SECURITY AGREEMENT
(ONKYO AMERICA SPECIALTY PRODUCTS, INC.)
THIS SECURITY AGREEMENT (this "Agreement") dated as of August 31, 2000,
is between ONKYO AMERICA SPECIALTY PRODUCTS, INC., a Michigan corporation (the
"Company"), and GMAC BUSINESS CREDIT, LLC, a Delaware limited liability company
in its capacity as agent for the Lenders party to the Credit Agreement (defined
below) (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, Onkyo America, Inc., an Indiana corporation, as successor by
merger to Onkyo Acquisition Corporation, an Indiana corporation ("Borrower"),
entered into a Credit Agreement as of August 31, 2000 (as amended or otherwise
modified from time to time, the "Credit Agreement") with the Agent and various
financial institutions (such financial institutions, together with their
respective successors and assigns are collectively referred to as the "Lenders"
and individually as a "Lender") pursuant to which the Lenders have made a loan
to Borrower and have agreed to make additional loans to, and issue or
participate in letters of credit for the account of Borrower from time to time;
WHEREAS, the Company is a wholly owned subsidiary of the Borrower;
WHEREAS, pursuant to that certain Guaranty of even date herewith (as
amended, modified or restated from time to time, the "Guaranty"), made by the
Company in favor of the Agent, for itself and the benefit of the Lenders, the
Company has guaranteed the full and prompt payment and performance of the
"Obligations" (as defined in the Guaranty) including the indebtedness and the
other obligations of the Borrower and its successors and assigns under the
Credit Agreement;
WHEREAS, the Obligations of the Company under the Guaranty (the
"Guaranteed Obligations") are to be secured pursuant to this Agreement; and
WHEREAS, the Company acknowledges that in view of the subsidiary
relationship and other business relations between the Company and the Borrower,
the extensions of credit and other financial accommodations contemplated by the
Credit Agreement will inure to the benefit of the Company, and it is in the
direct interest and to the direct advantage of the Company that it execute and
deliver this Agreement.
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to the Borrower under or in
connection with the Credit Agreement, the Lender's willingness to continue to
make loans, advances or other financial accommodations to the Borrower, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. When used herein, (a) the terms Certificated Security, Chattel
Paper, Deposit Account, Document, Equipment, Financial Asset, Fixture, Goods,
Inventory, Instrument, Investment Property, Security, Security Entitlement and
Uncertificated Security have the respective meanings assigned thereto in the UCC
(as defined below); (b) capitalized terms which are not otherwise defined have
the respective meanings assigned thereto in the Credit Agreement; and (c) the
following terms have the following meanings (such definitions to be applicable
to both the singular and plural forms of such terms):
2. Account Debtor means the party who is obligated on or under any Account
Receivable, Contract Right or General Intangible.
3. Account Receivable means any right of the Company to payment for goods sold
or leased or for services rendered.
4. Assignee Deposit Account shall have the meaning ascribed to such term in
Section 4 hereof.
5. Collateral means all property and rights of the Company in which a security
interest is granted hereunder.
6. Computer Hardware and Software means all of the Company's rights (including
rights as licensee and lessee) with respect to (i) computer and other electronic
data processing hardware, including all integrated computer systems, central
processing units, memory units, display terminals, printers, computer elements,
card readers, tape drives, hard and soft disk drives, cables, electrical supply
hardware, generators, power equalizers, accessories, peripheral devices and
other related computer hardware; (ii) all software programs designed for use on
the computers and electronic data processing hardware described in clause (i)
above, including all operating system software, utilities and application
programs in whatsoever form (source code and object code in magnetic tape, disk
or hard copy format or any other listings whatsoever); (iii) any firmware
associated with any of the foregoing; and (iv) any documentation for hardware,
software and firmware described in clauses (i), (ii) and (iii) above, including
flow charts, logic diagrams, manuals, specifications, training materials, charts
and pseudo codes.
7. Contract Right means any right of the Company to payment under a contract for
the sale or lease of goods or the rendering of services, which right is at the
time not yet earned by performance.
8. Default means the occurrence of: (a) any Unmatured Event of Default under
Section 12.1.1 or 12.1.4 of the Credit Agreement; or (b) any Event of Default.
9. General Intangibles means all of the Company's "general intangibles" as
defined in the UCC and, in any event, includes (without limitation) all of the
Company's trademarks, trade names, patents, copyrights, trade secrets, customer
lists, inventions, designs, software programs, mask works, goodwill,
registrations, licenses, franchises, tax refund claims, guarantee claims,
security interests and rights to indemnification.
10. Intellectual Property means all past, present and future: trade secrets and
other proprietary information; trademarks, service marks, business names,
designs, logos, indicia and other source and/or business identifiers, and the
goodwill of the business relating thereto and all registrations or applications
for registrations which have heretofore been or may hereafter be issued thereon
throughout the world; copyrights (including copyrights for computer programs)
and copyright registrations or applications for registrations which have
heretofore been or may hereafter be issued throughout the world and all tangible
property embodying the copyrights; unpatented inventions (whether or not
patentable); patent applications and patents; industrial designs, industrial
design applications and registered industrial designs; license agreements
related to any of the foregoing and income therefrom; books, records, writings,
computer tapes or disks, flow diagrams, specification sheets, source codes,
object codes and other physical manifestations, embodiments or incorporations of
any of the foregoing; the right to xxx for all past, present and future
infringements of any of the foregoing; and all common law and other rights
throughout the world in and to all of the foregoing.
11. Non-Tangible Collateral means, collectively, the Company's Accounts
Receivable, Contract Rights and General Intangibles.
12. UCC means the Uniform Commercial Code as in effect in the State of Illinois
on the date of this Agreement; provided that, as used in Section 8 hereof, "UCC"
shall mean the Uniform Commercial Code as in effect from time to time in any
applicable jurisdiction.
13. Grant of Security Interest. As security for the payment of all Guaranteed
Obligations, the Company hereby assigns and grants to the Agent a continuing
security interest in the following, whether now or hereafter existing or
acquired:
14. All of the Company's:
(A) Accounts Receivable;
(B) Certificated Securities;
(C) Chattel Paper;
(D) Computer Hardware and Software and all rights with respect thereto,
including, any and all licenses, options, warranties, service contracts, program
services, test rights, maintenance rights, support rights, improvement rights,
renewal rights and indemnifications, and any substitutions, replacements,
additions or model conversions of any of the foregoing;
(E) Contract Rights;
(F) Deposit Accounts;
(G) Documents;
(H) Financial Assets;
(I) General Intangibles;
(J) Goods (including all of its Equipment, Fixtures and Inventory),
and all accessions, additions, attachments, improvements, substitutions
and replacements thereto and therefor;
(K) Instruments;
(L) Intellectual Property;
(M) Investment Property;
(N) money (of every jurisdiction whatsoever);
(O) Security Entitlements;
(P) Uncertificated Securities; and
(Q) to the extent not included in the foregoing, other personal property
of any kind or description;
together with all books, records, writings, data bases, information and other
property relating to, used or useful in connection with, or evidencing,
embodying, incorporating or referring to any of the foregoing, and all proceeds,
products, offspring, rents, issues, profits and returns of and from any of the
foregoing; provided that to the extent that the provisions of any lease or
license of Computer Hardware and Software or Intellectual Property expressly
prohibit (which prohibition is enforceable under applicable law) the assignment
thereof, and the grant of a security interest therein, the Company's rights in
such lease or license shall be excluded from the foregoing assignment and grant
for so long as such prohibition continues, it being understood that upon request
of the Agent, the Company will in good faith use reasonable efforts to obtain
consent for the creation of a security interest in favor of the Agent in the
Company's rights under such lease or license.
15. Warranties. The Company warrants that: (i) no financing statement (other
than any which may have been filed on behalf of the Agent or in connection with
liens expressly permitted by the Credit Agreement ("Permitted Liens")) covering
any of the Collateral is on file in any public office; (ii) the Company is and
will be the lawful owner of all Collateral, free of all liens and claims
whatsoever, other than the security interest hereunder and Permitted Liens, with
full power and authority to execute this Agreement and perform the Company's
obligations hereunder, and to subject the Collateral to the security interest
hereunder; (iii) all information with respect to Collateral and Account Debtor's
set forth in any schedule, certificate or other writing at any time heretofore
or hereafter furnished by the Company to the Agent is and will be true and
correct in all material respects as of the date furnished; (iv) the Company's
chief executive office and principal place of business are as set forth on
Schedule I hereto (and the Company has not maintained its chief executive office
and principal place of business at any other location at any time after January
18, 2000); (v) each other location where the Company maintains a place of
business is set forth on Schedule II hereto; (vi) except as set forth on
Schedule III hereto, the Company is not now known and during the five years
preceding the date hereof has not previously been known by any trade name; (vii)
except as set forth on Schedule III hereto, during the five years preceding the
date hereof the Company has not been known by any legal name different from the
one set forth on the signature pages of this Agreement nor has the Company been
the subject of any merger or other corporate reorganization; (viii) Schedule IV
hereto contains a complete listing of all of the Company's Intellectual Property
which is subject to registration statutes; (ix) the Company is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its incorporation; (x) the execution and delivery of this Agreement and
the performance by the Company of its obligations hereunder are within the
Company's corporate powers, have been duly authorized by all necessary corporate
action, have received all necessary governmental approval (if any shall be
required), and do not and will not contravene or conflict with any provision of
law or of the charter or by-laws of the Company or of any material agreement,
indenture, instrument or other document, or any material judgment, order or
decree, which is binding upon the Company; (xi) this Agreement is a legal, valid
and binding obligation of the Company, enforceable in accordance with its terms,
except that the enforceability of this Agreement may be limited by bankruptcy,
insolvency, fraudulent conveyance, fraudulent transfer, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law); (xii) the
Company is in compliance with the requirements of all applicable laws (including
the provisions of the Fair Labor Standards Act), rules, regulations and orders
of every governmental authority, the non-compliance with which would reasonably
be expected to result in a Material Adverse Effect; (xiii) the fair value of the
Company's assets exceeds the book value of the Company's liabilities; (xiv) the
Company is generally able to pay its debt as they become due and payable; and
(xv) the Company does not have unreasonably small capital to carry on its
business as it is currently conducted absent extraordinary and unforeseen
circumstances.
16. Collections, etc. Until such time, during the existence of a Default, as the
Agent shall notify the Company of the revocation of such power and authority,
the Company (a) may, in the ordinary course of its business, at its own expense,
sell, lease or furnish under contracts of service any of the Inventory normally
held by the Company for such purpose, use and consume, in the ordinary course of
its business, any raw materials, work in process or materials normally held by
the Company for such purpose, and use, in the ordinary course of its business
(but subject to the terms of the Credit Agreement), the cash proceeds of
Collateral and other money which constitutes Collateral, (b) will, at its own
expense, endeavor to collect, as and when due, all amounts due under any of the
Non-Tangible Collateral, including the taking of such action with respect to
such collection as the Agent may reasonably request or, in the absence of such
request, as the Company may deem advisable, and (c) may grant, in the ordinary
course of business, to any party obligated on any of the Non-Tangible
Collateral, any rebate, refund or allowance to which such party may be lawfully
entitled, and may accept, in connection therewith, the return of Goods, the sale
or lease of which shall have given rise to such Non-Tangible Collateral. The
Agent, however, may, at any time that a Default exists, whether before or after
any revocation of such power and authority or the maturity of any of the
Guaranteed Obligations, notify any parties obligated on any of the Non-Tangible
Collateral to make payment to the Agent of any amounts due or to become due
thereunder and enforce collection of any of the Non-Tangible Collateral by suit
or otherwise and surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer than the
original period) any indebtedness thereunder or evidenced thereby. Upon the
request of the Agent during the existence of a Default, the Company will, at its
own expense, notify any or all parties obligated on any of the Non-Tangible
Collateral to make payment to the Agent of any amounts due or to become due
thereunder.
17. Upon request by the Agent during the existence of a Default, the Company
will forthwith, upon receipt, transmit and deliver to the Agent, in the form
received, all cash, checks, drafts and other instruments or writings for the
payment of money (properly endorsed, where required, so that such items may be
collected by the Agent) which may be received by the Company at any time in full
or partial payment or otherwise as proceeds of any of the Collateral. Except as
the Agent may otherwise consent in writing, any such items which may be so
received by the Company will not be commingled with any other of its funds or
property, but will be held separate and apart from its own funds or property and
upon express trust for the Agent until delivery is made to the Agent. The
Company will comply with the terms and conditions of any consent given by the
Agent pursuant to the foregoing sentence.
18. During the existence of a Default, all items or amounts which are delivered
by the Company to the Agent on account of partial or full payment or otherwise
as proceeds of any of the Collateral shall be deposited to the credit of a
deposit account (each an "Assignee Deposit Account") of the Company with Agent
(or another financial institution selected by the Agent) over which the Agent
has sole dominion and control, as security for payment of the Guaranteed
Obligations. The Company shall have no right to withdraw any funds deposited in
the applicable Assignee Deposit Account. The Agent may, from time to time, in
its discretion, and shall upon request of the applicable Company made not more
than once in any week, apply all or any of the then balance, representing
collected funds, in the Assignee Deposit Account toward payment of the
Guaranteed Obligations, whether or not then due, in such order of application as
the Agent may determine, and the Agent may, from time to time, in its
discretion, release all or any of such balance to the Company.
19. The Agent (or any designee of the Agent) is authorized to endorse, in the
name of the Company, any item, howsoever received by the Agent, representing any
payment on or other proceeds of any of the Collateral.
20. Certificates, Schedules and Reports. The Company will from time to time, as
the Agent may request, deliver to the Agent such schedules, certificates and
reports respecting all or any of the Collateral at the time subject to the
security interest hereunder, and the items or amounts received by the Company in
full or partial payment of any of the Collateral, as the Agent may reasonably
request. Any such schedule, certificate or report shall be executed by a duly
authorized officer of the Company and shall be in such form and detail as the
Agent may specify. The Company shall immediately notify the Agent of the
occurrence of any event causing any loss or depreciation in the value of its
Inventory or other Goods which is material to the Company and its Subsidiaries
taken as a whole, and such notice shall specify the amount of such loss or
depreciation.
21. Agreements of the Company. The Company (a) will, upon request of the Agent,
execute such financing statements and other documents (and pay the cost of
filing or recording the same in all public offices reasonably deemed appropriate
by the Agent) and do such other acts and things (including, delivery to the
Agent of any Instruments or Certificated Securities which constitute
Collateral), all as the Agent may from time to time reasonably request, to
establish and maintain a valid security interest in the Collateral (free of all
other liens, claims and rights of third parties whatsoever, other than Permitted
Liens) to secure the payment of the Guaranteed Obligations; (b) will keep all
its Inventory at, and will not maintain any place of business at any location
other than, its address(e's) shown on Schedules I and II hereto or at such other
addresses of which the Company shall have given the Agent not less than 10 days'
prior written notice, (c) will keep its records concerning the Non-Tangible
Collateral in such a manner as will enable the Agent or its designees to
determine at any time the status of the Non-Tangible Collateral; (d) will
furnish the Agent such information concerning the Company, the Collateral and
the Account Debtor's as the Agent may from time to time reasonably request; (e)
will permit the Agent and its designees, from time to time, on reasonable notice
and at reasonable times and intervals during normal business hours (or at any
time without notice during the existence of a Default) to inspect the Company's
Inventory and other Goods, and to inspect, audit and make copies of and extracts
from all records and other papers in the possession of the Company pertaining to
the Collateral and the Account Debtors, and will, upon request of the Agent
during the existence of a Default, deliver to the Agent all of such records and
papers; (f) will, upon request of the Agent, stamp on its records concerning the
Collateral, and add on all Chattel Paper constituting a portion of the
Collateral, a notation, in form satisfactory to the Agent, of the security
interest of the Agent hereunder; (g) except for the sale or lease of Inventory
in the ordinary course of its business and sales of Equipment which is no longer
useful in its business or which is being replaced by similar Equipment, will not
sell, lease, assign or create or permit to exist any Lien on any Collateral
other than Permitted Liens; (h) without limiting the provisions of Section 10.3
of the Credit Agreement, will at all times keep all of its Inventory and other
Goods insured under policies maintained with reputable, financially sound
insurance companies against loss, damage, theft and other risks to such extent
as is customarily maintained by companies similarly situated, and cause all such
policies to provide that loss thereunder shall be payable to the Agent as its
interest may appear (it being understood that (A) so long as no Default shall be
existing, the Agent shall deliver any proceeds of such insurance which may be
received by it to the Company and (B) whenever a Default shall be existing, the
Agent may apply any proceeds of such insurance which may be received by it
toward payment of the Guaranteed Obligations, whether or not due, in such order
of application as the Agent may determine), and such policies or certificates
thereof shall, if the Agent so requests, be deposited with or furnished to the
Agent; (i) will take such actions as are reasonably necessary to keep its
Inventory in good repair and condition; (j) will take such actions as are
reasonably necessary to keep its Equipment in good repair and condition and in
good working order, ordinary wear and tear excepted; (k) will promptly pay when
due all license fees, registration fees, taxes, assessments and other charges
which may be levied upon or assessed against the ownership, operation,
possession, maintenance or use of its Equipment and other Goods; (l) will, upon
request of the Agent, (i) cause to be noted on the applicable certificate, in
the event any of its Equipment is covered by a certificate of title, the
security interest of the Agent in the Equipment covered thereby, and (ii)
deliver all such certificates to the Agent or its designees; (m) will take all
steps reasonably necessary to protect, preserve and maintain all of its rights
in the Collateral; (n) except as listed on Schedule V, will keep all of the
tangible Collateral in the United States; and (o) will reimburse the Agent for
all expenses, including reasonable attorney's fees and charges (including time
charges of attorneys who are employees of the Agent), incurred by the Agent in
seeking to collect or enforce any rights in respect of the Company's Collateral.
22. Any expenses incurred in protecting, preserving or maintaining any
Collateral shall be borne by the Company. Whenever a Default shall be existing,
the Agent shall have the right to bring suit to enforce any or all of the
Intellectual Property or licenses thereunder, in which event the Company shall
at the request of the Agent do any and all lawful acts and execute any and all
proper documents required by the Agent in aid of such enforcement and the
Company shall promptly, upon demand, reimburse and indemnify the Agent for all
costs and expenses incurred by the Agent in the exercise of its rights under
this Section 6. Notwithstanding the foregoing, the Agent shall have no
obligation or liability regarding the Collateral or any thereof by reason of, or
arising out of, this Agreement.
23. Default. Whenever a Default shall be existing, the Agent may exercise from
time to time any right or remedy available to it under applicable law. The
Company agrees, in case of Default, (i) to assemble, at its expense, all its
Inventory and other Goods (other than Fixtures) at a convenient place or places
acceptable to the Agent, and (ii) at the Agent's request, to execute all such
documents and do all such other things which may be necessary or desirable in
order to enable the Agent or its nominee to be registered as owner of the
Intellectual Property with any competent registration authority. Any
notification of intended disposition of any of the Collateral required by law
shall be deemed reasonably and properly given if given at least ten days before
such disposition. Any proceeds of any disposition by the Agent of any of the
Collateral may be applied by the Agent to payment of expenses in connection with
the Collateral, including reasonable attorney's fees and charges (including time
charges of attorneys who are employees of the Agent), and any balance of such
proceeds may be applied by the Agent toward the payment of such of the
Guaranteed Obligations, and in such order of application, as the Agent may from
time to time elect.
24. General. The Agent shall be deemed to have exercised reasonable care in the
custody and preservation of any of the Collateral in its possession if it takes
such action for that purpose as the Company requests in writing, but failure of
the Agent to comply with any such request shall not of itself be deemed a
failure to exercise reasonable care, and no failure of the Agent to preserve or
protect any right with respect to such Collateral against prior parties, or to
do any act with respect to the preservation of such Collateral not so requested
by the Company, shall be deemed of itself a failure to exercise reasonable care
in the custody or preservation of such Collateral.
25. Any notice from the Agent to the Company, if mailed, shall be deemed given
five days after the date mailed, postage prepaid, addressed to the Company
either at the Company's address shown on Schedule I hereto or at such other
address as the Company shall have specified in writing to the Agent as its
address for notices hereunder.
26. The Company agrees to pay all expenses, including reasonable attorney's fees
and charges (including time charges of attorneys who are employees of the Agent)
paid or incurred by the Agent in endeavoring to collect the Guaranteed
Obligations of the Company, or any part thereof, and in enforcing this Agreement
against the Company, and such obligations will themselves be Guaranteed
Obligations.
27. No delay on the part of the Agent in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by the
Agent of any right or remedy shall preclude other or further exercise thereof or
the exercise of any other right or remedy.
28. This Agreement shall remain in full force and effect until all Guaranteed
Obligations have been paid in full and all Commitments have terminated. If at
any time all or any part of any payment theretofore applied by the Agent to any
of the Guaranteed Obligations is or must be rescinded or returned by the Agent
for any reason whatsoever (including the insolvency, bankruptcy or
reorganization of the Company), such Guaranteed Obligations shall, for the
purposes of this Agreement, to the extent that such payment is or must be
rescinded or returned, be deemed to have continued in existence, notwithstanding
such application by the Agent, and this Agreement shall continue to be effective
or be reinstated, as the case may be, as to such Guaranteed Obligations, all as
though such application by the Agent had not been made.
29. This Agreement shall be construed in accordance with and governed by the
laws of the State of Illinois applicable to contracts made and to be performed
entirely within such State, subject, however, to the applicability of the UCC of
any jurisdiction in which any Goods of the Company may be located at any given
time or as otherwise restricted by the UCC. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
30. The rights and privileges of the Agent hereunder shall inure to the benefit
of its successors and assigns.
31. This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same Agreement. At any time after the date of this
Agreement, one or more additional Persons may become parties hereto by executing
and delivering to the Agent a counterpart of this Agreement together with
supplements to the Schedules hereto setting forth all relevant information with
respect to such party as of the date of such delivery. Immediately upon such
execution and delivery (and without any further action), each such additional
Person will become a party to, and will be bound by all the terms of, this
Agreement.
32. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE COMPANY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, TO THE ADDRESS SET FORTH ON SCHEDULE I HERETO (OR SUCH OTHER ADDRESS AS
IT SHALL HAVE SPECIFIED IN WRITING TO THE AGENT AS ITS ADDRESS FOR NOTICES
HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE
COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
33. THE COMPANY AND THE AGENT HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY
NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN
CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
34. It is the intention of the parties hereto that the priorities and agreements
herein contained continue to apply after the enactment by the various States of
Revised Article 9--Secured Transactions (with conforming amendments to Articles
1, 2, 2a, 4, 5, 6, 7 and 8) to the UCC as approved by The American Law Institute
in 1998 and approved and recommended for enactment in all the States by the
National Conference of Commissioners for Uniform State Laws in 1998 ("Revised
Article 9") and the effectiveness of Revised Article 9 in any State. After the
effectiveness of Revised Article 9 in any State governing perfection and the
effect of perfection or non-perfection of a security interest in any Collateral,
as to such State and such Collateral, (i) all section references herein to, and
all defined terms used herein defined in, Article 9 of the UCC as currently in
effect shall be deemed to be to any corresponding Section or definition of
Revised Article 9, and (ii) if any definition used herein by reference to
Revised Article 9 is broader than the corresponding definition used in current
Article 9 of the UCC, such broader definition will apply herein.
[SIGNATURE PAGE FOLLOWS]
Security Agreement Signature Page
IN WITNESS WHEREOF, this Security Agreement has been duly executed as
of the day and year first above written.
Company:
ONKYO AMERICA SPECIALTY PRODUCTS, INC., a Michigan corporation
By:
Title:
Agent:
GMAC BUSINESS CREDIT, LLC,
a Delaware limited liability company, as Agent
By:
Name: Xxxx X. Xxxxxxx
Title: Vice President
Schedule I
To the Security Agreement among
GMAC Business Credit, LLC and
Onkyo America Specialty
Products, Inc.
Chief Executive Office and Principal Place of Business
Onkyo America, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Schedule II
To the Security Agreement among
GMAC Business Credit, LLC and
Onkyo America Specialty
Products, Inc.
Other Locations Where the Place of Business is Maintained
Onkyo America Specialty Products, Inc.
0000 Xxxxxxxxx
Xxxx, XX 00000
Other Locations Where Inventory is Stored
None
Schedule III
To the Security Agreement among
GMAC Business Credit, LLC and
Onkyo America Specialty
Products, Inc.
Trade Names
None
Schedule IV
To the Security Agreement among
GMAC Business Credit, LLC and
Onkyo America Specialty
Products, Inc.
Intellectual Property
1) Patent Number 4,673,056 for Loudspeaker System.
2) Patent Number 5,527,587 for Trim and Piece Method for Making Same.
3) Patent Number 5,094,316 for Overhead Speaker System for Use in Vehicles.
4) Patent Number 5,606,623 for Overhead Vehicle Loud Speaker Cabinet XJ System.
5) Patent Number 5,646,381 for Mounted Sound Horn.
6) Patent Application Serial No. 09/332,844 for Loud Speaker Assembly and
Method of Assembly for same.
Schedule V
To the Security Agreement among GMAC
Business Credit, LLC and Onkyo
America Specialty Products, Inc.
Collateral Not Located in United States
None.
Schedule VI
To the Security Agreement among
GMAC Business Credit, LLC and
Onkyo America Specialty
Products, Inc.
Assigned Contracts
None.
