CONSENT AGREEMENT
EXHBIT 10.29
CONSENT AGREEMENT
July 31, 2000
South Central Pool Supply, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Reference hereby is made to that certain Third Amended and Restated Credit Agreement dated as of
December 31, 1997 (as the same has been and further may be amended, modified, supplemented or restated from time
to time, the "Credit Agreement") among South Central Pool Supply, Inc., a Delaware corporation ("Borrower"), the
institutions from time to time party thereto as lenders (the "Lenders") and LaSalle Bank National Association, as
contractual agent (in such capacity, the "Agent") for the "Holders of Secured Obligations" (this term and all
other capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such
terms in the Credit Agreement).
Notwithstanding anything contained in the Credit Agreement or the other Loan Documents to the contrary,
but subject to the conditions and terms herein contained, Agent and the Required Lenders hereby consent to the
following occurrences and/or transactions:
1. the formation of SCP Superior Acquisition Company LLC, a Delaware limited liability
company ("SCP Acquisition"), 100% of the limited liability company and membership interests and units
of which shall be owned by the Borrower; and
2. the acquisition by SCP Acquistion of substantially all of the assets of Superior Pool
Products, Inc., a Delaware corporation, in accordance with the terms of the Asset Purchase Agreement
dated June 14, 2000;
provided, that, such consent shall be subject to the following:
a. Borrower shall have executed and delivered to Agent, for the benefit of the Holders of
Secured Obligations, a pledge agreement (the "SCP Pledge Agreement"), in substantially the form attached
hereto as Exhibit A, together with assignments separate from certificate, proxies and other documents as
Agent reasonably shall request, pursuant to which the Agent shall have received, for the benefit of the
Holders of Secured Obligations, a first priority security interest in 100% of the issued and outstanding
limited liability company and membership interests and units of SCP Acquisition;
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b. SCP Acquisition shall have (i) joined in the execution and delivery of the Guaranty
and (ii) executed and delivered to Agent, for the benefit of the Holders of Secured Obligations, a
security agreement (the "SCP Security Agreement"), in substantially the form attached hereto as Exhibit
B, together with UCC financing statements and other documents Agent reasonably shall request, pursuant to
which the Agent shall have received, for the benefit of the Holders of Secured Obligations, upon
recordation of such UCC financing statements, a first priority security interest in substantially all of
the property and assets of SCP Acquisition;
c. Each of Borrower and SCP Acquisition shall (a) ensure that all written information,
exhibits and reports furnished to the Agent or the Lenders do not and will not contain any untrue
statement of a material fact and do not and will not omit to state any material fact or any fact
necessary to make the statements contained therein not misleading in light of the circumstances in which
made, and will promptly disclose to the Agent and the Lenders and correct any defect or error that may
be discovered therein or in any Loan Document or in the execution, acknowledgement or recordation
thereof, and (b) promptly upon request by the Agent, take such additional actions as the Agent may
reasonably require from time to time in order (i) to carry out more effectively the purposes of this
Agreement or any other Loan Document, (ii) to subject to the Liens created by any of the Collateral
Documents any of the properties, rights or interests covered by any of the Collateral Documents, (iii)
to perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and
the Liens intended to be created thereby, and (iv) to better assure, convey, grant, assign, transfer,
preserve, protect and confirm to the Agent and Lenders the rights granted or now or hereafter intended
to be granted to the Agent and the Lenders under any Loan Document or under any other document executed
in connection therewith; and
The Borrower, by its signature hereto below, hereby agrees and acknowledges that: (i) the SCP Pledge
Agreement and the SCP Security Agreement constitute, and shall be deemed to be, "Collateral Documents" under the
Credit Agreement and the other Loan Documents; and (ii) SCP Acquisition is a Domestic Incorporated Subsidiary and
a Subsidiary and shall be subject to the terms, conditions, agreements and covenants contained in the Credit
Agreement and the other Loan Documents in respect thereof.
This Letter Consent may be executed by one or more of the parties hereto on any number of separate
counterparts and all of said counterparts taken together shall be deemed to constitute one and the same
instrument. This Letter Consent may be executed by facsimile and a facsimile transmission of a signature to the
Agent or the Agent's counsel shall be effective as though an original signature has been so delivered.
Each of the Loan Parties as debtor, grantor, pledgor, guarantor, assignor, or in any other similar
capacity in which such Loan Party grants liens or security interests in its property or otherwise acts as
accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and
performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after
giving effect hereto) and (ii) to the extent such Loan Party granted liens on or security interests in any of its
property pursuant to any such Loan Document as security therefor or otherwise guaranteed the Obligations under or
with respect to the Loan Documents, ratifies and reaffirms such guarantee and grant of security interests and
liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations.
Each of the Loan Parties hereby consents to this Consent Letter and acknowledges that each of the Loan Documents
remains in full force and effect and is hereby ratified and reaffirmed. The execution of this Consent letter
shall not operate as a waiver of any right, power or remedy of the Agent or Lenders, constitute a waiver of any
provision of any of the Loan Documents (except as specifically set forth herein), constitute a course of dealing
among the parties or serve to effect a novation of the Obligations.
[remainder of page intentionally left blank; signature pages follow]
Consent Letter
IN WITNESS WHEREOF, this Consent Letter has been duly executed as of the day and year first above
written.
LASALLE BANK NATIONAL ASSOCIATION, as a Lender and as Agent
By: /S/
Its:
HIBERNIA NATIONAL BANK, as a Lender
By: /S/
Its:
NATIONAL CITY BANK, as a Lender
By: /S/
Its:
BANK ONE, N.A., formerly known as THE FIRST NATIONAL BANK OF
CHICAGO, as a Lender
By: /S/
Its:
AGREED AND ACKNOWLEDGED THIS
31 Day of July, 2000
SOUTH CENTRAL POOL SUPPLY, INC.
By: /S/
Its:
SCP POOL CORPORATION
By: /S/
Its:
Consent Letter
ALLIANCE PACKAGING, INC.
By: /S/
Its:
SCP INTERNATIONAL, INC.
By: /S/
Its:
SCP SUPERIOR ACQUISITION COMPANY LLC
By: /S/
Its:
EXHIBIT A
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Pledge Agreement"), dated as of July 31, 2000, is executed by and
between South Central Pool Supply, Inc., a Delaware corporation ("Pledgor"), and LaSalle Bank National
Association, as contractual representative (the "Agent") for itself and for the "Holders of Secured Obligations"
under (and as defined in) the Credit Agreement described below. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement.
WITNESSETH:
WHEREAS, Pledgor, the Agent and certain financial institutions (the "Lenders") have entered into a
certain Third Amended and Restated Credit Agreement, dated as of December 31, 1997 (as the same has been and
further may be amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement"),
pursuant to which the Lenders have agreed, subject to certain conditions precedent, to make loans and other
financial accommodations to the Pledgor from time to time (collectively, the "Loans");
WHEREAS, as set forth on Schedule I hereto, the Pledgor owns 100% of the issued and outstanding limited
liability company and membership interests and units of SCP Superior Acquisition Company LLC, a Delaware limited
liability company (the "Pledged Subsidiary");
WHEREAS, the Agent and the Lenders have required, as a condition under the Credit Agreement and to
continue making the Loans, and as further security for the Secured Obligations, that the Pledgor execute and
deliver this Pledge Agreement;
NOW, THEREFORE, for and in consideration of the foregoing and of any financial accommodations or
extensions of credit (including, without limitation, any loan or advance by renewal, refinancing or extension of
the agreements described hereinabove or otherwise) heretofore, now or hereafter made to or for the benefit of the
Pledgor pursuant to the Credit Agreement or any other agreement, instrument or document executed pursuant to or
in connection therewith, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Pledgor and the Agent hereby agree as follows:
1. Pledge. Pledgor hereby pledges to the Agent, for the benefit of the Agent and the Holders of
Secured Obligations, and grants to the Agent for the benefit of the Agent and the Holders of Secured Obligations,
a security interest in, the collateral described in subsections (a) through (g) below (collectively, the "Pledged
Collateral"):
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(a) All of the limited liability company and membership interests and units and other
securities and all warrants, options and other rights to acquire limited liability company and
membership interests and units in the Pledged Subsidiary owned by Pledgor, whether now owned or
hereafter acquired by Pledgor, including, without limitation, as described in Schedule I hereto, all of
the certificates and/or instruments representing such limited liability company and membership interests
and units and other securities, and all cash, securities, dividends, distributions, rights and other
property at any time and from time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of such limited liability company and membership interests and units and
other securities;
(b) All of Pledgor's interests in the profits and losses of the Pledged Subsidiary and all
of Pledgor's rights and interests as a member of the Pledged Subsidiary to receive dividends or other
distributions of the Pledged Subsidiary's assets and properties;
(c) All of Pledgor's rights and interests, if any, to participate in the management of the
Pledged Subsidiary;
(d) All rights, privileges, authority and powers of Pledgor as owner or holder of the
limited liability company and membership interests and units in the Pledged Subsidiary, including,
without limitation, all general intangibles and other property incident or related thereto;
(e) All other property hereafter delivered to the Agent in substitution for or in addition
to any of the foregoing, all certificates and instruments representing or evidencing such property, and
all cash, securities, interest, dividends, distributions, rights and other property at any time and from
time to time received, receivable or otherwise distributed in respect of or in exchange for any or all
thereof;
(f) The property and interests in property described in Section 3 below; and
(g) All products and proceeds of the collateral described in subsections (a) through (f)
above.
2. Security for Obligations. The Pledged Collateral secures the prompt payment, performance and
observance of all obligations (monetary or otherwise) of Pledgor under the Credit Agreement, any Note, any other
Loan Document or any other agreement, document or instrument executed in connection therewith to the extent
Pledgor is a party thereto, and including, without limitation, the Secured Obligations.
3. Pledged Collateral Adjustments. If, during the term of this Pledge Agreement:
(a) Any distribution, reclassification, readjustment or other change is declared or made
in the capital structure of the Pledged Subsidiary, or any option included within the Pledged Collateral
is exercised, or both, or
(b) Any subscription warrants or any other rights or options shall be issued in connection
with the Pledged Collateral,
then all new, substituted and additional certificates, shares, warrants, rights, options, investment property or
other securities, issued by reason of any of the foregoing, shall be immediately delivered to and held by the
Agent under the terms of this Pledge Agreement and shall constitute Pledged Collateral hereunder; provided,
however, that nothing contained in this Section 3 shall be deemed to permit any distribution or distribution,
issuance of additional stock, warrants, rights or options, reclassification, readjustment or other change in the
capital structure of the Pledged Subsidiary which is not expressly permitted in the Credit Agreement.
4. Subsequent Changes Affecting Pledged Collateral. Pledgor represents and warrants that it has
made its own arrangements for keeping itself informed of changes or potential changes affecting the Pledged
Collateral (including, but not limited to, rights to convert, rights to subscribe, payment of dividends, cash
distributions or other distributions reorganization or other exchanges, tender offers and voting rights), and
Pledgor agrees that neither the Agent nor any of the Holders of Secured Obligations shall have any obligation to
inform Pledgor of any such changes or potential changes or to take any action or omit to take any action with
respect thereto. The Agent may, after the occurrence and during the continuance of a Default, without notice and
at its option, transfer or register the Pledged Collateral or any part thereof into its or its nominee's name
with or without any indication that such Pledged Collateral is subject to the security interest hereunder.
5. Representations and Warranties. Pledgor represents and warrants as follows:
(a) Pledgor is the legal and beneficial owner of 100% of the issued and outstanding
limited liability company and membership interests and units of the Pledged Subsidiary, free and clear
of any Lien except for the security interest created by this Pledge Agreement;
(b) Pledgor has full corporate power and authority to enter into this Pledge Agreement;
(c) There are no restrictions upon the voting rights associated with, or upon the transfer
of, any of the Pledged Collateral;
(d) Pledgor has the right to vote, pledge and grant a security interest in or otherwise
transfer such Pledged Collateral free of any Liens;
(e) Pledgor owns the Pledged Collateral free and clear of any pledge, mortgage,
hypothecation, lien, charge, encumbrance or any security interest therein, except for the pledge and
security interest granted to the Agent and the Holders of Secured Obligations hereunder;
(f) The pledge of the Pledged Collateral does not violate (1) the articles or by-laws,
Operating Agreements or Partnership Agreements, as applicable, of the Pledged Subsidiary, or any
indenture, mortgage, bank loan or credit agreement to which either the Pledgor or the Pledged
Subsidiary is a party or by which any of their respective properties or assets may be bound; or (2) any
restriction on such transfer or encumbrance of such Pledged Collateral;
(g) Pledgor agrees to execute and file financing statements pursuant to the Uniform
Commercial Code as the Agent may reasonably request to perfect the security interest granted hereby;
(h) No authorization, approval, or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required either (i) for the pledge of the Pledged
Collateral pursuant to this Pledge Agreement or for the execution, delivery or performance of this
Pledge Agreement by the Pledgor or (ii) for the exercise by the Agent of the voting or other rights
provided for in this Pledge Agreement or the remedies in respect of the Pledged Collateral pursuant to
this Pledge Agreement (except as may be required in connection with such disposition by laws affecting
the offering and sale of securities generally);
(i) Pledgor has no obligation to make further capital contributions or make any other
payments to the Pledged Subsidiary with respect to its interest therein.
6. Voting Rights. During the term of this Pledge Agreement, and except as provided in this Section
6 below, Pledgor shall have the right to exercise all voting powers pertaining to the Pledged Collateral for any
purpose in a manner not inconsistent with the terms of this Pledge Agreement, the Credit Agreement and any other
agreement, instrument or document executed pursuant thereto or in connection therewith. After the occurrence and
during the continuance of a Default, the Agent or the Agent's nominee may, at the Agent's or such nominee's
option and following written notice from the Agent to the Pledgor, (i) exercise all voting powers pertaining to
the Pledged Collateral and (ii) exercise, or direct the Pledgor as to the exercise of any and all rights of
conversion, exchange, subscription or any other rights, privileges or options pertaining to the applicable
Pledged Collateral, as if the Agent were the absolute owner thereof, all without liability except to account for
property actually received by it, but the Agent shall have no duty to exercise any of the aforesaid rights,
privileges or options and shall not be responsible for any failure so to do or delay in so doing. Such
authorization shall constitute an irrevocable voting proxy from the Pledgor to the Agent or, at the Agent's
option, to the Agent's nominee.
7. Dividends and Other Distributions. (a) So long as no Default shall have occurred and is
continuing:
(i) The Pledgor shall be entitled to receive and retain any and all dividends, cash
distributions and interest paid in respect of the Pledged Collateral to the extent such distributions
are not prohibited by the Credit Agreement, provided, however, that any and all
(A) distributions, dividends and interest paid or payable other than in cash with
respect to, and instruments and other property received, receivable or otherwise distributed
with respect to, or in exchange for, any of the Pledged Collateral;
(B) dividends and other distributions paid or payable in cash with respect to any
of the Pledged Collateral on account of a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or paid-in surplus; and
(C) cash paid, payable or otherwise distributed with respect to principal of, or
in redemption of, or in exchange for, any of the Pledged Collateral;
shall be Pledged Collateral, and shall be forthwith delivered to the Agent to hold, for the benefit of
the Agent and the Holders of Secured Obligations, as Pledged Collateral and shall, if received by the
Pledgor, be received in trust for the Agent, for the benefit of the Agent and the Holders of Secured
Obligations, be segregated from the other property or funds of the Pledgor, and be delivered immediately
to the Agent as Pledged Collateral in the same form as so received (with any necessary endorsement); and
(ii) The Agent shall execute and deliver (or cause to be executed and delivered) to the
Pledgor all such proxies and other instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to receive the dividends or interest payments which it is authorized to receive and
retain pursuant to clause (i) above.
(b) After the occurrence and during the continuance of a Default:
(i) All rights of the Pledgor to receive the dividends, distributions and interest
payments which it would otherwise be authorized to receive and retain pursuant to Section 7(a)(i) hereof
shall cease, and all such rights shall thereupon become vested in the Agent, for the benefit of the
Agent and the Holders of Secured Obligations, which shall thereupon have the sole right to receive and
hold as Pledged Collateral such dividends, distributions and interest payments;
(ii) All dividends, distributions and interest payments which are received by the Pledgor
contrary to the provisions of clause (i) of this Section 7(b) shall be received in trust for the Agent,
for the benefit of the Agent and the Holders of Secured Obligations, shall be segregated from other
funds of the Pledgor and shall be paid over immediately to the Agent as Pledged Collateral in the same
form as so received (with any necessary endorsements).
8. Transfers and Other Liens. Except as permitted in the Credit Agreement, Pledgor agrees that it
will not (i) sell or otherwise dispose of, or grant any option with respect to, any of the Pledged Collateral
without the prior written consent of the Agent, or (ii) create or permit to exist any Lien upon or with respect
to any of the Pledged Collateral, except for the security interest under this Pledge Agreement.
9. Remedies. (a) The Agent shall have, in addition to any other rights given under this Pledge
Agreement or by law, all of the rights and remedies with respect to the Pledged Collateral of a secured party
under the Uniform Commercial Code as in effect in the State of Illinois. The Agent (personally or through an
agent) is hereby authorized and empowered to transfer and register in its name or in the name of its nominee the
whole or any part of the Pledged Collateral, subject to Section 6 hereto, to exercise all voting rights with
respect thereto, subject to Section 7 hereto, to collect and receive all cash dividends or distributions and
other distributions made thereon, and to otherwise act with respect to the Pledged Collateral as though the Agent
were the outright owner thereof, each Pledgor hereby irrevocably constituting and appointing the Agent as the
proxy and attorney-in-fact of such Pledgor, with full power of substitution to do so, provided, however, that the
Agent shall have no duty to exercise any such right or to preserve the same and shall not be liable for any
failure to do so or for any delay in doing so; provided, further, however that the Agent agrees to exercise such
proxy and powers to transfer and register the Pledged Collateral only so long as a Default shall have occurred
and is continuing. In addition, after the occurrence and during the continuance of a Default, the Agent shall
have such powers of sale and other powers as may be conferred by applicable law and regulatory requirements. With
respect to the Pledged Collateral or any part thereof which shall then be in or shall thereafter come into the
possession or custody of the Agent or which the Agent shall otherwise have the ability to transfer under
applicable law, the Agent may, in its sole discretion, without notice except as specified below, after the
occurrence and during the continuance of a Default, sell or cause the same to be sold at any broker's board or at
public or private sale, in one or more sales or lots, at such price as the Agent may deem best, for cash or on
credit or for future delivery, without assumption of any credit risk, and the purchaser of any or all of the
Pledged Collateral so sold shall thereafter own the same, absolutely free from any claim, encumbrance or right of
any kind whatsoever. The Agent and each of the Holders of Secured Obligations may, in its own name, or in the
name of a designee or nominee, buy the Pledged Collateral at any public sale and, if permitted by applicable law,
buy the Pledged Collateral at any private sale. Pledgor will pay to the Agent all reasonable expenses (including,
without limitation, court costs and reasonable attorneys' and paralegals' fees and expenses) of, or incidental
to, the enforcement of any of the provisions hereof. The Agent agrees to distribute any proceeds of the sale of
the Pledged Collateral in accordance with the Credit Agreement and the Pledgor shall remain liable for any
deficiency following the sale of the Pledged Collateral.
(b) Unless any of the Pledged Collateral threatens to decline speedily in value or is or
becomes of a type sold on a recognized market, the Agent will give the Pledgor reasonable notice of the
time and place of any public sale thereof, or of the time after which any private sale or other intended
disposition is to be made. Any sale of the Pledged Collateral conducted in conformity with reasonable
commercial practices of banks, commercial finance companies, insurance companies or other financial
institutions disposing of property similar to the Pledged Collateral shall be deemed to be commercially
reasonable. Notwithstanding any provision to the contrary contained herein, Pledgor agrees that any
requirements of reasonable notice shall be met if such notice is received by Pledgor as provided in
Section 21 below at least five (5) Business Days before the time of the sale or disposition; provided,
however, that Agent may give any shorter notice that is commercially reasonable under the circumstances.
Any other requirement of notice, demand or advertisement for sale is waived, to the extent permitted by
law.
10. Agent Appointed Attorney-in-Fact. Pledgor hereby appoints the Agent its attorney-in-fact, with
full authority, in the name of Pledgor or otherwise, from time to time in the Agent's sole discretion, to take
any action and to execute any instrument which the Agent may deem necessary or advisable to accomplish the
purposes of this Pledge Agreement, including, without limitation, to receive, endorse and collect all instruments
made payable to Pledgor representing any dividend, distribution, interest payment or other distribution in
respect of the Pledged Collateral or any part thereof and to give full discharge for the same and to arrange for
the transfer of all or any part of the Pledged Collateral on the books of the Pledged Subsidiary to the name of
the Agent or the Agent's nominee; provided, however, that the Agent agrees to exercise such powers only so long
as a Default shall have occurred and is continuing.
11. Waivers. (i) Pledgor waives presentment and demand for payment of any of the Secured
Obligations, protest and notice of dishonor or Default with respect to any of the Secured Obligations and all
other notices to which the Pledgor might otherwise be entitled except as otherwise expressly provided herein or
in the Credit Agreement.
(ii) Pledgor understands and agrees that its obligations and liabilities under this Pledge
Agreement shall remain in full force and effect, notwithstanding foreclosure of any real property securing all or
any part of the Secured Obligations by trustee sale or any other reason impairing the right of Pledgor, the Agent
or any of the Holders of Secured Obligations to proceed against the Pledged Subsidiary, any other guarantor or
the Pledged Subsidiary or such guarantor's property. Pledgor agrees that all of its obligations under this Pledge
Agreement shall remain in full force and effect without defense, offset or counterclaim of any kind,
notwithstanding that Pledgor's rights against the Pledged Subsidiary may be impaired, destroyed or otherwise
affected by reason of any action or inaction on the part of the Agent or any Holder of Secured Obligations. By
way of example and without limiting the foregoing, if the Agent shall release or foreclose by private power of
sale any real property that secures the Secured Obligations, then notwithstanding that the Pledged Subsidiary may
be entitled thereby to assert a defense against such Secured Obligations (and thus also against its obligations
to Pledgor to the extent that Pledgor may be subrogated to the rights of the Holders of Secured Obligations)
based upon the applicability of California Code of Civil Procedure Section 580d or other antideficiency laws,
Pledgor nonetheless shall remain fully obligated hereunder. Pledgor waives all defenses, protections and benefits
of Sections 580a, 580b, 580d and 726 of the California Code of Civil Procedure, and all judicial decisions
construing or pertaining to the same, and all rules and principles of like kind or similar effect (including,
without limitation, the so-called one-action rule, the one-form-of-action rule and the security-first rule), in
each case as applicable to or in favor of Pledgor, the Pledged Subsidiary or otherwise. In addition, Pledgor
hereby waives, to the fullest extent permitted by law, without limiting the generality of the foregoing or any
other provision hereof, all rights and benefit under California Civil Code Sections 2810, 2819, 2839, 2845, 2849,
2850, 2899, and 3433 (or any similar law in any other jurisdiction).
(iii) Pledgor hereby expressly waives the benefits of Section 2815 of the California Civil Code
(or any similar law in any other jurisdiction) purporting to allow a guarantor or pledgor to revoke a continuing
guaranty or pledge with respect to any transactions occurring after the date of the guaranty or pledge.
12. Term. This Pledge Agreement shall remain in full force and effect until the Secured Obligations
have been fully and indefeasibly paid in cash (other than contingent indemnification obligations) and the Credit
Agreement has terminated pursuant to its terms. Upon the termination of this Pledge Agreement as provided above
(other than as a result of the sale of the Pledged Collateral), the Agent will release the security interest
created hereunder.
13. Definitions. The singular shall include the plural and vice versa and any gender shall include
any other gender as the context may require.
14. Successors and Assigns. This Pledge Agreement shall be binding upon and inure to the benefit of
Pledgor, the Agent, for the benefit of itself and the Holders of Secured Obligations, and their respective
successors and assigns. Pledgor's successors and assigns shall include, without limitation, a receiver, trustee
or debtor-in-possession of or for the Pledgor.
15. GOVERNING LAW. ANY DISPUTE AMONG THE PLEDGORS AND THE AGENT, ANY HOLDER OF SECURED OBLIGATIONS
OR ANY INDEMNITEE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS PLEDGE AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN
CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT
LIMITATION, 735 ILCS SECTION 105/5-1 ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF
THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
16. CONSENT TO JURISDICTION: SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF THE PARTIES
HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS PLEDGE AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS
LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO
BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES
BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING
THE DISPUTE.
(B) OTHER JURISDICTIONS. PLEDGOR AGREES THAT THE AGENT, ANY HOLDER OF SECURED OBLIGATIONS
OR ANY INDEMNITEE SHALL HAVE THE RIGHT TO PROCEED AGAINST THE PLEDGOR OR ITS PROPERTY IN A COURT IN ANY LOCATION
TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE PLEDGOR OR (2) REALIZE ON THE PLEDGED
COLLATERAL OR ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. PLEDGOR AGREES THAT IT
WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON THE PLEDGED
COLLATERAL OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON. PLEDGOR WAIVES ANY OBJECTION
THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN THIS
SUBSECTION (B).
(C) SERVICE OF PROCESS; VENUE. PLEDGOR WAIVES PERSONAL SERVICE OF ANY PROCESS UPON
IT AND IRREVOCABLY APPOINTS THE PRENTICE HALL CORPORATION SYSTEM, INC., WHOSE ADDRESS IS ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, AS PLEDGOR'S AGENT, FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS ISSUED
BY ANY COURT IN CONNECTION WITH ANY DISPUTE BETWEEN THE PLEDGOR AND THE AGENT ARISING OUT OF OR RELATED
TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS PLEDGE AGREEMENT OR ANY OTHER LOAN
DOCUMENT TO WHICH THE PLEDGOR IS A PARTY. EACH OF THE PLEDGOR AND THE AGENT IRREVOCABLY WAIVES ANY OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS PLEDGE AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT
OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH
THIS PLEDGE AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
(E) WAIVER OF BOND. PLEDGOR WAIVES THE POSTING OF ANY BOND OTHERWISE REQUIRED OF ANY PARTY
HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO REALIZE ON THE COLLATERAL, OR TO ENFORCE ANY
JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY
RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY HERETO THAT IT HAS
DISCUSSED THIS PLEDGE AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF THIS SECTION 16, WITH ITS COUNSEL.
17. No Strict Construction. The parties hereto have participated jointly in the negotiation and
drafting of this Pledge Agreement. In the event an ambiguity or question of intent or interpretation arises, this
Pledge Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Pledge
Agreement.
18. Severability. Whenever possible, each provision of this Pledge Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but, if any provision of this Pledge Agreement
shall be held to be prohibited or invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Pledge Agreement.
19. Further Assurances. Pledgor agrees that it will cooperate with the Agent and will execute and
deliver, or cause to be executed and delivered, all such other stock powers, proxies, instruments and documents,
and will take all such other actions, including, without limitation, the execution and filing of financing
statements, as the Agent may reasonably request from time to time in order to carry out the provisions and
purposes of this Pledge Agreement.
20. The Agent's Duty of Care. The Agent shall not be liable for any acts, omissions, errors of
judgment or mistakes of fact or law including, without limitation, acts, omissions, errors or mistakes with
respect to the Pledged Collateral, except for those arising out of or in connection with the Agent's (i) Gross
Negligence or willful misconduct, or (ii) failure to use reasonable care with respect to the safe custody of the
Pledged Collateral in the Agent's possession. Without limiting the generality of the foregoing, the Agent shall
be under no obligation to take any steps necessary to preserve rights in the Pledged Collateral against any other
parties but may do so at its option. All expenses incurred in connection therewith shall be for the sole account
of the Pledgor, and shall constitute part of the Secured Obligations.
21. Notices. All notices and other communications provided to any party hereto under this Agreement
shall be in writing or by facsimile and addressed or delivered to such party at its address set forth below or at
such other address as may be designated by such party in a notice to the other parties. Any notice, if mailed and
properly addressed with postage prepaid, shall be deemed given when received; any notice, if transmitted by telex
or facsimile, shall be deemed given when transmitted (answerback confirmed in the case of facsimile
transmission).
if to Pledgor:
South Central Pool Supply, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice to Pledgor) to:
Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Agent:
LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
22. Amendments, Waivers and Consents. No amendment or waiver of any provision of this Pledge
Agreement nor consent to any departure by the Pledgor herefrom, shall in any event be effective unless the same
shall be in writing and signed by the Agent pursuant to the terms of the Credit Agreement, and then such
amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given.
23. Section Headings. The section headings herein are for convenience of reference only, and shall
not affect in any way the interpretation of any of the provisions hereof.
24. Execution in Counterparts. This Pledge Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which shall together constitute one and the same agreement.
[remainder of page intentionally left blank]
Pledge Agreement- SCP Acquisition
IN WITNESS WHEREOF, the Pledgors and the Agent have executed this Pledge Agreement as of the date set
forth above.
SOUTH CENTRAL POOL SUPPLY, INC.
By: /S/
Name:_______________________________
Title:_______________________________
LASALLE BANK NATIONAL ASSOCIATION, as agent for itself and
the Holders of Secured Obligations
By: /S/
Name:_______________________________
Title:________________________________
Pledge Agreement- SCP Acquisition
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the foregoing Pledge Agreement, agrees promptly
to note on its books the security interests granted under such Pledge Agreement, and waives any rights or
requirement at any time hereafter to receive a copy of such Pledge Agreement in connection with the registration
of any Pledged Collateral in the name of the Agent or its nominee or the exercise of voting rights by the Agent
or its nominee.
SCP SUPERIOR ACQUISITION COMPANY LLC, a Delaware limited
liability company
By: /S/
Name:_______________________________
Title:________________________________
EXHIBIT B
SECURITY AGREEMENT
SECURITY AGREEMENT ("Agreement"), dated as of July 31, 2000, made by SCP SUPERIOR ACQUISITION
COMPANY LLC, a Delaware limited liability company ("Grantor"), in favor of LASALLE BANK NATIONAL ASSOCIATION, in
its capacity as contractual representative for itself and the other "Lenders" (as defined below) (in such
capacity, the "Agent") for its benefit and for the benefit of the "Holders of Secured Obligations" (as defined
below) who are, or may hereafter become, parties to the Credit Agreement referred to below.
PRELIMINARY STATEMENT
WHEREAS, South Central Pool Supply, Inc. (the "Borrower") has entered into a certain Third Amended and
Restated Credit Agreement dated as of December 31, 1997 among, the Borrower, the institutions from time to time
party thereto as lenders (the "Lenders") and the Agent, as amended (as the same has been and further may be
amended, modified, supplemented or restated from time to time, the "Credit Agreement"), providing for the making
of loans, advances and other financial accommodations (including, without limitation, issuing letters of credit)
(all such loans, advances and other financial accommodations being hereinafter referred to collectively as the
"Loans") to or for the benefit of the Borrower;
WHEREAS, the Borrower owns 100% of the issued and outstanding limited liability company and membership
interests and units of Grantor and, accordingly, Grantor will derive direct and indirect economic benefit from
the Loans and other financial accommodations made to the Borrower under the Credit Agreement;
WHEREAS, to secure the Loans, among other things, the Borrower shall have pledged its interests in
Grantor to the Agent for its benefit and the benefit of the Holders of the Secured Obligations;
WHEREAS, Grantor joined, or shall join, that certain Guaranty dated December 31, 1998 (as the same may
be amended, modified, supplemented or restated from time to time, the "Guaranty") in favor of the Agent for its
benefit and the benefit of Holders of Secured Obligations which will provide for the guarantee of the Secured
Obligations of the Borrower;
WHEREAS, as a condition under the Credit Agreement, Grantor is required to execute and deliver, and
perform its obligations under, this Agreement to secure the "Liabilities" (as defined herein);
NOW, THEREFORE, in consideration of the premises set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:
15
Defined Terms. Unless otherwise defined herein, terms defined in the Credit Agreement are used herein
as therein defined, and the following terms shall have the following meanings (such meanings being equally
applicable to both the singular and the plural forms of the terms defined):
"Agreement" shall mean this Security Agreement, as the same may from time to time be further amended,
restated, modified or supplemented, and shall refer to this Agreement as the same may be in effect at the time
such reference becomes operative.
"Collateral" shall mean all property and rights in property now owned or hereafter at any time acquired
by Grantor in or upon which a Lien is granted in favor of the Agent by Grantor or a Subsidiary of Grantor under
this Agreement, including, without limitation, the property described in Section 2.
"Holders of Secured Obligations" shall mean the holders of the Secured Obligations from time to time and
shall include their respective successors, transferees and assigns.
"Notification Period" shall mean the period from and after the date on which the Agent notifies,
following the occurrence and during the continuance of a Default, a Restricted Account Bank, in writing, that the
Agent is exercising its rights under the applicable Restricted Account Agreement until the date on which the
Agent notifies, promptly following the absence or curing of any Default, such Restricted Account Bank that it is
withdrawing such notice.
"UCC" shall mean the Uniform Commercial Code as the same may, from time to time, be in effect in the
State of Illinois; provided, however, in the event that, by reason of mandatory provisions of law, any or all of
the attachment, perfection or priority of the Agent's and the Holders of Secured Obligations' security interest
in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State
of Illinois, the term "UCC" shall mean the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
SECTION 1. Grant of Security. To secure the prompt and complete payment, observance and performance of
(i) obligations and liabilities of Grantor under the Guaranty between the parties to this Agreement; and (ii) the
Grantor's obligations and liabilities under this Agreement and each document, instrument, or agreement executed
in connection with or pursuant to this Agreement (all such liabilities and obligations of Grantor now or
hereafter existing being, hereinafter referred to as the "Liabilities"), Grantor hereby assigns and pledges to
Agent, for the benefit of itself and the Holders of Secured Obligations, and hereby grants to Agent, for the
benefit of itself and the Holders of Secured Obligations, a security interest in all of Grantor's right, title
and interest in and to the following, whether now owned or existing, or hereafter arising or acquired and
wheresoever located:
ACCOUNTS: All "accounts" as such term is defined in Section 9-106 of the UCC, whether now owned or
hereafter acquired or arising, and shall include, without limitation all present and future accounts, accounts
receivable and other rights of Grantor to payment for goods sold or leased or for services rendered (except those
evidenced by instruments or chattel paper), whether now existing or hereafter arising and wherever arising, and
whether or not they have been earned by performance (collectively, "Accounts");
INVENTORY: All "inventory" as defined in Section 9-109(4) of the UCC, whether now owned or hereafter
acquired or arising, and shall include, without limitation, all goods now owned or hereafter acquired by Grantor
(wherever located, whether in the possession of Grantor or of a bailee or other person for sale, storage,
transit, processing, use or otherwise and whether consisting, of whole goods, spare parts, components, supplies,
materials, or consigned, returned or repossessed goods) which are held for sale or lease, which are to be
furnished (or have been furnished) under any contract of service or which are raw materials, work in process or
materials used or consumed in Grantor's business (collectively, "Inventory");
EQUIPMENT: All "equipment" as such term is defined in Section 9-109(2) of the UCC, whether now owned or
hereafter acquired or arising, and shall include, without limitation, all machinery, all manufacturing,
distribution, selling, data processing, and office equipment, all furniture, furnishings, appliances, fixtures
and trade fixtures, tools, tooling, molds, dies, vehicles, vessels, trucks, buses, motor vehicles and all other
goods of every type and description (other than Inventory), in each instance whether now owned or hereafter
acquired by Grantor and wherever located (collectively, "Equipment");
GENERAL INTANGIBLES: All "general intangibles" as defined in Section 9-106 of the UCC, whether now owned
or hereafter acquired or arising, and shall include, without limitation, all rights, interests, choices in
action, causes of actions, claims and all other intangible property of Grantor of every kind and nature (other
than Accounts), in each instance whether now owned or hereafter acquired by Grantor and however and whenever
arising, including, without limitation, all corporate and other business records; all loans, royalties, and other
obligations receivable; customer lists, credit files, correspondence, and advertising materials; firm sale
orders, other contracts and contract rights; all interests in partnerships and joint ventures; all tax refunds
and tax refund claims; all right, title and interest under leases, subleases, licenses and concessions and other
agreements relating to real or personal property; all payments due or made to Grantor in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of any property by any person or governmental
authority; all deposit accounts (general or special) with any bank or other financial institution, including,
without limitation, any deposits or other sums at any time credited by or due to Grantor from any of the Holders
of Secured Obligations or any of their respective Affiliates with the same rights therein as if the deposits or
other sums were credited by or due from such Holder of Secured Obligations: all credits with and other claims
against carriers and shippers; all rights to indemnification; all patents, and patent applications (including all
reissues, divisions, continuations and extensions); all trade secrets and inventions; all copyrights (including
all computer software and related documentation); all rights and interests in and to trademarks, trademark
registrations and applications therefor, trade names, corporate names, brand names, slogans, all goodwill
associated with the foregoing; all license agreements and franchise agreements, all reversionary interests in
pension and profit sharing plans and reversionary, beneficial and residual interest in trusts; all proceeds of
insurance of which Grantor is beneficiary; and all letters of credit, guaranties, liens, security interests and
other security held by or granted to Grantor; and all other intangible property, whether or not similar to the
foregoing;
LAB PROCESSING AND ENGINEERING INFORMATION: All rights and interests in and to processes, lab journals,
and notebooks, data, trade secrets, know-how, product formulae and information, manufacturing, engineering and
other drawings and manuals, technology, blueprints, research and development reports, agency agreements,
technical information, technical assistance, engineering data, design and engineering specifications, and similar
materials recording or evidencing expertise used in or employed by Grantor (including any license for the
foregoing);
CONTRACT RIGHTS: All rights and interests in and to any pending or executory contracts, requests for
quotations, invitations for bid, agreements, leases and arrangements of which Grantor is a party to or has an
interest in;
CHATTEL PAPER, INSTRUMENTS AND DOCUMENTS: All chattel paper, leases, all instruments, including, without
limitation, the notes and debt instruments described in Schedule I (the "Pledged Debt") and all payments
thereunder and instruments and other property from time to time delivered in respect thereof or in exchange
therefor, and all bills of sale, bills of lading, warehouse receipts and other documents of title, in each
instance whether now owned or hereafter acquired by Grantor;
INVESTMENT PROPERTY: All "investment property" as such term is defined in Section 9-115(f) of the UCC,
whether now owned or hereafter acquired or arising, and shall include, without limitation, all securities,
financial assets, security entitlements, securities accounts, commodities contracts, and commodities accounts in
each instance whether now owned or hereafter acquired by Grantor ("Investment Property");
INTEREST AND CURRENCY CONTRACTS: Any and all interest rate or currency exchange agreements, including
without limitation, cap, collar, floor, forward or similar agreements or other rate protection arrangements; and
OTHER PROPERTY: All property or interests in property now owned or hereafter acquired by Grantor which
now may be owned or hereafter may come into the possession, custody or control of Agent or any of the Holders of
Secured Obligations or any agent or Affiliate of any of them in any way and for any purpose (whether for
safekeeping, deposit, custody, pledge, transmission, collection or otherwise); and all rights and interests of
Grantor, now existing or hereafter arising and however and wherever arising, in respect of any and all (i) notes,
drafts, letters of credit, stocks, bonds, and debt and equity securities, whether or not certificated, and
warrants, options, puts and calls and other rights to acquire or otherwise relating to the same; (ii) money or
deposit accounts; (iii) proceeds of loans, including, without limitation, loans made under the Credit Agreement;
and (iv) insurance proceeds and books and records relating to any of the property covered by this Agreement;
together, in each instance, with all accessions and additions thereto, substitutions therefor, and replacements,
proceeds and products thereof.
SECTION 2. Authorization. Grantor hereby authorizes Agent to retain and each Holder of Secured
Obligations, and each Affiliate of Agent and of each Holder of Secured Obligations, to pay or deliver to Agent,
for the benefit of the Holders of Secured Obligations, without any necessity on any Holder of Secured
Obligation's part to resort to other security or sources of reimbursement for the Liabilities, at any time
following the occurrence and during the continuance of any Default, and without further notice to Grantor (such
notice being expressly waived), any of the deposits referred to in Section 2 (whether general or special, time or
demand, provisional or final) or other sums or property held by such Person, for application against any portion
of the Liabilities, irrespective of whether any demand has been made or whether such portion of the Liabilities
is mature. Agent will promptly notify Grantor of Agent's receipt of such funds or other property for application
against the Liabilities, but failure to do so will not affect the validity or enforceability thereof. Agent may
give notice of the above grant of security interest and assignment of the aforesaid deposits and other sums, and
authorization, to, and make any suitable arrangements with, any such Holder of Secured Obligations for
effectuation thereof, and Grantor hereby irrevocably appoints Agent as its attorney to collect, following the
occurrence and during the continuance of a Default, any and all such deposits or other sums to the extent any
such payment is not made to Agent by such Holder of Secured Obligation or Affiliate thereof.
SECTION 3. Grantor Remains Liable. Anything herein to the contrary notwithstanding, (a) Grantor shall
remain solely liable under the contracts and agreements included in the Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not
been executed, (b) the exercise by Agent of any of its rights hereunder shall not release Grantor from any of its
duties or obligations under the contracts and agreements included in the Collateral, and (c) neither Agent nor
the Holders of Secured Obligations shall have any responsibility, obligation or liability under the contracts and
agreements included in the Collateral by reason of this Agreement, nor shall Agent or the Holders of Secured
Obligations be required or obligated, in any manner, to (i) perform or fulfill any of the obligations or duties
of Grantor thereunder, (ii) make any payment, or make any inquiry as to the nature or sufficiency of any payment
received by Grantor or the sufficiency of any performance by any party under any such contract or agreement or
(iii) present or file any claim, or take any action to collect or enforce any claim for payment assigned
hereunder.
SECTION 4. Representations and Warranties. Grantor represents and warrants, as of the date of this
Agreement and as of each date hereafter (except for changes permitted or contemplated by this Agreement) until
termination of this Agreement pursuant to Section 25:
(a) The correct corporate name of Grantor is set forth in the first paragraph of this
Agreement. The locations listed on Schedule 2 constitute all locations at which Inventory and/or
Equipment is located and Grantor has exclusive possession and control of such Equipment and Inventory,
except for such Inventory and Equipment which is (i) temporarily in transit between such locations, or
(ii) temporarily stored with third parties or held by third parties for processing, engineering,
evaluation or repairs the proper corporate names of which third parties, the location of such Inventory
and/or Equipment, the nature of the relationship between Grantor and such third parties, and the maximum
value of Inventory and/or Equipment at such third parties is set forth in Schedule 2-A. Schedule 2 may
be amended to reflect additional locations acquired in connection with Permitted Acquisitions. The chief
place of business and chief executive office of Grantor are located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. All records concerning any Accounts and all originals of all chattel paper
which evidence any Account are located at the addresses listed on Schedule 2 and none of the Accounts is
evidenced by a promissory note or other instrument except for such notes and other instruments delivered
to Agent;
(b) Grantor is the legal and beneficial owner of the Collateral free and clear of all
Liens except for Liens permitted by the terms of the Credit Agreement and, in certain areas and for
certain operations, the trade names listed on Schedule 3;
(c) This Agreement creates in favor of Agent a legal, valid and enforceable security
interest in the Collateral. When financing statements have been filed in the appropriate offices against
Grantor in the locations listed on Schedule 2-B, Agent will have a fully perfected first priority lien
on, and security interest in, the Collateral in which a security interest may be perfected by such
filing, subject only to Liens permitted by the applicable terms of the Credit Agreement;
(d) No authorization, approval or other action by, and no notice to or filing with, any
Governmental Authority that have not already been taken or made and which are in full force and effect,
are required (i) for the grant by Grantor of the security interest in the Collateral granted hereby;
(ii) the execution, delivery or performance of this Agreement by Grantor; or (iii) for the exercise by
Agent of any of its other rights or remedies hereunder;
(e) The Pledged Debt issued by any Affiliate of Grantor, and to the best of Grantor's
knowledge, all other Pledged Debt, has been duly authorized, issued and delivered, and is the legal,
valid, binding and enforceable obligation of the respective issuers thereof; and
(f) Schedule 4 contains a completed list of all of the deposit accounts of Grantor and
Grantor will amend and update Schedule 4 by delivering supplemental reports to Agent on a calendar
quarterly basis unless more frequently requested by the Agent.
SECTION 5. Perfection and Maintenance of Security Interest and Lien. Grantor agrees that until
all of the Liabilities (other than contingent indemnity Obligations) have been fully satisfied and the Credit
Agreement has been terminated, Agent's security interests in and Liens on and against the Collateral and all
proceeds and products thereof, shall continue in full force and effect. Grantor shall perform any and all steps
reasonably requested by Agent to perfect, maintain and protect Agent's security interests in and Liens on and
against the Collateral granted or purported to be granted hereby or to enable Agent to exercise its rights and
remedies hereunder with respect to any Collateral, including, without limitation, (i) executing and filing
financing or continuation statements, or amendments thereof, in form and substance reasonably satisfactory to
Agent, (ii) delivering to Agent all certificates, notes and other instruments (including, without limitation, all
letters of credit on which Grantor is named as a beneficiary) representing or evidencing Collateral duly endorsed
and accompanied by duly executed instruments of transfer or assignment, including, but not limited to, note
powers, all in form and substance satisfactory to Agent, (iii) delivering to Agent warehouse receipts covering
that portion of the Collateral, if any, located in warehouses and for which warehouse receipts are issued,
(iv) after the occurrence and during the continuance of a Default, transferring, Inventory and Equipment to
warehouses designated by Agent or taking such other steps as are deemed necessary by Agent to maintain Agent's
control of the Inventory and Equipment, (v) marking conspicuously each document, contract, chattel paper and all
records pertaining to the Collateral with a legend, in form and substance satisfactory to Agent, indicating that
such document, contract, chattel paper, or Collateral is subject to the security interest granted herein, (vi)
using its best efforts to obtain as soon as reasonably possible, but in no event later than 30 days after the
date hereof, waivers of Liens and access agreements in substantially the form of Exhibit A hereto (or such other
form as may be agreed to by the Agent) from landlords and mortgagees with respect to the Grantor's leased
premises as of the date hereof, (vii) using its reasonable good faith efforts to obtain waivers of Liens and
access agreements in substantially the form of Exhibit A hereto (or such other form as may be agreed to by the
Agent) from landlord and mortgagees with respect to all premises leased after the date hereof; and
(viii) executing and delivering all further instruments and documents, and taking all further action, as Agent may
reasonably request.
SECTION 6. Financing Statements. To the extent permitted by applicable law, Grantor hereby
authorizes Agent to file one or more financing or continuation statements and amendments thereto, disclosing the
security interest granted to Agent under this Agreement without Grantor's signature appearing thereon and Agent
agrees to notify Grantor when such a filing has been made. Grantor agrees that a carbon, photographic,
photostatic, or other reproduction of this Agreement or of a financing statement is sufficient as a financing
statement. If any Inventory or Equipment is in the possession or control of any warehouseman or Grantor's agents
or processors, Grantor shall, upon Agent's request, notify such warehouseman, agent or processor of Agent's
security interest in such Inventory and Equipment and, upon Agent's request, instruct them to hold all such
Inventory or Equipment for Agent's account and subject to Agent's instructions.
SECTION 7. Filing Costs. Grantor shall pay the costs of, or incidental to, all recordings or
filings of all financing statements, including, without limitation, any filing expenses incurred by Agent
pursuant to Section 7.
SECTION 8. Schedule of Collateral. Grantor shall furnish to Agent from time to time statements
and schedules further identifying and describing the Collateral and such other reports in connection with the
Collateral as Agent may reasonably request, all in reasonable detail.
SECTION 9. Equipment and Inventory. Grantor covenants and agrees with Agent that from the date of this
Agreement and until termination of this Agreement pursuant to Section 25, Grantor shall:
(a) Keep the Equipment and Inventory (other than Equipment or Inventory sold in the
ordinary course of business) at the places specified in Section 5(a), except for Equipment and Inventory
(i) temporarily in transit between such locations or (ii) temporarily stored with the third parties set
forth on Schedule 2-A in amounts not in excess of the maximum amounts indicated for each such location,
and deliver written notice to Agent at least thirty (30) days prior to establishing any other location
at which or third party with which it reasonably expects to maintain Inventory and/or Equipment in which
location or with which third party all action required by this Agreement shall have been taken with
respect to all such Equipment and Inventory;
(b) Maintain or cause to be maintained in good repair, working, order and condition,
excepting, ordinary wear and tear and damage due to casualty, all of the Equipment, and make or cause to
be made all appropriate repairs, renewals and replacements thereof, as quickly as practicable after the
occurrence of any loss or damage thereto which are necessary or desirable to such end;
(c) Comply with the terms of the Credit Agreement with respect to such Equipment and
Inventory, including, without limitation, the maintenance and insurance provisions set forth in the
Credit Agreement;
SECTION 10. Accounts. Grantor covenants and agrees with Agent that from and after the date of this
Agreement and until termination of this Agreement pursuant to Section 25, Grantor shall:
(a) Keep its chief place of business and chief executive office and the office where it
keeps its records concerning the Accounts at its address set forth in Section 5(a) hereof, and keep the
offices where it keeps all originals of all chattel paper which evidence Accounts, at the locations
therefor specified in Section 5(a) or, upon thirty (30) days prior written notice to Agent, at such
other locations within the United States in a jurisdiction where all actions required by Section 6 shall
have been taken with respect to the Accounts. Grantor will hold and preserve such records (in accordance
with Grantor's usual document retention practices) and chattel paper and will permit representatives of
Agent at any time during normal business hours to inspect and make abstracts from such records and
chattel paper; and
(b) In any suit, proceeding or action brought by Agent under any Account comprising part
of the Collateral, Grantor will save, indemnify and keep each of the Holders of Secured Obligations
harmless from and against all expenses, loss or damage suffered by reason of any defense, set off,
counterclaim, recoupment or reduction of liability whatsoever of the obligor thereunder, arising out of
a breach by Grantor of any obligation or arising out of any other agreement, indebtedness or liability
at any time owing to or in favor of such Holder of Secured Obligations from Grantor, and all such
obligations of Grantor shall be and shall remain enforceable against and only against Grantor and shall
not be enforceable against any of the Holders of Secured Obligations.
(c) When Grantor or any of its Subsidiaries (or any Affiliates, shareholders, directors,
officers, employees, agents or those Persons acting for or in concert with Grantor or a Subsidiary of
Grantor) shall receive or come into the possession or control of any monies, checks, notes, drafts or
any other payment relating to, or proceeds of, Grantor's Accounts or other property constituting
Collateral hereunder (individually, a "Payment Item", and, collectively, "Payment Items"), then, except
as otherwise permitted in a writing signed by the Agent, Grantor shall, or shall cause such Subsidiary
or such other Person to, deposit the same, in kind in precisely the form in which such Payment Item was
received (with all Payment Items endorsed if necessary for collection), into an account maintained by
the Grantor as permitted under the Credit Agreement.
SECTION 11. Leased Real Property. Grantor covenants and agrees with Agent that from and after the date
of this Agreement and until termination of this Agreement pursuant to Section 25, that:
(a) Promptly following, but not later than ninety (90) days after, the close of each
fiscal year Grantor will furnish to Agent a report certified to be true and correct by Grantor
containing a list of each of the Grantor's leased premises; the name or names of all owners; rentals
being paid; and whether Grantor has obtained waivers of Liens and access agreements from landlords and
mortgagees with respect to such premises in accordance with Section 6; and
(b) Grantor agrees that, from and after the occurrence of a Default, Agent may, but need
not, make any payment or perform any act hereinbefore required of Grantor with respect to the Grantor's
leased premises in any form and manner deemed expedient. All money paid for any of the purposes herein
authorized and all other moneys advanced by Agent to protect the lien hereof shall be additional
Liabilities secured hereby and shall become immediately due and payable without notice and shall bear
interest thereon at the default interest rate as provided in the Credit Agreement until paid to Agent in
full.
SECTION 12. General Covenants. Grantor covenants and agrees with Agent that from and after the date of
this Agreement and until termination of this Agreement pursuant to Section 25, Grantor shall:
(a) Keep and maintain at Grantor's own cost and expense satisfactory and complete records
of Grantor's Collateral in a manner consistent with Grantor's current business practice, including,
without limitation, a record of all payments received and all credits granted with respect to such
Collateral. Grantor shall, for Agent's further security, deliver and turn over to Agent or Agent's
designated representatives at any time following the occurrence and during the continuation of a
Default, any such books and records (including, without limitation, any and all computer tapes, programs
and source and object codes relating to such Collateral in which Grantor has an interest or any part or
parts thereof); and
(b) Grantor will not create, permit or suffer to exist, and will defend the Collateral
against, and take such other action as is necessary to remove, any Lien on such Collateral other than
Liens permitted under the Credit Agreement, and will defend the right, title and interest of Agent in
and to Grantor's rights to such Collateral, including, without limitation, the proceeds and products
thereof, against the claims and demands of all Persons whatsoever.
SECTION 13. Agent Appointed Attorney-in-Fact. Grantor hereby irrevocably appoints Agent as Grantor's
attorney-in-fact, with full authority in the place and stead of Grantor and in the name of Grantor or otherwise,
from time to time in Agent's discretion, to take any action and to execute any instrument which Agent may deem
necessary or advisable to accomplish the purposes of this Agreement, including, without limitation, (a) following
the occurrence and during the continuance of a Default, to:
(i) obtain and adjust insurance required to be paid to the Agent or any Holders of
Secured Obligations pursuant to the Credit Agreement;
(ii) ask, demand, collect, ▇▇▇ for, recover, compromise, receive and give
acquittance and receipts for moneys due and to become due under or in respect of any of the
Collateral;
(iii) receive, endorse, and collect any drafts or other instruments, documents and
chattel paper, in connection with clause (i) or (ii) above; and
(iv) file any claims or take any action or institute any proceedings which Agent
may deem necessary or desirable for the collection of any of the Collateral, or otherwise to
enforce the rights of Agent with respect to any of the Collateral;
and (b) at any time, to:
(i) obtain access to records maintained for Grantor by computer services companies
and other service companies or bureaus;
(ii) send requests under Grantor's, the Agent's or a fictitious name to Grantor's
customers or account debtors for verification of Accounts provided that the Agent gives the
Grantor notice prior to initiating any such verifications; and
(iii) do all other things reasonably necessary to carry out this Agreement.
SECTION 14. Agent May Perform. If Grantor fails to perform any agreement contained herein or in the
Credit Agreement, Agent may, upon three days prior notice to the Grantor, perform, or cause performance of, such
agreement, and the expenses of Agent incurred in connection therewith shall be payable by Grantor under Section
22.
SECTION 15. Agent's Duties. The powers conferred on Agent hereunder are solely to protect its interest
in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the safe custody
of any Collateral in its possession and the accounting for moneys actually received by it hereunder, Agent shall
not have any duty as to any Collateral. Agent shall be deemed to have exercised reasonable care in the custody
and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal
to that which Agent accords its own property, it being understood that Agent shall be under no obligation to take
any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral,
but may do so at its option, and all reasonable expenses incurred in connection therewith shall be for the sole
account of Grantor and shall be added to the Liabilities.
SECTION 16. Remedies. (a) If any Default shall have occurred and be continuing:
(i) Agent shall have, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured party upon default under
the UCC (whether or not the UCC applies to the affected Collateral) and further, Agent may,
without notice, demand or legal process of any kind (except as may be required by law), all of
which Grantor waives, at any time or times, (x) enter Grantor's owned or leased premises and
take physical possession of the Collateral and maintain such possession on Grantor's owned or
leased premises, at no cost to Agent or any of the Holders of Secured Obligations, or remove
the Collateral, or any part thereof, to such other place(s) as Agent may desire, (y) require
Grantor to, and Grantor hereby agrees that it will at its expense and upon request of Agent
forthwith, assemble all or any part of the Collateral as directed by Agent and make it
available to Agent at a place to be designated by Agent which is reasonably convenient to Agent
and (z) without notice except as specified below, sell, lease, assign, grant an option or
options to purchase or otherwise dispose of the Collateral or any part thereof at public or
private sale at any exchange, broker's board or at any of the offices of Agent or elsewhere,
for cash, on credit or for future delivery, and upon such other terms as Agent may deem
commercially reasonable. Grantor agrees that, to the extent notice of sale shall be required by
law, at least ten (10) days' notice to Grantor of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable notification. Agent
shall not be obligated to make any sale of Collateral regardless of notice of sale having been
given. Agent may adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned;
(ii) Agent shall apply all cash proceeds received by Agent in respect of any sale
of, collection from, or other realization upon all or any part of the Collateral (after payment
of any amounts payable to Agent pursuant to Section 22), for the benefit of the Holders of
Secured Obligations, against all or any part of the Liabilities in such order as may be
required by the Credit Agreement or, to the extent not specified therein, as is determined by
the Required Lenders. Any surplus of such cash or cash proceeds held by Agent and remaining
after payment in full of all the Liabilities shall be paid over to Grantor or to whomsoever may
be lawfully entitled to receive such surplus;
(b) Grantor waives all claims, damages and demands against Agent arising out of the
repossession, retention or sale of any of the Collateral or any part or parts thereof, except any such
claims, damages and awards arising out of the gross negligence or willful misconduct of Agent or any of
the Holders of Secured Obligations, as the case may be, as determined in a final non-appealed judgment
of a court of competent jurisdiction; and
(c) The rights and remedies provided under this Agreement are cumulative and may be
exercised singly or concurrently and are not exclusive of any rights and remedies provided by law or
equity.
SECTION 17. Exercise of Remedies. In connection with the exercise of its remedies pursuant to
Section 17, Agent may, (i) exchange, enforce, waive or release any portion of the Collateral and any other
security for the Liabilities; (ii) apply such Collateral or security and direct the order or manner of sale
thereof as Agent may, from time to time, determine; and (iii) settle, compromise, collect or otherwise liquidate
any such Collateral or security in any manner following the occurrence of a Default, without affecting or
impairing Agent's right to take any other further action with respect to any Collateral or security or any part
thereof.
SECTION 18. License. Agent is hereby granted a license or other right to use, following the occurrence
and during the continuance of a Default, without charge, (a) Grantor's labels, patents, copyrights, trade
secrets, trade names, trademarks, service marks, customer lists and advertising matter, or any property of a
similar nature, as it pertains to the Collateral, in completing production of, advertising for sale, and selling
any Collateral, provided that Agent uses quality standards at least substantially equivalent to those of Grantor
for the manufacture, advertising, sale and distribution of Grantor's products and services and (b) Grantor's
rights under all licenses and all franchise agreements shall inure to Agent's benefit.
SECTION 19. Injunctive Relief. Grantor recognizes that in the event Grantor falls to perform, observe
or discharge any of its obligations or liabilities under this Agreement, any remedy of law may prove to be
inadequate relief to the Holders of Secured Obligations; therefore, Grantor agrees that the Holders of Secured
Obligations, if Agent so determines and requests, shall be entitled to temporary and permanent injunctive relief
in any such case without the necessity of proving actual damages.
SECTION 20. Interpretation and Inconsistencies. The rights and duties created by this Agreement shall,
in all cases, be interpreted consistently with, and shall be in addition to (and not in lieu of), the rights and
duties created by the Credit Agreement and the other Loan Documents. In the event that any provision of this
Agreement shall be inconsistent with any provision of any other Loan Document, such provision of the other Loan
Document shall govern.
SECTION 21. Expenses. Grantor will upon demand pay to Agent and/or the Holders of Secured Obligations
the amount of any and all reasonable expenses, including the reasonable fees and disbursements of their counsel
and of any experts and agents, as provided in the applicable provisions of the Credit Agreement.
SECTION 22. Amendments, Etc. No amendment or waiver of any provision of this Agreement nor consent to
any departure by Grantor herefrom shall in any event be effective unless the same shall be in writing and signed
by Agent and Grantor, and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
SECTION 23. Notices. All notices and other communications provided for hereunder shall be delivered in
the manner set forth in the Guaranty.
SECTION 24. Continuing Security Interest, Termination.
(a) Except as provided in Section 25(b), this Agreement shall create a continuing security
interest in the Collateral and shall (i) remain in full force and effect until the later of the payment
or satisfaction in full of the Liabilities (other than contingent indemnity obligations) and the
termination of the Credit Agreement, (ii) be binding upon Grantor, its successors and assigns and
(iii) except to the extent that the rights of any transferor, or assignor are limited by the terms of the
Credit Agreement, inure, together with the rights and remedies of Agent hereunder, to the benefit of
Agent and any of the Holders of Secured Obligations. Nothing set forth herein or in any other Loan
Document is intended or shall be construed to give any other Person any right, remedy or claim under, to
or in respect of this Agreement or any other Loan Document or any Collateral. Grantor's successors and
assigns shall include, without limitation, a receiver, trustee or debtor-in-possession thereof or
therefor.
(b) Upon the payment in full in cash of the Liabilities (other than contingent indemnity
obligations) and the termination of the Credit Agreement, this Agreement and the security interest
granted hereby shall terminate and all rights to the Collateral shall revert to Grantor. Upon any such
termination of security interest, Grantor shall be entitled to the return, upon its request and at its
expense, of such of the Collateral held by Agent as shall not have been sold or otherwise applied
pursuant to the terms hereof and Agent will, at Grantor's expense, execute and deliver to Grantor such
other documents as Grantor shall reasonably request to evidence such termination. In connection with any
sales of assets permitted under the Credit Agreement, the Agent will release and terminate the liens and
security interests granted under this Agreement with respect to such assets.
SECTION 25. Severability. It is the parties' intention that this Agreement be interpreted in such a
way that it is valid and effective under applicable law. However, if one or more of the provisions of this
Agreement shall for any reason be found to be invalid or unenforceable, the remaining provisions of this
Agreement shall be unimpaired.
SECTION 26. Reserved.
SECTION 27. GOVERNING LAW. THE AGENT HEREBY ACCEPTS THIS AGREEMENT, ON BEHALF OF ITSELF AND THE
LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE BETWEEN THE GRANTOR AND THE
AGENT, ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, AND WHETHER ARISING IN
CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
SECTION 28. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF THE PARTIES
HERETO AGREES THAT ALL DISPUTES BETWEEN THEM ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN
CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED
IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO
BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. GRANTOR AGREES THAT THE AGENT, ANY LENDER OR ANY HOLDER OF
SECURED OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST GRANTOR OR ITS PROPERTY IN A COURT AT ANY
LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE GRANTOR OR (2) REALIZE ON
THE COLLATERAL OR ANY OTHER SECURITY FOR THE LIABILITIES OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF SUCH PERSON. GRANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN
ANY PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
LIABILITIES OR TO ENFORCE A JUDGMENT OR OTHER COURT OR-DER IN FAVOR OF SUCH PERSON. GRANTOR WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING
DESCRIBED IN THIS SUBSECTION.
(C) SERVICE OF PROCESS. GRANTOR WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT AND, AS
ADDITIONAL SECURITY FOR THE LIABILITIES, IRREVOCABLY APPOINTS THE PRENTICE HALL CORPORATION SYSTEM,
INC., GRANTOR'S REGISTERED AGENT, WHOSE ADDRESS IS ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, AS GRANTOR'S AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS ISSUED BY ANY COURT. GRANTOR
IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING
OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) WAIVER OF BOND. GRANTOR WAIVES THE POSTING OF ANY BOND OTHERWISE REQUIRED OF ANY PARTY
HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO REALIZE ON THE COLLATERAL OR ANY OTHER
SECURITY FOR THE LIABILITIES OR TO ENFORCE ANY JUDGEMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT
INJUNCTION, THIS AGREEMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY HERETO THAT IT HAS
DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF THIS SECTION 28, WITH ITS COUNSEL.
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Security Agreement
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duty executed and delivered by its
officer thereunto duly authorized as of the date first above written.
SCP SUPERIOR ACQUISITION COMPANY LLC
By:/S/
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION, as AGENT
By:/S/
Name:
Title: