Exhibit 10.2
SECURITY AGREEMENT
This SECURITY AGREEMENT (this
“ Agreement ”) is dated as of July 29,
2009, by and between CASCADE CORPORATION, an Oregon corporation
(“ Debtor ”), and BANK OF AMERICA, N.A., as
Agent for the Lenders (in such capacity, “ Agent
”). Capitalized terms used and not defined herein shall have
the meanings given to them in the Loan Agreement, as defined
below.
Recitals:
A. This Security Agreement is given
to secure all of Debtor’s obligations of payment and
performance then or thereafter arising under or in connection with
the Loan Agreement dated as of February 28, 2003, as amended
from time to time (the “ Loan Agreement
”).
B. Bank of America, N.A. (“
Bank of America ”) in its individual capacity and
other lenders party to the Loan Agreement, are providing credit
facilities to Debtor under the Loan Agreement. Bank of America in
its individual capacity and the other lenders party to the Loan
Agreement are collectively referred to herein as the “
Lenders ” or the “ Secured Creditors
.”
C. As a condition precedent to the
execution and delivery of the Sixth Amendment to Loan Agreement by
the Lenders, the Lenders require Debtor to secure Debtor’s
obligations to the Lenders and to the Agent under this Agreement by
granting the Agent a lien on and security interest in all of
Debtor’s personal property except as provided in the last
paragraph of Section 1 hereof.
NOW, THEREFORE, in consideration of
the foregoing Recitals and for other good and valuable
consideration, receipt of which is hereby acknowledged, and
intending to be bound hereby, Debtor agrees with Agent; for the
benefit of Agent and the Secured Creditors, as follows:
1. GRANT OF SECURITY INTEREST. For
valuable consideration, Debtor hereby grants and transfers to
Agent, for the benefit of Agent and the Secured Creditors, a
security interest in all of the now held and hereafter acquired
property of Debtor described as follows (collectively, the “
Collateral ”):
(a) all accounts, deposit accounts,
contract rights, chattel paper (whether electronic or tangible),
instruments, promissory notes, documents, general intangibles,
payment intangibles, software, letter-of-credit rights, health-care
insurance receivables and other rights to payment of every kind now
existing or at any time hereafter arising;
(b) all inventory, goods held for
sale or lease or to be furnished under contracts for service, or
goods so leased or furnished, raw materials, component parts, work
in process and other materials used or consumed in Debtor’s
business, now or at any time hereafter owned or acquired by Debtor,
wherever located, and all products thereof, whether in the
possession of Debtor, any warehousemen, any bailee or any other
person, or in process of delivery, and whether located at
Debtor’s places of business or elsewhere;
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(c) all warehouse receipts, bills of
sale, bills of lading and other documents of every kind (whether or
not negotiable) in which Debtor now has or at any time hereafter
acquires any interest, and all additions and accessions thereto,
whether in the possession or custody of Debtor, any bailee or any
other person for any purpose;
(d) all money and property
heretofore, now or hereafter delivered to or deposited with Agent
or any Lender or otherwise coming into the possession, custody or
control of Agent or any Lender (or any agent or bailee of Agent or
any Lender) in any manner or for any purpose whatsoever during the
existence of this Agreement and whether held in a general or
special account or deposit for safekeeping or otherwise;
(e) all investment property of
Debtor;
(f) all right, title and interest of
Debtor under licenses, guaranties, warranties, management
agreements, marketing or sales agreements, escrow contracts,
indemnity agreements, insurance policies, service or maintenance
agreements, supporting obligations and other similar contracts of
every kind in which Debtor now has or at any time hereafter shall
have an interest except those directly related to property excluded
from Collateral and described below;
(g) all goods, tools, machinery,
furnishings, furniture and other equipment of every kind now
existing or hereafter acquired, and improvements, replacements,
accessions and additions thereto and embedded software included
therein (collectively, the “ Equipment ”),
whether located on any property owned or leased by Debtor or
elsewhere, including without limitation, any of the foregoing now
or at any time hereafter located at or installed on the land or in
the improvements at any of the real property owned or leased by
Debtor, and all such goods after they have been severed and removed
from any of said real property;
(h) all motor vehicles, trailers,
mobile homes, manufactured homes, boats, other rolling stock and
related equipment of every kind now existing or hereafter acquired
and all additions and accessories thereto, whether located on any
property owned or leased by Debtor or elsewhere;
(i) to supplement the foregoing list
of Collateral, which did not specify that the terms used would be
defined or set forth in the Oregon Uniform Commercial Code, the
Debtor also grants and transfers to Agent for the benefit of Agent
and the Secured Creditors, a security interest in all of the now
held and hereafter acquired property of Debtor listed below, it
being agreed that such list is added to expand the meaning of
“Collateral” by adding the following types of property
defined as set forth in the Oregon Uniform Commercial Code, and
that any property described below which is not included in
(a) through (h) above is hereby added to Collateral. The
types of property listed below shall have the meaning given to them
in the Oregon Uniform Commercial Code. The list referred to in this
subsection is:
(i) all accounts
(ii) all chattel paper
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(iii) all deposit
accounts
(iv) all documents
(v) all equipment
(vi) all general
intangibles
(vii) all instruments
(viii) all inventory
(ix) all investment
property
(x) all letter of credit
rights;
together with
(j) whatever is receivable or
received when any of the foregoing or the proceeds thereof are
sold, leased, collected, exchanged or otherwise disposed of,
whether such disposition is voluntary or involuntary, including
without limitation, all rights to payment, including returned
premiums, with respect to any insurance relating to any of the
foregoing, and all rights to payment with respect to any claim or
cause of action affecting or relating to any of the foregoing
(collectively, “ Proceeds ”).
Notwithstanding anything to the
contrary in this Agreement, the Collateral shall not include any of
the following property of Debtor: (i) any property covered by
UCC financing statements listed on Exhibit A attached
hereto if the terms of the security agreements or leases applicable
to such property (including refinancings, renewals and replacements
of such security agreements or leases) prohibit the security
interest of the Agent in such property; or (ii) any proceeds
of the property described in clause (i) of this
paragraph.
2. OBLIGATIONS SECURED. The
obligations secured hereby (the “ Obligations ”)
consist of all obligations of any nature whatsoever of Borrower to
Agent and Lenders under the Loan Agreement, and any related Loan
Documents, including, but not limited to, any obligations of any
nature whatsoever arising under Swap Contracts.
3. TERMINATION. This Agreement will
terminate, the Agent’s security interests in the Collateral
described in this Security Agreement will terminate, and UCC
termination statements will be filed when the Obligations have been
fully satisfied, and all commitments under the Loan Agreement have
been terminated.
4. This Section is intentionally
left blank.
5. REPRESENTATIONS AND WARRANTIES.
Debtor represents and warrants to Agent, for the benefit of the
Secured Creditors, that: (a) Debtor’s legal name is
exactly as set forth on the first page of this Agreement, and all
of Debtor’s organizational documents or agreements delivered
to Agent are complete and accurate in every respect;
(b) Debtor is the
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owner and has possession or control of the
Collateral and Proceeds; (c) Debtor has the exclusive right to
grant a security interest in the Collateral and Proceeds;
(d) except for the liens and security interests created
hereby, or otherwise agreed to in writing by the Agent, Collateral
and Proceeds are: (i) genuine and free from valid liens or
encumbrances and (ii) with respect to accounts, to the best of
Debtor’s knowledge, except as disclosed in writing to the
Secured Creditors, such accounts are free of valid adverse claims,
set-offs, default, prepayment, defenses or other conditions
precedent except those that occur in the ordinary course of
Debtor’s business as Debtor’s business is currently
conducted; (e) all statements contained herein and, where
applicable, in other Loan Documents as to the Collateral are true
and complete in all material respects; (f) except as expressly
permitted by the Agent, there is no valid financing statement
covering any of the Collateral or Proceeds, and naming any Secured
Creditor other than Agent, on file in any public office;
(g) where Collateral consists of rights to payment, to the
best of Debtor’s knowledge, all persons appearing to be
obligated on the Collateral and Proceeds have authority and
capacity to contract and are bound as they appear to be, all
property subject to chattel paper (if any) has been properly
registered and filed in compliance with law and to perfect the
interest of Debtor in such property, and all such Collateral and
Proceeds comply with all applicable laws concerning form, content
and manner of preparation and execution, including where applicable
Federal Reserve Regulation Z and any applicable consumer
credit laws; and (h) where the Collateral consists of
Equipment, Debtor is not in the business of selling goods of the
kind included within such Collateral, and Debtor acknowledges that
no sale or other disposition of any such Collateral, including
without limitation, any Equipment that Debtor may deem to be
surplus, has been consented to or acquiesced in by Agent or
Lenders, unless consent or acquiescence is specifically set forth
in the Loan Documents.
6. COVENANTS OF DEBTOR.
(a) Debtor agrees: (i) to pay
the Obligations secured hereby when due; (ii) to indemnify and
hold harmless Agent and each Secured Creditor against all losses,
claims, demands, liabilities and expenses of every kind caused by
property subject hereto; (iii) to pay all costs and expenses,
including reasonable attorneys’ fees (whether incurred before
trial, at trial, or in any bankruptcy or arbitration proceeding),
incurred by Agent in the perfection and preservation of the
Collateral or Agent’s interest therein and/or the
realization, enforcement and exercise of Agent’s rights,
powers and remedies hereunder; (iv) to permit Agent to
exercise its powers hereunder; (v) to execute and deliver such
documents as Agent deems necessary to create, perfect and continue
the security interests contemplated hereby; (vi) not to change
its name, and as applicable, its chief executive office, its
principal residence or the jurisdiction in which it is organized
and/or registered without giving Agent and each Secured Creditor
prior written notice thereof; (vii) not to change the places
where Debtor keeps any Collateral or Debtor’s records
concerning the Collateral and Proceeds without giving Agent and
each Secured Creditor prior written notice of the address to which
Debtor is moving same; and (viii) to cooperate with Agent in
perfecting all security interests granted herein and in obtaining
such agreements from third parties as Agent deems necessary, proper
or convenient in connection with the preservation, perfection or
enforcement of any of its rights hereunder.
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(b) Debtor agrees with regard to the
Collateral and Proceeds (but not with respect to any property other
than Collateral and Proceeds), unless Lenders agree otherwise in
writing: (i) that Agent is authorized to file financing
statements in the name of Debtor to perfect Agent’s security
interest in Collateral and Proceeds; (ii) where applicable, to
insure the Collateral with Agent named as loss payee, in form,
substance and amounts, under agreements, against risks and
liabilities, and with insurance companies, in each case as required
by the Loan Documents or in a manner otherwise satisfactory to
Agent; (iii) where applicable, to operate the Collateral in
accordance with all applicable statutes, rules and regulations
relating to the use and control thereof, and not to use any
Collateral for any unlawful purpose or in any way that would void
any insurance required to be carried in connection therewith;
(iv) not to remove the Collateral from Debtor’s
premises, except (A) for deliveries to buyers in the ordinary
course of Debtor’s business and (B) Collateral which
consists of mobile goods as defined in the Oregon Uniform
Commercial Code, in which case Debtor agrees not to remove or
permit the removal of such Collateral from its state of domicile
for a period in excess of thirty (30) calendar days;
(v) to pay when due all license fees; registration fees and
other charges in connection with any Collateral; (vi) except
to the extent expressly permitted in writing by Agent, not to
permit any lien on the Collateral or Proceeds, including without
limitation, liens arising from repairs to or storage of the
Collateral, except in favor of Agent; (vii) not to sell,
hypothecate or dispose of, nor permit the transfer by operation of
law of, any of the Collateral or Proceed
