporation (the "US Borrower"), Circo Craft Co., Inc., a Quebec corporation
(the "Canadian Borrower"), PCB Investments plc, a corporation organized under
the laws of England and Wales ("English Bidco"), Forward Group plc, a
corporation organized under the laws of England and Wales (the "English
Borrower"), any Future Foreign Subsidiary Borrowers which may from time to time
become parties thereto, the several banks and other financial institutions from
time to time parties thereto (the "Lenders"), The Chase Manhattan Bank of
Canada ("Chase Canada"), as administrative agent for the Canadian Lenders (in
such capacity, the "Canadian Agent"), Chase Manhattan International Limited, as
administrative agent for the English Lenders (in such capacity, the "English
Agent"), any Future Foreign Agent which may from time to time be appointed
hereunder and The Chase Manhattan Bank ("Chase"), as administrative agent for
the Lenders (in such capacity, the "Administrative Agent"), the Lenders have
severally agreed to make extensions of credit to the Borrowers upon the terms
and subject to the conditions set forth therein;
WHEREAS, the US Borrower and Holdings are members of an
affiliated group of companies;
WHEREAS, the proceeds of the extensions of credit under the
Credit Agreement will be used in part to enable the US Borrower to make
valuable transfers to one or more of the other Grantors in connection with the
operation of their respective businesses;
WHEREAS, the US Borrower and the other Grantors are engaged in
related businesses, and each such Grantor will derive substantial direct and
indirect benefit from the making of the extensions of credit under the Credit
Agreement; and
WHEREAS, it is a condition precedent to the effectiveness of the
Credit Agreement and the obligation of the Lenders to make their respective
extensions of credit to the Borrowers under the Credit Agreement, that the
Grantors shall have executed and delivered this Agreement to the Collateral
Agent for the ratable benefit of the Secured Parties;
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NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the Foreign Agents and the Lenders to enter into the
Credit Agreement and to make their respective extensions of credit to the
Borrowers thereunder, each Grantor hereby agrees with the Collateral Agent, for
the ratable benefit of the Secured Parties, that the existing guarantee and
collateral agreement dated as of November 26, 1996 made by Holdings, Viasystems
Technologies Corp. (f/k/a Circo Craft Technologies Inc.), a Delaware
corporation ("VTC"), and certain subsidiaries of VTC in favor of The Chase
Manhattan Bank, as collateral agent, shall be and hereby is amended and
restated in its entirety to read as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement, and the following terms which are defined in
the Uniform Commercial Code in effect in the State of New York on the date
hereof are used herein as so defined: Accounts, Chattel Paper, Documents,
Equipment, Farm Products, Instruments and Inventory.
(b) The following terms shall have the following meanings:
"Agreement": this Amended and Restated Guarantee and Collateral
Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by the
Collateral Agent as provided in Section 6.1 or 6.4.
"Copyrights": (i) all copyrights, whether published or
unpublished; now existing or hereafter created (including, without
limitation, those listed in Schedule 6), all registration and recordings
thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in
the United States Copyright Office, and (ii) all renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor
as licensor or licensee (including, without limitation, those listed on
Schedule 6), granting any right under any Copyright, including, without
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"General Intangibles": all "general intangibles" as such term is
defined in Section 9-106 of the Uniform Commercial Code in effect in the
State of New York on the date
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hereof and, in any event, shall include, without limitation, with
respect to any Grantor, all contracts, agreements, instruments and
indentures in any form, and portions thereof, to which such Grantor is a
party or under which such Grantor has any right, title or interest or to
which such Grantor or any property of such Grantor is subject, as the
same may from time to time be amended, supplemented or otherwise
modified, including, without limitation, (i) all rights of such Grantor
to receive moneys due and to become due to it thereunder or in
connection therewith, (ii) all rights of such Grantor to damages arising
thereunder and (iii) all rights of such Grantor to perform and to
exercise all remedies thereunder, in each case to the extent the grant
by such Grantor of a security interest pursuant to this Agreement in its
right, title and interest in such contract, agreement, instrument or
indenture is not prohibited by such contract, agreement, instrument or
indenture without the consent of any other party thereto, would not give
any other party to such contract, agreement, instrument or indenture the
right to terminate its obligations thereunder, or is permitted with
consent if all necessary consents to such grant of a security interest
have been obtained from the other parties thereto (it being understood
that the foregoing shall not be deemed to obligate such Grantor to
obtain such consents); provided, that the foregoing limitation shall not
affect, limit, restrict or impair the grant by such Grantor of a
security interest pursuant to this Agreement in any Receivable or any
money or other amounts due or to become due under any such contract,
agreement, instrument or indenture.
"Guarantor Obligations": with respect to any Guarantor, the
collective reference to (i) the Domestic Obligations and (ii) all
obligations and liabilities of such Guarantor which may arise under or
in connection with this Agreement or any other Loan Document to which
such Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Collateral Agent or to the Secured
Parties that are required to be paid by such Guarantor pursuant to the
terms of this Agreement or any other Loan Document).
"Guarantors": the collective reference to each Grantor other
than the US Borrower.
"Intellectual Property": the collective reference to the
Copyrights, the Copyright Licenses, the Patents, the Patent Licenses,
the Trademarks and the Trademark Licenses.
"Intercompany Note": any promissory note evidencing loans made
by any Grantor to Holdings or any of its Subsidiaries.
"Issuers": the collective reference to the Persons identified on
Schedule 2 as the issuers of the Pledged Securities and all Persons
which after the date hereof become subsidiaries of the US Borrower
(other than Foreign Subsidiaries of Foreign Subsidiaries).
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"Obligations": (i) in the case of the US Borrower, the Domestic
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Patents": (i) all letters patent of the United States or any
other country, all reissues and extensions thereof and all goodwill
associated therewith, including, without limitation, any of the
foregoing referred to in Schedule 6, and (ii) all applications for
letters patent of the United States or any other country and all
divisions, continuations and continuations-in-part thereof, including,
without limitation, any of the foregoing referred to in Schedule 6.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to any Grantor of any right to
manufacture, use or sell any invention covered by a Patent, including,
without limitation, any of the foregoing referred to in Schedule 6.
"Pledged Notes": all promissory notes listed on Schedule 2, all
Intercompany Notes and all other promissory notes issued to or held by
any Grantor (other than promissory notes issued in connection with
extensions of trade credit by any Grantor in the ordinary course of
business).
"Pledged Securities": the collective reference to the Pledged
Notes and the Pledged Stock.
"Pledged Stock": the shares of Capital Stock listed on Schedule
2, together with any other shares, stock certificates, options or rights
of any nature whatsoever in respect of the Capital Stock of any Issuer
that may be issued or granted to, or held by, any Grantor while this
Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section 9-
306(1) of the Uniform Commercial Code in effect in the State of New York
on the date hereof and, in any event, shall include, without limitation,
all dividends or other income from the Pledged Securities, collections
thereon or distributions or payments with respect thereto.
"Receivable": any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an
Instrument or Chattel Paper and whether or not it has been earned by
performance (including, without limitation, any Account).
"Securities Act": the Securities Act of 1933, as amended.
"Trademarks": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and all
goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications
in connection therewith, whether in the United States Patent and
Trademark
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Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision thereof,
or otherwise, including, without limitation, any of the foregoing
referred to in Schedule 6, and (ii) all renewals thereof.
"Trademark License": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred
to in Schedule 6.
1.2 Other Definitional Provisions. (a) The words "hereof,"
"herein," "hereto" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section and Schedule references are
to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral
or any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEES
2.1 Guarantees. (a) Domestic Obligations. (i) Each Domestic
Subsidiary of the US Borrower (each, a "Subsidiary Guarantor") hereby, jointly
and severally, unconditionally and irrevocably, guarantees to the Collateral
Agent, for the ratable benefit of the Secured Parties and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment
and performance by the US Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Domestic Obligations.
(ii) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Subsidiary Guarantor hereunder
and under the other Loan Documents shall in no event exceed the amount which
can be guaranteed by such Subsidiary Guarantor under applicable federal and
state laws relating to the insolvency of debtors (after giving effect to the
right of contribution established in Section 2.2).
(iii) Each Subsidiary Guarantor agrees that the Domestic Obligations
may at any time and from time to time exceed the amount of the liability of
such Subsidiary Guarantor hereunder without impairing the guarantee contained
in this Section 2.1(a) or affecting the rights and remedies of the Collateral
Agent or any Secured Party hereunder.
(iv) The guarantee contained in this Section 2.1(a) shall remain in
full force and effect until all the Domestic Obligations and the obligations of
each Guarantor under the guarantee contained in this Section 2.1(a) shall have
been satisfied by payment in full, no Accommodation shall be outstanding and
the Commitments shall be terminated, notwithstanding
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that from time to time during the term of the Credit Agreement the US Borrower
may be free from any Domestic Obligations.
(v) No payment made by the US Borrower, any of the Guarantors, any
other guarantor or any other Person or received or collected by the Collateral
Agent or any Secured Party from the US Borrower, any of the Guarantors, any
other guarantor or any other Person by virtue of any action or proceeding or
any set off or appropriation or application at any time or from time to time in
reduction of or in payment of the Domestic Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Subsidiary
Guarantor hereunder which shall, notwithstanding any such payment (other than
any payment made by such Subsidiary Guarantor in respect of the Domestic
Obligations or any payment received or collected from such Subsidiary Guarantor
in respect of the Domestic Obligations), remain liable for the Domestic
Obligations up to the maximum liability of such Subsidiary Guarantor hereunder
until the Domestic Obligations are paid in full, no Accomodation shall be
outstanding and the Commitments are terminated.
(b) Foreign Obligations. (i) Except as may be expressly set
forth in any Joinder Agreement with respect to any Future Foreign Subsidiary
Borrower, the US Borrower hereby unconditionally and irrevocably guarantees to
the Collateral Agent, for the ratable benefit of the applicable Secured Parties
and their respective successors, indorsees, transferees and assigns, the prompt
and complete payment and performance by each Foreign Subsidiary Borrower when
due (whether at the stated maturity, by acceleration or otherwise) of the
Foreign Obligations.
(ii) The guarantee contained in this Section 2.1(b) shall remain in
full force and effect until all the Foreign Obligations and the obligations of
the US Borrower under the guarantee contained in this Section 2.1(b) shall have
been satisfied by payment in full, no Accommodation shall be outstanding and
the Commitments shall be terminated, notwithstanding that from time to time
during the term of the Credit Agreement any Foreign Subsidiary Borrower may be
free from any Foreign Obligations.
(iii) No payment made by any Foreign Subsidiary Borrower, any other
guarantor or any other Person or received or collected by the Collateral Agent
or any Secured Party from any Foreign Subsidiary Borrower, any other guarantor
or any other Person by virtue of any action or proceeding or any set off or
appropriation or application at any time or from time to time in reduction of
or in payment of the Foreign Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of the US Borrower hereunder which
shall, notwithstanding any such payment (other than any payment made by the US
Borrower in respect of the Foreign Obligations or any payment received or
collected from the US Borrower in respect of the Foreign Obligations), remain
liable for the Foreign Obligations until the Foreign Obligations are paid in
full, no Accommodation shall be outstanding and the Commitments are terminated.
2.2 Rights of Contribution. Each Subsidiary Guarantor hereby
agrees that to the extent that a Subsidiary Guarantor shall have paid more than
its proportionate share of any
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payment made hereunder, such Subsidiary Guarantor shall be entitled to seek and
receive contribution from and against any other Subsidiary Guarantor hereunder
which has not paid its proportionate share of such payment. Each Subsidiary
Guarantor's right of contribution shall be subject to the terms and conditions
of Section 2.3. The provisions of this Section 2.2 shall in no respect limit
the obligations and liabilities of any Subsidiary Guarantor to the Collateral
Agent and the Secured Parties, and each Subsidiary Guarantor shall remain
liable to the Collateral Agent and the Secured Parties for the full amount
guaranteed by such Subsidiary Guarantor hereunder.
2.3 No Subrogation. (a) Notwithstanding any payment made by
any Subsidiary Guarantor hereunder or any set-off or application of funds of
any Subsidiary Guarantor by the Collateral Agent or any Secured Party, no
Subsidiary Guarantor shall be entitled to be subrogated to any of the rights of
the Collateral Agent or any Secured Party against the US Borrower or any other
Subsidiary Guarantor or any collateral security or guarantee or right of offset
held by the Collateral Agent or any Secured Party for the payment of the
Domestic Obligations, nor shall any Subsidiary Guarantor seek or be entitled to
seek any contribution or reimbursement from the US Borrower or any other
Subsidiary Guarantor in respect of payments made by such Subsidiary Guarantor
hereunder, until all amounts owing to the Collateral Agent and the Secured
Parties by the US Borrower on account of the Domestic Obligations are paid in
full, no Accommodation shall be outstanding and the Commitments are terminated.
If any amount shall be paid to any Subsidiary Guarantor on account of such
subrogation rights at any time when all of the Domestic Obligations shall not
have been paid in full, such amount shall be held by such Subsidiary Guarantor
in trust for the Collateral Agent and the Secured Parties, segregated from
other funds of such Subsidiary Guarantor, and shall, forthwith upon receipt by
such Subsidiary Guarantor, be turned over to the Collateral Agent in the exact
form received by such Subsidiary Guarantor (duly indorsed by such Subsidiary
Guarantor to the Collateral Agent, if required), to be applied against the
Domestic Obligations, whether matured or unmatured, in accordance with the
Sharing Agreement.
(b) Notwithstanding any payment made by the US Borrower
hereunder or any set-off or application of funds of the US Borrower by the
Collateral Agent or any Secured Party, the US Borrower shall not be entitled to
be subrogated to any of the rights of the Collateral Agent or any Secured Party
against any Foreign Subsidiary Borrower or any collateral security or guarantee
or right of offset held by the Collateral Agent or any Secured Party for the
payment of the Foreign Obligations, nor shall the US Borrower seek or be
entitled to seek any contribution or reimbursement from any Foreign Subsidiary
Borrower in respect of payments made by the US Borrower hereunder, until all
amounts owing to the Collateral Agent and the Secured Parties on account of the
Foreign Obligations are paid in full, no Accommodation shall be outstanding and
the Commitments are terminated. If any amount shall be paid on account of such
subrogation rights at any time when all of the Foreign Obligations shall not
have been paid in full, such amount shall be held by the US Borrower in trust
for the Collateral Agent and the Secured Parties, segregated from other funds
of the US Borrower and shall, forthwith upon receipt by the US Borrower, be
turned over to the Collateral Agent in the exact form received by the US
Borrower (duly indorsed by the US Borrower to the Collateral Agent, if
required),
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to be applied against the Foreign Obligations, whether matured or unmatured, in
accordance with the Sharing Agreement.
2.4 Amendments, etc. (a) Domestic Obligations. Each
Subsidiary Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Subsidiary Guarantor and without
notice to or further assent by any Subsidiary Guarantor, any demand for payment
of any of the Domestic Obligations made by the Collateral Agent or any Secured
Party may be rescinded by the Collateral Agent or such Secured Party and any of
the Domestic Obligations continued, and the Domestic Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended,
modified, accelerated, compromised, waived, surrendered or released by the
Collateral Agent or any Secured Party, and the Credit Agreement and the other
Loan Documents and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in
part, as the appropriate Secured Parties may deem advisable from time to time,
and any collateral security, guarantee or right of offset at any time held by
the Collateral Agent or any Secured Party for the payment of the Domestic
Obligations may be sold, exchanged, waived, surrendered or released. Neither
the Collateral Agent nor any Secured Party shall have any obligation to
protect, secure, perfect or insure any Lien at any time held by it as security
for the Domestic Obligations or for the guarantee contained in this Section 2
or any property subject thereto.
(b) Foreign Obligations. The US Borrower shall remain obligated
hereunder notwithstanding that, without any reservation of rights against the
US Borrower and without notice to or further assent by the US Borrower any
demand for payment of any of the Foreign Obligations made by the Collateral
Agent or any Secured Party may be rescinded by the Collateral Agent or such
Secured Party and any of the Foreign Obligations continued, and the Foreign
Obligations, or the liability of any other Person upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with
respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Collateral Agent or any Secured Party, and the Credit
Agreement, and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the appropriate Secured Parties may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Collateral Agent or any Secured Party for the
payment of the Foreign Obligations may be sold, exchanged, waived, surrendered
or released. Neither the Collateral Agent nor any Secured Party shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by
it as security for the Foreign Obligations or for the guarantee contained in
this Section 2 or any property subject thereto.
2.5 Guarantees Absolute and Unconditional. (a) Each Subsidiary
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Domestic Obligations and notice of or proof of reliance
by the Collateral Agent or any Secured Party upon
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the guarantee contained in this Section 2 or acceptance of the guarantee
contained in this Section 2; the Domestic Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon the guarantee contained
in this Section 2; and all dealings between the Credit Parties on the one hand,
and the Collateral Agent and the Secured Parties, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance upon
the guarantee contained in this Section 2. Each Subsidiary Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the US Borrower or any of the Subsidiary Guarantors with
respect to the Domestic Obligations. Each Subsidiary Guarantor understands and
agrees that its guarantee contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of the Credit Agreement or any other Loan
Document, any of the Domestic Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Collateral Agent or any Secured Party, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the US
Borrower against the Collateral Agent or any Secured Party, other than payment
in full of the Obligations, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the US Borrower or such Subsidiary Guarantor)
which constitutes, or might be construed to constitute, an equitable or legal
discharge of the US Borrower for the Domestic Obligations, or of such
Subsidiary Guarantor under the guarantee contained in this Section 2, in
bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Subsidiary
Guarantor, the Collateral Agent or any Secured Party may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and
remedies as it may have against the US Borrower, any other Guarantor or any
other Person or against any collateral security or guarantee for the Domestic
Obligations or any right of offset with respect thereto, and any failure by the
Collateral Agent or any Secured Party to make any such demand, to pursue such
other rights or remedies or to collect any payments from the US Borrower, any
other Guarantor or any other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release
of the US Borrower, any other Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not relieve any
Subsidiary Guarantor of any obligation or liability hereunder, and shall not
impair or affect the rights and remedies, whether express, implied or available
as a matter of law, of the Collateral Agent or any Secured Party against any
Subsidiary Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
(b) The US Borrower waives any and all notice of the creation,
renewal, extension or accrual of any of the Foreign Obligations and notice of
or proof of reliance by the Collateral Agent or any Secured Party upon the
guarantee contained in this Section 2 or acceptance of the guarantee contained
in this Section 2; the Foreign Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon the guarantee contained in this Section 2;
and all dealings between the Credit Parties on the one hand, and the Collateral
Agent and the
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Secured Parties, on the other hand, likewise shall be conclusively presumed to
have been had or consummated in reliance upon the guarantee contained in this
Section 2. The US Borrower waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon any Foreign Subsidiary
Borrower with respect to the Foreign Obligations. The US Borrower understands
and agrees that its guarantee contained in this Section 2 shall be construed as
a continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of the Credit Agreement, or any other Loan
Document, any of the Foreign Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Collateral Agent or any Secured Party, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by any
Foreign Subsidiary Borrower against the Collateral Agent or any Secured Party,
other than payment in full of the Obligations, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the US Borrower or such
Foreign Subsidiary Borrower) which constitutes, or might be construed to
constitute, an equitable or legal discharge of such Foreign Subsidiary Borrower
for the Foreign Obligations, or of the US Borrower under the guarantee
contained in this Section 2, in bankruptcy or in any other instance. When
making any demand hereunder or otherwise pursuing its rights and remedies
hereunder against the US Borrower, the Collateral Agent or any Secured Party
may, but shall be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against any Foreign Subsidiary
Borrower, any other Guarantor or any other Person or against any collateral
security or guarantee for the Foreign Obligations or any right of offset with
respect thereto, and any failure by the Collateral Agent or any Secured Party
to make any such demand, to pursue such other rights or remedies or to collect
any payments from such Foreign Subsidiary Borrower, any other Guarantor or any
other Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of such Foreign Subsidiary
Borrower, any other Guarantor or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve the US Borrower of
any obligation or liability hereunder, and shall not impair or affect the
rights and remedies, whether express, implied or available as a matter of law,
of the Collateral Agent or any Secured Party against the US Borrower. For the
purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
2.6 Reinstatement. (a) The guarantee of the Domestic
Obligations by each Subsidiary Guarantor contained in Section 2.1(a) shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Domestic Obligations is rescinded
or must otherwise be restored or returned by the Collateral Agent or any
Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the US Borrower or any Subsidiary Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the US Borrower or any Subsidiary Guarantor or
any substantial part of its property, or otherwise, all as though such payments
had not been made.
(b) The guarantee of any Foreign Obligations by the US Borrower
contained in Section 2.1(b) shall continue to be effective, or be reinstated,
as the case may be, if at any time
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payment, or any part thereof, of any of the Foreign Obligations is rescinded or
must otherwise be restored or returned by the Collateral Agent or any Secured
Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Foreign Subsidiary Borrower or the US Borrower, or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, any Foreign Subsidiary Borrower or the US
Borrower or any substantial part of its property, or otherwise, all as though
such payments had not been made.
2.7 Payments. (a) Each Subsidiary Guarantor hereby guarantees
that payments hereunder will be paid to the Administrative Agent without set-
off or counterclaim in the currency in which the Specified Obligations are
denominated at the office of the Administrative Agent located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(b) The US Borrower hereby guarantees that payments hereunder
will be paid to the Administrative Agent without set-off or counterclaim in the
currency in which the Specified Obligations are denominated at the office of
the Administrative Agent located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Collateral
Agent, and hereby grants to the Collateral Agent, for the ratable benefit of
the Secured Parties, a security interest in, all of the following property now
owned or at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the "Collateral"), as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of such Grantor's Obligations,:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Documents;
(d) all Equipment;
(e) all General Intangibles;
(f) all Instruments;
(g) all Intellectual Property;
(h) all Inventory;
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(i) all Pledged Securities;
(j) all books and records pertaining to the Collateral; and
(k) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the foregoing.
Notwithstanding the foregoing, "Collateral" shall not include,
with respect to any Grantor, any General Intangible or Intellectual Property to
the extent the grant by such Grantor of a security interest pursuant to this
Agreement in its rights under such General Intangible or Intellectual Property,
as the case may be, is prohibited by such General Intangible or Intellectual
Property, as the case may be, and the consent of applicable Persons has not
been obtained, provided that the foregoing limitation shall not affect, limit,
restrict or impair the grant by such Grantor of a security interest pursuant to
this Agreement in any Account or any money or other amounts due or to become
due under any such General Intangible or Intellectual Property, as the case may
be, to the extent provided in Section 9-318 of the Code as in effect on the
date hereof.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
the Credit Agreement and to induce the Lenders to make their respective
extensions of credit to the Borrowers thereunder, each Grantor hereby
represents and warrants to the Collateral Agent and each Secured Party that:
4.1 Representations in Credit Agreement. In the case of each
Subsidiary Guarantor, the representations and warranties set forth in Section 5
of the Credit Agreement as they relate to such Subsidiary Guarantor or to the
Loan Documents to which such Subsidiary Guarantor is a party, each of which is
hereby incorporated herein by reference, are true and correct, and the
Collateral Agent and each Secured Party shall be entitled to rely on each of
them as if they were fully set forth herein, provided that each reference in
each such representation and warranty to the US Borrower's knowledge shall, for
the purposes of this Section 4.1, be deemed to be a reference to such
Subsidiary Guarantor's knowledge.
4.2 Title; No Other Liens. Except for the security interest
granted to the Collateral Agent for the ratable benefit of the Secured Parties
pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Credit Agreement, such Grantor owns each item of the
Collateral free and clear of any and all Liens or claims of others. No
financing statement or other public notice with respect to all or any part of
the Collateral is on file or of record in any public office, except such as
have been filed in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, pursuant to this Agreement or as are permitted by the
Credit Agreement.
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4.3 Perfected First Priority Liens. The security interests
granted pursuant to this Agreement (a) that are capable of perfection pursuant
to the Code upon completion of the filings and other actions specified on
Schedule 3 (which, in the case of all filings and other documents referred to
on said Schedule, have been delivered to the Collateral Agent in completed and
duly executed form) will constitute valid perfected security interests in all
of the Collateral in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, as collateral security for such Grantor's Obligations,
enforceable in accordance with the terms hereof against all creditors of such
Grantor and any Persons purporting to purchase any Collateral from such Grantor
and (b) are prior to all other Liens on the Collateral in existence on the date
hereof except for Liens permitted by the Credit Agreement.
4.4 Chief Executive Office. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office is specified on Schedule 4.
4.5 Inventory and Equipment. On the date hereof, the Inventory
and the Equipment (other than mobile goods) are kept at the locations listed on
Schedule 5.
4.6 Farm Products. None of the Collateral constitutes, or is
the Proceeds of, Farm Products.
4.7 Pledged Securities. (a) The shares of Pledged Stock
pledged by such Grantor hereunder constitute all the issued and outstanding
shares of all classes of the Capital Stock of each Issuer owned by such
Grantor.
(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes, to the knowledge of
the Grantor that is the payee thereof, the legal, valid and binding obligation
of the obligor with respect thereto, enforceable in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered
in a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
(d) Such Grantor is the record and beneficial owner of, and has
good and marketable title to, the Pledged Securities pledged by it hereunder,
free of any and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement.
4.8 Receivables. No amount payable to such Grantor under or in
connection with any Receivable is evidenced by any Instrument or Chattel Paper
in excess of $1,000,000 which has not been delivered to the Collateral Agent.
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4.9 Intellectual Property. (a) Schedule 6 lists all
Intellectual Property owned by such Grantor in its own name on the date hereof.
(b) To the best of such Grantor's knowledge, each material
Copyright, Patent and Trademark is on the date hereof valid, subsisting,
unexpired, enforceable and has not been abandoned.
(c) Except as set forth in Schedule 6, none of the Copyrights,
Patents or Trademarks is on the date hereof the subject of any licensing or
franchise agreement.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of
any Copyright, Patent or Trademark in any respect that could reasonably be
expected to have a Material Adverse Effect.
(e) No action or proceeding is pending on the date hereof (i)
seeking to limit, cancel or question the validity of any material Copyright,
Patent or Trademark, or (ii) which, if adversely determined, would have a
material adverse effect on the value of any material Patent or Trademark.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Collateral Agent and
the Secured Parties that, from and after the date of this Agreement until the
Obligations shall have been paid in full, no Accommodation shall be outstanding
and the Commitments shall have terminated:
5.1 Covenants in Credit Agreement. In the case of each
Subsidiary Guarantor, such Subsidiary Guarantor shall take, or shall refrain
from taking, as the case may be, each action that is necessary to be taken or
not taken, as the case may be, so that no Default or Event of Default is caused
by the failure to take such action or to refrain from taking such action by
such Subsidiary Guarantor or any of its Subsidiaries.
5.2 Delivery of Instruments and Chattel Paper. If any amount
payable under or in connection with any of the Collateral shall be or become
evidenced by any Instrument or Chattel Paper in excess of $1,000,000, such
Instrument or Chattel Paper shall be immediately delivered to the Collateral
Agent, duly indorsed in a manner reasonably satisfactory to the Collateral
Agent, to be held as Collateral pursuant to this Agreement.
5.3 Maintenance of Insurance. Such Grantor will maintain
insurance policies insuring the Inventory and Equipment pursuant to and in
accordance with the Credit Agreement.
5.4 Payment of Obligations. Such Grantor will pay and discharge
or otherwise satisfy at or before maturity or before they become delinquent, as
the case may be, all taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of
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income or profits therefrom, as well as all claims of any kind (including,
without limitation, claims for labor, materials and supplies) against or with
respect to the Collateral, except that no such charge need be paid if the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings, reserves in conformity with GAAP with respect thereto
have been provided on the books of such Grantor and such proceedings could not
reasonably be expected to result in the sale, forfeiture or loss of any
material portion of the Collateral or any interest therein.
5.5 Maintenance of Perfected Security Interest; Further
Documentation. (a) Such Grantor shall maintain the security interest created
by this Agreement as a perfected security interest having at least the priority
described in Section 4.3 and shall defend such security interest against the
claims and demands of all Persons whomsoever.
(b) Upon reasonable request of the Collateral Agent, such
Grantor will furnish to the Collateral Agent and the Secured Parties from time
to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Collateral Agent may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written request
of the Collateral Agent, and at the sole expense of such Grantor, such Grantor
will promptly and duly execute and deliver such further instruments and
documents and take such further actions as the Collateral Agent may reasonably
request for the purpose of obtaining or preserving the full benefits of this
Agreement and of the rights and powers herein granted, including, without
limitation, the filing of any financing or continuation statements under the
Uniform Commercial Code (or other similar laws) in effect in any jurisdiction
with respect to the security interests created hereby.
5.6 Changes in Locations, Name, etc. Such Grantor will not,
except upon not less than 15 days' prior written notice to the Collateral Agent
and delivery to the Collateral Agent of (a) all additional executed financing
statements and other documents reasonably requested by the Collateral Agent to
maintain the validity, perfection and priority of the security interests
provided for herein and (b) if applicable, a written supplement to Schedule 5
showing any additional location at which Inventory or Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept at a
location other than those listed on Schedule 5;
(ii) change the location of its chief executive office from
that referred to in Section 4.4; or
(iii) change its name, identity or corporate structure to such
an extent that any financing statement filed by the Collateral Agent in
connection with this Agreement would become misleading.
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5.7 Pledged Securities. (a) If such Grantor shall become
entitled to receive or shall receive any stock certificate (including, without
limitation, any certificate representing a stock dividend or a distribution in
connection with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or rights in
respect of the Capital Stock of any Issuer, whether in addition to, in
substitution of, as a conversion of, or in exchange for, any shares of the
Pledged Stock, or otherwise in respect thereof, such Grantor shall accept the
same as the agent of the Collateral Agent and the Secured Parties, hold the
same in trust for the Collateral Agent and deliver the same forthwith to the
Collateral Agent in the exact form received, duly indorsed by such Grantor to
the Collateral Agent, if required, together with an undated stock power
covering such certificate duly executed in blank by such Grantor to be held by
the Collateral Agent, subject to the terms hereof, as additional collateral
security for the Obligations. Any sums paid upon or in respect of the Pledged
Securities upon the liquidation or dissolution of any Issuer shall be paid over
to the Collateral Agent to be held by it hereunder as additional collateral
security for the Obligations, and in case any distribution of capital shall be
made on or in respect of the Pledged Securities or any property shall be
distributed upon or with respect to the Pledged Securities pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant
to the reorganization thereof, the property so distributed shall, unless
otherwise subject to a perfected security interest in favor of the Collateral
Agent, be delivered to the Collateral Agent to be held by it hereunder as
additional collateral security for the Obligations. If any sums of money or
property so paid or distributed in respect of the Pledged Securities shall be
received by such Grantor, such Grantor shall, until such money or property is
paid or delivered to the Collateral Agent, hold such money or property in trust
for the Secured Parties, segregated from other funds of such Grantor, as
additional collateral security for the Obligations.
(b) In the case of each Grantor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to the
Pledged Securities issued by it and will comply with such terms insofar as such
terms are applicable to it, (ii) it will notify the Collateral Agent promptly
in writing of the occurrence of any of the events described in Section 5.7(a)
with respect to the Pledged Securities issued by it and (iii) the terms of
Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to
all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with
respect to the Pledged Securities issued by it.
5.8 Receivables. (a) Other than in the ordinary course of
business, or as otherwise permitted by the Loan Documents, such Grantor will
not (i) grant any extension of the time of payment of any Receivable, (ii)
compromise or settle any Receivable for less than the full amount thereof,
(iii) release, wholly or partially, any Person liable for the payment of any
Receivable, (iv) allow any credit or discount whatsoever on any Receivable or
(v) amend, supplement or modify any Receivable in any manner that could
materially or adversely affect the value thereof.
(b) Such Grantor will take all actions necessary to give notice
pursuant to the U.S. Assignment of Claims Act or such other analogous law if a
material portion of the total amount of the Receivables is owing to
Governmental Authorities.
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5.9 Intellectual Property. (a) Such Grantor (either itself or
through licensees) will (i) continue to use each material Trademark on each and
every trademark class of goods applicable to its current line as reflected in
its current catalogs, brochures and price lists in order to maintain such
Trademark in full force free from any claim of abandonment for non-use, (ii)
maintain as in the past the quality of products and services offered under such
Trademark, (iii) employ such Trademark with the appropriate notice of
registration, (iv) not adopt or use any ▇▇▇▇ which is confusingly similar or a
colorable imitation of such Trademark unless the Collateral Agent, for the
ratable benefit of the Secured Parties, shall obtain a perfected security
interest in such ▇▇▇▇ pursuant to this Agreement, and (v) not (and not permit
any licensee or sublicensee thereof to) do any act or knowingly omit to do any
act whereby such material Trademark may become invalidated.
(b) Such Grantor will not do any act, or omit to do any act,
whereby any material Patent may become abandoned or dedicated.
(c) Such Grantor (either itself or through licensees) (i) will
employ each material Copyright and (ii) will not (and will not permit any
licensee or sublicensee thereof to) do any act or knowingly omit to do any act
whereby any material portion of the Copyrights may become invalidated. Such
Grantor will not (either itself or through licensees) do any act whereby any
material portion of the Copyrights may become injected into the public domain.
(d) Such Grantor will notify the Collateral Agent immediately if
it knows, or has reason to know, that any application or registration relating
to any material Patent or Trademark may become abandoned or dedicated, or of
any adverse determination or development (including, without limitation, the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office or any court or tribunal in any
country) regarding such Grantor's ownership of any material Patent or Trademark
or its right to register the same or to keep and maintain the same.
(e) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States
Patent and Trademark Office, or any similar office or agency in any other
country or any political subdivision thereof, to maintain and pursue each
application (and to obtain the relevant registration) and to maintain each
registration of the material Patents and Trademarks, including, without
limitation, filing of applications for renewal, affidavits of use and
affidavits of incontestability.
(f) In the event that any material Patent or Trademark is
infringed, misappropriated or diluted by a third party, such Grantor shall (i)
take such actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Patent or Trademark and (ii) if such Patent or
Trademark is of material economic value, promptly notify the Collateral Agent
and the Secured Parties after it learns thereof and ▇▇▇ for infringement,
misappropriation or dilution, to seek injunctive relief where appropriate and
to recover any and all damages for such infringement, misappropriation or
dilution.
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SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) The
Collateral Agent hereby authorizes each Grantor to collect such Grantor's
Receivables, subject to the Collateral Agent's direction and control, and the
Collateral Agent may curtail or terminate said authority at any time after the
occurrence and during the continuance of an Event of Default. If required by
the Collateral Agent at any time after the occurrence and during the
continuance of an Event of Default, any payments of Receivables, when collected
by any Grantor, (i) shall be forthwith (and, in any event, within two Business
Days) deposited by such Grantor in the exact form received, duly indorsed by
such Grantor to the Collateral Agent if required, in a Collateral Account
maintained under the sole dominion and control of the Collateral Agent, subject
to withdrawal by the Collateral Agent for the account of the Secured Parties
only as provided in Section 6.5, and (ii) until so turned over, shall be held
by such Grantor in trust for the Collateral Agent and the Secured Parties,
segregated from other funds of such Grantor. Each such deposit of Proceeds of
Receivables shall be accompanied by a report identifying in reasonable detail
the nature and source of the payments included in the deposit.
(b) At the Collateral Agent's request, each Grantor shall
deliver to the Collateral Agent all original and other documents evidencing,
and relating to, the agreements and transactions which gave rise to the
Receivables, including, without limitation, all original orders, invoices and
shipping receipts.
6.2 Communications with Obligors; Grantors Remain Liable. (a)
The Collateral Agent in its own name or in the name of others may at any time
after the occurrence and during the continuance of an Event of Default
communicate with obligors under the Receivables to verify with them to the
Collateral Agent's reasonable satisfaction the existence, amount and terms of
any Receivables.
(b) Upon the request of the Collateral Agent at any time after
the occurrence and during the continuance of an Event of Default, each Grantor
shall notify obligors on the Receivables that the Receivables have been
assigned to the Collateral Agent for the ratable benefit of the Secured Parties
and that payments in respect thereof shall be made directly to the Collateral
Agent.
(c) Anything herein to the contrary notwithstanding, each
Grantor shall remain liable under each of the Receivables to observe and
perform all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise
thereto. Neither the Collateral Agent nor any Secured Party shall have any
obligation or liability under any Receivable (or any agreement giving rise
thereto) by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any Secured Party of any payment relating thereto, nor
shall the Collateral Agent or any Secured Party be obligated in any manner to
perform any of the obligations of any Grantor under or pursuant to any
Receivable (or any agreement giving rise thereto) to make any payment, to make
any inquiry as to the nature or the sufficiency of any
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payment received by it or as to the sufficiency of any performance by any party
thereunder, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
6.3 Pledged Securities. (a) Unless an Event of Default shall
have occurred and be continuing and the Collateral Agent shall have exercised
its right under Section 6.3(b), each Grantor shall be permitted to receive all
cash dividends paid in respect of the Pledged Stock and all payments made in
respect of the Pledged Notes, to the extent permitted in the Credit Agreement,
the Canadian Credit Agreement and to exercise all voting and corporate rights
with respect to the Pledged Securities; provided, however, that no vote shall
be cast or corporate right exercised or other action taken which, in the
Collateral Agent's reasonable judgment, would impair the Collateral or which
would be inconsistent with or result in any violation of any provision of the
Credit Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing, (i)
the Collateral Agent shall have the right to receive any and all cash
dividends, payments or other Proceeds paid in respect of the Pledged Securities
and make application thereof to the Obligations in accordance with the Sharing
Agreement, and (ii) any or all of the Pledged Securities may be registered in
the name of the Collateral Agent or its nominee, and the Collateral Agent or
its nominee may thereafter exercise (x) all voting, corporate and other rights
pertaining to such Pledged Securities at any meeting of shareholders of the
relevant Issuer or Issuers or otherwise and (y) any and all rights of
conversion, exchange, subscription and any other rights, privileges or options
pertaining to such Pledged Securities as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any and
all of the Pledged Securities upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
Issuer, or upon the exercise by any Grantor or the Collateral Agent of any
right, privilege or option pertaining to such Pledged Securities, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged Securities with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as the Collateral Agent
may determine), all without liability except to account for property actually
received by it, but the Collateral Agent shall have no duty to any Grantor to
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of
any Pledged Securities pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Collateral Agent in writing that (x) states
that an Event of Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from such Grantor, and each Grantor agrees that each Issuer shall
be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Securities directly to the Collateral Agent.
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6.4 Proceeds to be Turned Over to Collateral Agent. In addition
to the rights of the Collateral Agent and the Secured Parties specified in
Section 6.1 with respect to payments of Receivables, if an Event of Default
shall occur and be continuing, unless otherwise agreed by the Collateral Agent
all Proceeds received by any Grantor consisting of cash, checks and other near-
cash items shall be held by such Grantor in trust for the Collateral Agent and
the Secured Parties, segregated from other funds of such Grantor, and shall,
forthwith upon receipt by such Grantor, be turned over to the Collateral Agent
in the exact form received by such Grantor (duly indorsed by such Grantor to
the Collateral Agent, if required). All Proceeds received by the Collateral
Agent hereunder shall be held by the Collateral Agent in a Collateral Account
maintained under its sole dominion and control. All Proceeds while held by the
Collateral Agent in a Collateral Account (or by such Grantor in trust for the
Collateral Agent and the Secured Parties) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in Section 6.5.
6.5 Application of Proceeds. At such intervals as may be agreed
upon by the US Borrower and the Collateral Agent, or, if an Event of Default
shall have occurred and be continuing, at any time at the Collateral Agent's
election, the Collateral Agent may apply all or any part of Proceeds held in
any Collateral Account in payment of the Obligations in accordance with the
Sharing Agreement. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Accommodations shall be
outstanding and the Commitments shall have terminated shall be paid over to the
US Borrower or to whomsoever may be lawfully entitled to receive the same.
6.6 Code and Other Remedies. If an Event of Default shall occur
and be continuing, the Collateral Agent, on behalf of the Secured Parties, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the Code or any other applicable law. Without limiting the generality of the
foregoing, the Collateral Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Collateral Agent or any Secured Party
or elsewhere upon such terms and conditions as it may deem advisable and at
such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Collateral Agent or any Secured
Party shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in any Grantor, which right or equity is hereby waived or released.
Each Grantor further agrees, at the Collateral Agent's request, to assemble the
Collateral and make it available to the Collateral Agent at places which the
Collateral Agent
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shall reasonably select, whether at such Grantor's premises or elsewhere. The
Collateral Agent shall apply the net proceeds of any action taken by it
pursuant to this Section 6.6, after deducting all reasonable costs and expenses
of every kind incurred in connection therewith or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral
or the rights of the Collateral Agent and the Secured Parties hereunder,
including, without limitation, reasonable attorneys' fees and disbursements of
the Collateral Agent, to the payment in whole or in part of the Obligations, in
accordance with the Sharing Agreement, and only after such application and
after the payment by the Collateral Agent of any other amount required by any
provision of law, including, without limitation, Section 9-504(1)(c) of the
Code, need the Collateral Agent account for the surplus, if any, to any
Grantor. To the extent permitted by applicable law, each Grantor waives all
claims, damages and demands it may acquire against the Collateral Agent or any
Secured Party arising out of the exercise by them of any rights hereunder. If
any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition.
6.7 Registration Rights. (a) If the Collateral Agent shall
determine to exercise its right to sell any or all of the Pledged Stock
pursuant to Section 6.6, and if in the opinion of the Collateral Agent it is
necessary or advisable to have the Pledged Stock, or that portion thereof to be
sold, registered under the provisions of the Securities Act, the relevant
Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as
may be, in the reasonable opinion of the Collateral Agent, necessary or
advisable to register the Pledged Stock, or that portion thereof to be sold,
under the provisions of the Securities Act, (ii) use its best efforts to cause
the registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering
of the Pledged Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the reasonable
opinion of the Collateral Agent, are necessary or advisable, all in conformity
with the requirements of the Securities Act and the rules and regulations of
the Securities and Exchange Commission applicable thereto. Each Grantor agrees
to cause such Issuer to comply with the provisions of the securities or "Blue
Sky" laws of any and all jurisdictions which the Collateral Agent shall
designate and to make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) which will
satisfy the provisions of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Collateral Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
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deemed to have been made in a commercially reasonable manner. The Collateral
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or cause
to be done all such other acts as may be necessary to make such sale or sales
of all or any portion of the Pledged Stock pursuant to this Section 6.7 valid
and binding and in compliance with any and all other applicable Requirements of
Law. Each Grantor further agrees that a breach of any of the covenants
contained in this Section 6.7 will cause irreparable injury to the Collateral
Agent and the Secured Parties, that the Collateral Agent and the Secured
Parties have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section 6.7 shall
be specifically enforceable against such Grantor, and such Grantor hereby
waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of Default has
occurred under the Credit Agreement.
6.8 Waiver; Deficiency. Each Grantor waives and agrees not to
assert any rights or privileges which it may acquire under Section 9-112 of the
Code. Each Grantor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the
Collateral Agent or any Secured Party to collect such deficiency.
SECTION 7. THE COLLATERAL AGENT
7.1 Collateral Agent's Appointment as Attorney-in-Fact, etc.
(a) Each Grantor hereby irrevocably constitutes and appoints the Collateral
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Grantor and in the name of such Grantor or in its
own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be reasonably necessary or desirable to accomplish the
purposes of this Agreement, and, without limiting the generality of the
foregoing, each Grantor hereby gives the Collateral Agent the power and right,
on behalf of such Grantor, without notice to or assent by such Grantor, to do
any or all of the following:
(i) in the name of such Grantor or its own name, or
otherwise, take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment
of moneys due under any Receivable or with respect to any other
Collateral and file any claim or take any other action or
proceeding in any court of law or equity or otherwise deemed
appropriate by the
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Collateral Agent for the purpose of collecting any and all such
moneys due under any Receivable or with respect to any other
Collateral whenever payable;
(ii) in the case of any Copyright, Patent or Trademark,
execute and deliver any and all agreements, instruments,
documents and papers as the Collateral Agent may request to
evidence the Collateral Agent's and the Secured Parties' security
interest in such Copyright, Patent or Trademark and the goodwill
and general intangibles of such Grantor relating thereto or
represented thereby;
(iii) pay or discharge taxes and Liens levied or placed
on or threatened against the Collateral, effect any repairs or
any insurance called for by the terms of this Agreement and pay
all or any part of the premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for
in Section 6.6 or 6.7, any indorsements, assignments or other
instruments of conveyance or transfer with respect to the
Collateral; and
(v) (1) direct any party liable for any payment under
any of the Collateral to make payment of any and all moneys due
or to become due thereunder directly to the Collateral Agent or
as the Collateral Agent shall direct; (2) ask or demand for,
collect, receive payment of and receipt for, any and all moneys,
claims and other amounts due or to become due at any time in
respect of or arising out of any Collateral; (3) sign and indorse
any invoices, freight or express bills, bills of lading, storage
or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any
of the Collateral; (4) commence and prosecute any suits, actions
or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any portion thereof and
to enforce any other right in respect of any Collateral; (5)
defend any suit, action or proceeding brought against such
Grantor with respect to any Collateral; (6) settle, compromise or
adjust any such suit, action or proceeding and, in connection
therewith, to give such discharges or releases as the Collateral
Agent may deem appropriate; (7) assign any Copyright, Patent or
Trademark (along with the goodwill of the business to which any
such Copyright, Patent or Trademark pertains), throughout the
world for such term or terms, on such conditions, and in such
manner, as the Collateral Agent shall in its sole discretion
determine; and (8) generally, sell, transfer, pledge and make any
agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Collateral Agent
were the absolute owner thereof for all purposes, and do, at the
Collateral Agent's option and such Grantor's expense, at any
time, or from time to time, all acts and things which the
Collateral Agent deems necessary to protect, preserve or realize
upon the Collateral and the Collateral Agent's and the Secured
Parties' security interests
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therein and to effect the intent of this Agreement, all as fully
and effectively as such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Collateral Agent agrees that it will not exercise any rights under the power of
attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Collateral Agent, at its option, but without
any obligation so to do, may perform or comply, or otherwise cause performance
or compliance, with such agreement.
(c) The expenses of the Collateral Agent incurred in connection
with actions undertaken as provided in this Section 7.1, together with interest
thereon at a rate per annum equal to the rate per annum at which interest would
then be payable on past due ABR Loans under the Credit Agreement, from the date
of payment by the Collateral Agent to the date reimbursed by the relevant
Grantor, shall be payable by such Grantor to the Collateral Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations
and agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
7.2 Duty of Collateral Agent. The Collateral Agent's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Collateral Agent deals with
similar property for its own account. Neither the Collateral Agent, any
Secured Party nor any of their respective officers, directors, employees or
agents shall be liable for failure to demand, collect or realize upon any of
the Collateral or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of any Grantor or
any other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The powers conferred on the Collateral Agent
and the Secured Parties hereunder are solely to protect the Collateral Agent's
and the Secured Parties' interests in the Collateral and shall not impose any
duty upon the Collateral Agent or any Secured Party to exercise any such
powers. The Collateral Agent and the Secured Parties shall be accountable only
for amounts that they actually receive as a result of the exercise of such
powers, and neither they nor any of their officers, directors, employees or
agents shall be responsible to any Grantor for any act or failure to act
hereunder, except for their own gross negligence or willful misconduct or their
breach of the Loan Documents.
7.3 Execution of Financing Statements. Pursuant to Section 9-
402 of the Code and any other applicable law, each Grantor authorizes the
Collateral Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the
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Collateral Agent reasonably determines appropriate to perfect the security
interests of the Collateral Agent under this Agreement. A photographic or
other reproduction of this Agreement shall be sufficient as a financing
statement or other filing or recording document or instrument for filing or
recording in any jurisdiction.
7.4 Authority of Collateral Agent. Each Grantor acknowledges
that the rights and responsibilities of the Collateral Agent under this
Agreement with respect to any action taken by the Collateral Agent or the
exercise or non-exercise by the Collateral Agent of any option, voting right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Agreement shall, as between the Collateral Agent and the
Secured Parties, be governed by the Sharing Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Collateral Agent and the Grantors, the Collateral Agent shall be
conclusively presumed to be acting as agent for the Secured Parties with full
and valid authority so to act or refrain from acting, and no Grantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. Subject to the terms of the Credit
Agreement, the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified by a written instrument executed by each
affected Grantor and the Collateral Agent, provided that any provision of this
Agreement imposing obligations on any Grantor may be waived by the Collateral
Agent in a written instrument executed by the Collateral Agent.
8.2 Notices. All notices, requests and demands to or upon the
Collateral Agent or any Grantor hereunder shall be effected in the manner
provided for in subsection 12.2 of the Credit Agreement; provided that any such
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on Schedule 1 and any such notice,
received or demand to or upon the Collateral Agent shall be addressed to the
Collateral Agent at: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇.
8.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Collateral Agent nor any Secured Party shall by any act (except by
a written instrument pursuant to Section 8.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of the Collateral Agent or any Secured Party,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Collateral Agent or any Secured
Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Collateral Agent or such
Secured Party would otherwise have on any future occasion. The rights and
remedies herein provided are
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cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor
agrees to pay or reimburse each Secured Party and the Collateral Agent for all
its costs and expenses incurred in collecting against such Guarantor under the
guarantee contained in Section 2 or otherwise enforcing or preserving any
rights under this Agreement and the other Loan Documents to which such
Guarantor is a party, including, without limitation, the fees and disbursements
of counsel to the Collateral Agent.
(b) Each Guarantor agrees to pay, and to save the Collateral
Agent and the Secured Parties harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and all stamp, excise,
sales or other taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the transactions
contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the Collateral
Agent and the Secured Parties harmless from, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement (collectively, the "indemnified liabilities") to the extent the US
Borrower would be required to do so pursuant to Section 12.5 of the Credit
Agreement.
(d) The agreements in this Section 8.4 shall survive repayment
of the Obligations and all other amounts payable under the Credit Agreement and
the other Loan Documents.
8.5 Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of each Grantor and shall inure to the benefit
of the Collateral Agent and the Secured Parties and their successors and
assigns; provided that no Grantor may assign, transfer or delegate any of its
rights or obligations under this Agreement without the prior written consent of
the Collateral Agent.
8.6 Set-Off. Each Guarantor hereby irrevocably authorizes the
Collateral Agent and each Secured Party at any time and from time to time while
an Event of Default pursuant to Section 9(a) of the Credit Agreement shall have
occurred and be continuing, without notice to such Guarantor, any other
Guarantor or the US Borrower, any such notice being expressly waived by each
Guarantor and by the US Borrower, to set-off and appropriate and apply any and
all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Collateral Agent or such Secured
Party to or for the credit or the account of such Guarantor, or any part
thereof in such amounts as the Collateral Agent or such Secured Party may
elect, against and on account of the obligations and liabilities of such
Guarantor to the Collateral Agent or such Secured Party hereunder and claims of
every nature and description of the Collateral Agent or such Secured
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Party against such Guarantor, in any currency, whether arising hereunder, under
the Credit Agreement, any other Loan Document or otherwise, as the Collateral
Agent or such Secured Party may elect, whether or not the Collateral Agent or
any Secured Party has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. The
Collateral Agent and each Secured Party shall notify such Guarantor promptly of
any such set-off and the application made by the Collateral Agent or such
Secured Party of the proceeds thereof, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The
rights of the Collateral Agent and each Secured Party under this Section 8.6
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which the Collateral Agent or such Secured Party may
have.
8.7 Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.
8.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.9 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
8.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Collateral Agent and the Secured
Parties with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Collateral Agent or any
Secured Party relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each Subsidiary
Guarantor hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
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(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Subsidiary Guarantor at its address referred to in
Section 8.2 or at such other address of which the Collateral Agent shall
have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
8.13 Acknowledgements. Each Subsidiary Guarantor hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents to which it
is a party;
(b) neither the Collateral Agent nor any Secured Party has any
fiduciary relationship with or duty to any Subsidiary Guarantor arising
out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Subsidiary Guarantors, on
the one hand, and the Collateral Agent and Secured Parties, on the other
hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Secured Parties or among the Subsidiary Guarantors and
the Secured Parties.
8.14 WAIVER OF JURY TRIAL. EACH SUBSIDIARY GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
8.15 Additional Grantors. Each Subsidiary of the US Borrower
that is required to become a party to this Agreement pursuant to Section 7.12
of the Credit Agreement shall become a Grantor for all purposes of this
Agreement upon execution and delivery by such Subsidiary of an Assumption
Agreement in the form of Annex 1 hereto.
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8.16 Releases. (a) At such time as the Obligations shall have
been paid in full, the Commitments have been terminated and no Accommodations
shall be outstanding, the Collateral shall be released from the Liens created
hereby, and this Agreement and all obligations (other than those expressly
stated to survive such termination) of the Collateral Agent and each Grantor
hereunder shall terminate, all without delivery of any instrument or
performance of any act by any party, and all rights to the Collateral shall
revert to the Grantors. At the request and sole expense of any Grantor
following any such termination, the Collateral Agent shall deliver to such
Grantor any Collateral held by the Collateral Agent hereunder, and execute and
deliver to such Grantor such documents as such Grantor shall reasonably request
to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Grantor in a transaction permitted by the Credit
Agreement, then the Collateral Agent, at the request and sole expense of such
Grantor, shall execute and deliver to such Grantor all releases or other
documents reasonably necessary or desirable for the release of the Liens
created hereby on such Collateral. At the request and sole expense of the US
Borrower, a Subsidiary Guarantor shall be released from its obligations
hereunder in the event that all the Capital Stock of such Subsidiary Guarantor
shall be sold, transferred or otherwise disposed of in a transaction permitted
by the Credit Agreement; provided that the US Borrower shall have delivered to
the Collateral Agent, at least ten Business Days prior to the date of the
proposed release, a written request for release identifying the relevant
Subsidiary Guarantor and the terms of the sale or other disposition in
reasonable detail, including the price thereof and any expenses in connection
therewith, together with a certification by the US Borrower stating that such
transaction is in compliance with the Credit Agreement and the other Loan
Documents.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
VIASYSTEMS, INC., as a Grantor
By: /s/
---------------------------
Title:
VIASYSTEMS, GROUP, INC., as a Grantor
By: /s/
---------------------------
Title:
VIASYSTEMS TECHNOLOGIES CORP., as a
Subsidiary Guarantor and a Grantor
By: /s/
---------------------------
Title:
VIASYSTEMS INTERNATIONAL, INC., as a
Subsidiary Guarantor and a Grantor
By: /s/
---------------------------
Title:
34
Schedule 1
NOTICE ADDRESSES OF GUARANTORS
c/o Mills & Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
35
Schedule 2
DESCRIPTION OF PLEDGED SECURITIES
PLEDGED STOCK:
Stock Certificate No.
Grantor Issuer Class of Stock No. of Shares
---------------- ----------------------- -------------------- --------------------- -------------------
Holdings Viasystems, Inc. Common 001 1,000
US Borrower Viasystems Common [002] 1,000
Technologies Corp.
US Borrower Viasystems Common 002 1,000
International,
Inc.
===============================================================================
PLEDGED NOTES:
Issuer Payee Principal Amount
----------------------------------------------- ---------------------------- ----------------------------
PCB Investments plc Viasystems, Inc. L.80,000,000
Circo Craft Co. Inc. Viasystems, Inc. C$65,000,000
Viasystems Technologies Corp. Viasystems, Inc. $175,000,000
36
Schedule 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
UCC FILING JURISDICTIONS
============================================================================================================
Grantor's Name and Address Filing Office(s) and State
============================================================================================================
Viasystems Group, Inc. Delaware Secretary of State
c/o Mills & Partners, Inc. Missouri Secretary of State
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
Suite ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Texas Secretary of State
------------------------------------------------------------------------------------------------------------
Viasystems, Inc. Delaware Secretary of State
c/o Mills & Partners, Inc. Missouri Secretary of State
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
Suite ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Texas Secretary of State
------------------------------------------------------------------------------------------------------------
37
============================================================================================================
Grantor's Name and Address Filing Office(s) and State
============================================================================================================
Viasystems Technologies Corp. Delaware Secretary of State
c/o Mills & Partners, Inc. Colorado Secretary
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Road ▇▇▇▇▇ County, Colorado
Suite 400 Massachusetts Secretary of ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Town Clerk, Massachusetts
Missouri Secretary of State
St. Louis City, Missouri
St. Louis County, Missouri
Ohio Secretary
Franklin County, Ohio
Oklahoma County, Oklahoma
Virginia Secretary of State
Richmond Independent City, Virginia
Texas Secretary of State
============================================================================================================
Viasystems International, Inc. Delaware Secretary of State
c/o Mills & Partners, Inc. Missouri Secretary of State
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
Suite ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Texas Secretary of State
============================================================================================================
38
Patent and Trademark Filings
US Patent and Trademark Office
Actions with respect to Pledged Stock
NONE
Other Actions
NONE
39
Schedule 4
JURISDICTION OF CHIEF EXECUTIVE OFFICE LOCATIONS
====================================================================================================================================
Chief
Executive Books and Chattel
Grantor's Name Office Records Paper Inventory Equipment Fixtures
====================================================================================================================================
Viasystems Group, Inc.
c/o Mills & Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ X X
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Viasystems, Inc.
c/o Mills & Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ X X
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Viasystems Technologies Corp.
c/o Mills & Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ X X
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Viasystems International, Inc.
c/o Mills & Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ X X
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Viasystems Technologies Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇ ▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Circo Craft Co. Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
26th Floor X X
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Circo Craft Co. Inc.
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇ X X X X
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Circo Craft Co. Inc.
▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇ ▇ ▇ ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Circo Craft Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇ ▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Circo ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇ 0.1
Frente ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Circo Technologies, S.A.
c/o Mills & Partners, Inc. X
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
====================================================================================================================================
40
Schedule 5
LOCATION OF INVENTORY AND EQUIPMENT
Grantor Locations
------- ---------
Viasystems Technologies Corp. Richmond, Virginia
Viasystems Group, Inc. None
Viasystems, Inc. None
Viasystems International, Inc. None
41
Schedule 6
INTELLECTUAL PROPERTY
Tradenames
(unregistered)
None.
U.S. Unregistered Trademark
R
U.S. Patents and Applications
1. U.S. Patent No. 4,340,092: Methods of and Apparatus for Straightening
Backplane Supported Pins.
2. U.S. Patent No. 4,340,093: Method of Straightening Backplane-Supported
Pins.
3. U.S. Patent No. 4,340,094: Method of Straightening Backplane-Supported
Pins.
4. U.S. Patent No. 4,365,398: Method and Apparatus for Assembling
Intermediate-Web Held Terminals.
5. U.S. Patent No. 4,398,628: Methods of Inserting Pins into an Apparatus
and a Pin Supporting Shuttle Used Therefor.
6. U.S. Patent No. 4,467,523: Methods and Apparatus for Inserting Pins into
a Substrate.
7. U.S. Patent No. 4,793,052: Method for Positioning a Panel.
8. U.S. Patent No. 4,978,423: Selective Solder Formation on Printed Circuit
Boards.
9. U.S. Patent No. 5,110,036: Method and Apparatus for Solder Leveling of
Printed Circuit Boards.
10. U.S. Patent No. 5,206,820: Metrology System for Analyzing Panel
Misregistration in a Panel Manufacturing Process and Providing
Appropriate Information for Adjusting Panel Manufacturing Processes.
42
2
11. U.S. Patent No. 5,335,405: Method and Apparatus for Aligning Phototools
for Photoprocessing of Printed Circuit Boards.
12. U.S. Patent Application No. 08/520192: Innerlayer Surface Treating Rack.
Licensed U.S. Patents
1. U.S. Patent No. 4,205,769: Method of and Systems for Counting Holes For
and Detecting Missing Holes in a Web.
2. U.S. Patent No. 4,206,543: Pin Insertion Tool.
3. U.S. Patent No. 4,216,580: Methods of and Apparatus for Assembling
Articles with a Support.
4. U.S. Patent 4,268,172: Method of and System for Automatically Adjusting
a Threshold Level of a Pulse Generating Circuit to Inspect a Web.
5. U.S. Patent 4,285,123: Pin Removal Tool.
6. U.S. Patent 4,372,044: Method and Apparatus for Straightening Pins.
7. U.S. Patent 4,373,656: Method of Preserving Solderability of Copper.
8. U.S. Patent 4,556,903: Inspection Scanning System.
9. U.S. Patent 4,600,951: Scanning Sample Signal Generation, Data
Digitizing and Retiming System.
10. U.S. Patent 4,628,022: Multilayer Circuit Board Fabrication Process and
Polymer Insulator Used Therein.
11. U.S. Patent 4,759,667: Twist Drill for Drilling Printed Circuit Board
Laminates and Having Drill Point Geometry.
12. U.S. Patent 4,974,335: Identification of Workpiece Information.
13. U.S. Patent 5,014,413: Method of Apparatus for Solder Leveling of
Printed Circuit Boards.
14. U.S. Patent 5,116,718: Contact Printing Process.
15. U.S. Patent 5,201,584: Mechanism for Preloading Linear Baring Slides.
43
3
16. U.S. Patent 5,388,756: Method and Apparatus For Removing Solder
Contaminants from Solder.
17. U.S. Patent 5,557,690: Method and System for Locating Objects with
Subpixel Precession.
18. U.S. Patent Application 08/497120: Device for Extracting, Sorting,
Handling Drill Bit Cassettes.
44
ACKNOWLEDGEMENT AND CONSENT1
The undersigned hereby acknowledges receipt of a copy of the Amended and
Restated Guarantee and Collateral Agreement dated as of April __, 1997 (the
"Agreement"), made by the Grantors parties thereto for the benefit of The Chase
Manhattan Bank, as Collateral Agent. The undersigned agrees for the benefit of
the Collateral Agent and the Secured Parties as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the Collateral Agent promptly in writing
of the occurrence of any of the events described in Section 5.8(a) of the
Agreement.
3. The terms of Sections 6.3(a) and 6.7 of the Agreement shall apply to
it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 6.3(a) or 6.7 of the Agreement.
[NAME OF ISSUER]
By
---------------------------------
Title
------------------------------
Address for Notices:
------------------------------------
------------------------------------
Fax:
-------------------------------
-----------------
1. This consent is necessary only with respect to any Issuer which is
not also a Grantor. This consent may be modified or eliminated with respect to
any Issuer that is not controlled by a Grantor. If a consent is required, its
execution and delivery should be included among the conditions to the initial
borrowing specified in the Amended and Restated Credit Agreement.
45
Annex 1 to
Amended and Restated Guarantee and
Collateral Agreement
ASSUMPTION AGREEMENT, dated as of ________________, ____, made by
______________________________, a ______________ (the "Additional Grantor"), in
favor of The Chase Manhattan Bank, as administrative agent (in such capacity,
the "Collateral Agent"), for the Secured Parties (as defined below). All
capitalized terms not defined herein shall have the meaning ascribed to them in
the Credit Agreement referred to below.
W I T N E S E T H :
WHEREAS, pursuant to the Amended and Restated Credit Agreement
dated as of April __, 1997 (as amended, modified, supplemented, restated and in
effect from time to time, the "Credit Agreement"), among Viasystems Group,
Inc., a Delaware corporation ("Holdings"), Viasystems, Inc., a Delaware
corporation (the "US Borrower"), Circo Craft Co., Inc., a Quebec corporation
(the "Canadian Borrower"), PCB Investments plc, a corporation organized under
the laws of England and Wales ("English Bidco"), Forward Group plc, a
corporation organized under the laws of England and Wales (the "English
Borrower"), any Future Foreign Subsidiary Borrowers which may from time to time
become parties thereto, the several banks and other financial institutions from
time to time parties thereto (the "Lenders"), The Chase Manhattan Bank of
Canada ("Chase Canada"), as administrative agent for the Canadian Lenders (in
such capacity, the "Canadian Agent"), Chase Manhattan International Limited, as
administrative agent for the English Lenders (in such capacity, the "English
Agent"), any Future Foreign Agent which may from time to time be appointed
hereunder and The Chase Manhattan Bank ("Chase"), as administrative agent for
the Lenders (in such capacity, the "Administrative Agent"), the Lenders have
severally agreed to make extensions of credit to the Borrowers upon the terms
and subject to the conditions set forth therein;
WHEREAS, in connection with the Credit Agreement, Holdings, the
US Borrower and certain of their Subsidiaries (other than the Additional
Grantor) have entered into the Amended and Restated Guarantee and Collateral
Agreement, dated as of April __, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Guarantee and Collateral Agreement") in favor
of the Collateral Agent for the benefit of the Secured Parties;
46
2
WHEREAS, the Credit Agreement requires the Additional Grantor to
become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the Guarantee and
Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and
delivering this Assumption Agreement, the Additional Grantor, as provided in
Section 8.15 of the Guarantee and Collateral Agreement, hereby becomes a party
to the Guarantee and Collateral Agreement as a Grantor thereunder with the same
force and effect as if originally named therein as a Grantor and, without
limiting the generality of the foregoing, hereby (a) guarantees the Domestic
Obligations as set forth in Section 2 of the Guarantee and Collateral
Agreement, (b) grants to the Collateral Agent for the benefit of the Secured
Parties a security interest in the Collateral on the terms and conditions of
the Guarantee and Collateral Agreement and (c) expressly assumes all
obligations and liabilities of a Grantor thereunder. The information set forth
in Annex 1-A hereto is hereby added to the information set forth in Schedules
____________2 to the Guarantee and Collateral Agreement. The Additional
Grantor hereby represents and warrants that each of the representations and
warranties contained in Section 4 of the Guarantee and Collateral Agreement is
true and correct on and as the date hereof (after giving effect to this
Assumption Agreement) as if made on and as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:
--------------------------------
Name:
Title:
-----------------
2. Refer to each Schedule which needs to be supplemented.