SECURITY AGREEMENT among ACCO BRANDS CORPORATION, CERTAIN OTHER SUBSIDIARIES OF ACCO BRANDS CORPORATION FROM TIME TO TIME PARTY HERETO and as COLLATERAL TRUSTEE Dated as of September 30, 2009
EXHIBIT
4.6
EXECUTION
VERSION
among
ACCO
BRANDS CORPORATION,
CERTAIN
OTHER SUBSIDIARIES OF ACCO BRANDS CORPORATION
FROM TIME
TO TIME PARTY HERETO
and
U.S. BANK
NATIONAL ASSOCIATION,
as
COLLATERAL TRUSTEE
________________________________
Dated as
of September 30, 2009
________________________________
SECURITY
AGREEMENT (as amended, modified, restated and/or supplemented from time to time,
this “Agreement”),
dated as of September 30, 2009, made by each of the undersigned assignors (each,
an “Assignor”
and, together with any other Person that becomes an assignor hereunder pursuant
to Section 10.12, the “Assignors”)
in favor of U.S. Bank National Association, as collateral trustee (together with
any successor collateral trustee, the “Collateral
Trustee”), for the benefit of the Secured Parties. Certain
capitalized terms as used herein are defined in Article IX. Except as
otherwise defined herein, all capitalized terms used herein and defined in the
Collateral Trust Agreement (as defined below) shall be used herein as therein
defined.
WHEREAS,
ACCO Brands Corporation (the “Issuer”),
the other Assignors and U.S. Bank National Association, as trustee (together
with any successor trustee, the “Indenture
Trustee”), have entered into an Indenture, dated as of September 30, 2009
(as amended, modified, restated and/or supplemented from time to time, the
“Indenture”),
relating to the Issuer’s 10.625% Senior Secured Notes due 2015 (the “Senior
Secured Notes”);
ARTICLE
I
SECURITY
INTERESTS
1.1 Grant
of Security Interests. (a) As
security for the prompt and complete payment and performance when due of all of
the Secured Debt Obligations, each Assignor does hereby assign and transfer unto
the Collateral Trustee, and does hereby pledge and grant to the Collateral
Trustee, for the benefit of the Secured Parties, a continuing security interest
in all of the right, title and interest of such Assignor in, to and under all of
the following personal property and fixtures (and all rights therein) of such
Assignor, or in which or to which such Assignor has any rights, in each case
whether now existing or hereafter from time to time
acquired:
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(i)
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each
and every Account;
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(ii)
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all
Money and Cash Equivalents;
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(iii)
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the
Collateral Proceeds Account and all monies, securities, Instruments and
other investments deposited or required to be deposited in the Collateral
Proceeds Account;
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(iv)
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all
Chattel Paper (including, without limitation, all Tangible Chattel Paper
and all Electronic Chattel Paper);
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(v)
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all
Commercial Tort Claims described on Schedule 5 of the Perfection
Certificate (together with any Commercial Tort Claims as to which the
Assignors have complied with the requirements of Section 3.11
hereof);
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(vi)
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Contracts,
together with all Contract Rights arising
thereunder;
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(vii)
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all
Equipment;
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(viii)
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all Deposit
Accounts, Securities Accounts and Commodity Accounts, and all other
demand, deposit, time, savings, cash management, passbook and similar
accounts maintained by such Assignor with any Person and all monies,
securities, Instruments and other investments deposited or required to be
deposited in any of the
foregoing;
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(ix)
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all
Farm Products;
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(x)
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all
Fixtures;
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(xi)
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all
Documents;
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(xii)
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all
General Intangibles;
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(xiii)
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all
Goods;
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(xiv)
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all
Instruments;
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(xv)
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all
Intellectual Property;
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(xvi)
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all
Inventory;
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(xvii)
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all
Investment Property;
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(xviii)
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all
Letter-of-Credit Rights, whether or not the respective letter of credit is
evidenced by a writing (together with all Accounts, Chattel Paper,
Instruments, Deposit Accounts, General Intangibles and other
obligations of any kind, whether or not arising out of or in connection
with the sale or lease of goods or the rendering of services and whether
or not earned by performance, the “Receivables”;
and all rights now or hereafter existing in and to all supporting
obligations and in and to all security agreements, mortgages, Liens,
leases, letters of credit and other contracts securing or otherwise
relating to the Receivables, being the “Related
Contracts”);
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(xix)
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all
Permits;
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(xx)
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all
Software and computer programs and all Software and computer program
licensing rights;
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(xxi)
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all
Supporting Obligations;
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(xxii)
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all
books and records (including, without limitation, customer lists, credit
files, printouts and other computer output materials and records) of such
Assignor pertaining to any of the
Collateral;
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(xxiii)
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all
other tangible and intangible personal property;
and
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(xxiv)
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all
Proceeds and products of any and all of the foregoing (all of the above,
the “Collateral”),
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provided
that, notwithstanding anything to the contrary in this Agreement, this Agreement
shall not constitute a grant of a security interest in, and “Collateral” shall
not include, any Excluded Asset.
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(b) The
security interest of the Collateral Trustee under this Agreement extends to all
Collateral which any Assignor may acquire, or with respect to which any Assignor
may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding
anything to the contrary contained in this Section 1.1 or elsewhere in this
Agreement, each Assignor and the Collateral Trustee (on behalf of the Secured
Parties) acknowledges and agrees that:
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(i) the
security interest granted pursuant to this Agreement (including pursuant to this
Section 1.1) to the Collateral Trustee for the benefit of the Secured Parties is
subject to the lien priorities set forth in the Intercreditor Agreement,
including, without limitation, Section 2.01 thereof; and
(ii) the
security interests of the ABL Collateral Agent on behalf of the holders of ABL
Debt Obligations in the Collateral constitute security interests separate and
apart (and of a different class and claim) from the security interests of the
Collateral Trustee on behalf of the Secured Parties in the
Collateral.
1.2 Power
of Attorney. Each
Assignor hereby constitutes and appoints the Collateral Trustee and any officer
or agent thereof (such appointment being coupled with an interest) its true and
lawful attorney, irrevocably, with full power (in the name of such Assignor or
otherwise) to, in each case subject to the Intercreditor
Agreement:
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(i)
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obtain
and adjust insurance required to be maintained by such Assignor or paid to
the Collateral Trustee pursuant to Section 6.1 hereof or otherwise deemed
necessary by the Collateral Trustee to preserve the value of the
Collateral;
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(ii)
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upon
the occurrence and during the continuance of any Event of Default, to ask
for, collect, xxx for, recover, act, require, demand, receive, compound
and give acquittance for any and all moneys and claims for moneys due or
to become due to such Assignor under or arising out of the
Collateral;
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(iii)
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upon
the occurrence and during the continuance of any Event of Default, to
receive, endorse and collect any checks, drafts or other instruments or
orders, documents and chattel paper in connection with clause (ii)
above;
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(iv)
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upon the occurrence
and during the continuance of any Event of Default, to (A) file any claims
or take any action or institute any proceedings which the
Collateral Trustee may deem to be necessary or advisable for the
collection
of any of the Collateral or otherwise to protect the interests of the
Secured Parties with respect to any of the Collateral and (B) defend any
suit, action or proceeding brought against such Assignor with respect to
any Collateral and settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, give such discharges or releases
as the Collateral Trustee may deem
appropriate;
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(v)
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upon
the occurrence and during the continuance of any Event of Default, to
direct any party liable for any payment under any Collateral to make
payment of any moneys due or to become due thereunder directly to the
Collateral Trustee or as the Collateral Trustee may
direct;
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(vi)
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upon
the occurrence and during the continuance of any Event of Default, to
execute, in connection with and sale provided for in Section 7.2, any
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endorsement,
assignment or other instrument of conveyance or transfer with respect to
the Collateral;
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(vii)
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upon
the occurrence and during the continuance of any Event of Default, to
assign any Intellectual Property throughout the world for such term or
terms, on such conditions, and in such manner as the Collateral Trustee
shall in its sole discretion determine, including the execution and filing
of any document necessary to effectuate or record such
assignment;
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(viii)
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to
prepare and file any UCC financing statements relating to the Collateral
against such Assignor (a copy of which shall be delivered to such
Assignor)
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(ix)
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to
prepare, sign and file for recordation in any Intellectual Property
registry, appropriate evidence of the lien and security interest granted
herein in the Intellectual Property and the goodwill and General
Intangibles of such Assignor relating thereto or represented thereby in
the name of such Assignor as debtor (a copy of which shall be delivered to
such Assignor);
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(x)
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to
pay or discharge taxes and Liens (other than Permitted Liens) levied or
placed on or threatened against the Collateral, the legality or validity
thereof and the amounts necessary to discharge the same to be determined
by the Collateral Trustee (or as instructed by an Act of Required
Debtholders); and
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(xi)
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upon the occurrence
and during the continuance of any Event of Default, generally to sell,
transfer, pledge, make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though the
Collateral Trustee were the absolute owner thereof for all purposes, and
to do, at the Collateral Trustee’s option and such Assignor’s expense, at
any time and from time to time, all acts and things that the Collateral
Trustee deems reasonably necessary to protect, preserve or realize upon
the
Collateral and the Collateral Trustee’s security interest therein in order
to effect the intent of this Agreement, all as fully and effectively as
such Assignor might
do.
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Each
Assignor hereby ratifies all that said attorneys shall lawfully do or cause to
be done by virtue hereof.
ARTICLE
II
Each
Assignor represents, warrants and covenants, which representations, warranties
and covenants shall survive execution and delivery of this Agreement, as
follows:
2.1 Necessary
Filings. All
filings, registrations, recordings and other actions necessary or
appropriate to create, preserve and perfect the security interest granted
by such
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Assignor
to the Collateral Trustee hereby in respect of the Collateral have been, or will
within two Business Days of the Issue Date (or such later date as provided in
the Indenture or other Secured Debt Documents) be, accomplished and the security
interest granted to the Collateral Trustee pursuant to this Agreement in and to
the Collateral creates a valid and, together with all such filings,
registrations, recordings and other actions, a perfected security interest
therein and such security interest is, in the case of the Notes Collateral,
first priority, and in the case of the ABL Collateral, second priority, prior to
the rights of all other Persons therein and subject to no other Liens (other
than Permitted Liens) and is entitled to all the rights, priorities and benefits
afforded by the UCC or other relevant law as enacted in any relevant
jurisdiction to perfected security interests, in each case to the
extent that the Collateral consists of the type of property in which a
security interest may be perfected by possession or control (within the meaning
of the UCC as in effect on the date hereof in the State of New York), (i) by
filing a financing statement under the UCC as enacted in any relevant
jurisdiction or, (ii) in addition to the filing of such financing statements, by
a filing of an Intellectual Property Security Agreement in the respective form
attached hereto in the United States Patent and Trademark Office or in the
United States Copyright Office or any foreign equivalent office reasonably
requested by the Collateral Trustee (such filings of Intellectual Property
Security Agreements under this clause (ii), the “IP
Filings”); provided
that with respect to such IP Filings, the requirements in the foregoing sentence
shall apply (a) as of the Issue Date, with respect to all United States
registrations and applications for material Intellectual Property and all other
United States Intellectual Property for which all IP Recordals (as defined
below) are complete, including the Intellectual Property set forth in Schedule
2.1(a), (b) as of 30 days after the Issue Date, with respect to all other United
States registrations and applications for Intellectual Property, including the
Intellectual Property set forth in Schedule 2.1(b), and (c) as of 90 days after
the Issue Date, with respect to all material Intellectual Property that is
subject to a registration or application in foreign jurisdictions, including the
Intellectual Property set forth in Schedule 2.1(c). For purposes of
clarification and without limitation to the foregoing, prior to each applicable
date set forth in clause (ii) of the preceding sentence, each Assignor shall, at
such Assignor’s expense, effect the necessary corrective change of ownership and
recordals with all patent, trademark and copyright offices, domain name
registrars and other similar authorities (i) where Intellectual Property of any
Assignor
is still recorded in the name of legal predecessors of such Assignor or any
party other than such Assignor or (ii) where the relevant recordals of the
patent, copyright and trademark offices, domain name registrars and other
similar authorities are incorrect for any other reason with respect to such
Intellectual Property of any Assignor (such corrective change of ownership and
recordals in clauses (i) and (ii), the “IP
Recordals”). No authorization, approval or other action by,
and no notice to or filing with, any Governmental Authority or regulatory body
is required for either (i) the pledge or grant by any Assignor of the security
interests purported to be created in favor of the Collateral Trustee hereunder
or (ii) the exercise by the Collateral Trustee of any rights or remedies in
respect of any Collateral (whether specifically granted or created hereunder or
created or provided for by applicable law), except (A) for the filings
contemplated pursuant to this Section 2.1 and (B) as may be required, in
connection with the disposition of any Investment Property, by laws generally
affecting the offering and sale of securities and as may be required under
federal laws pertaining to Intellectual Property.
2.2 No
Liens. Such
Assignor is, and as to all Collateral acquired by it from time to time after the
date hereof such Assignor will be, the owner of all Collateral free from any
Lien or other right, title or interest of any Person (other than Permitted
Liens), and, subject to the
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Intercreditor Agreement, such Assignor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same or any interest therein adverse to the Collateral Trustee.
2.3 Other
Financing Statements. As
of the date hereof, there is no financing statement (or similar
statement or instrument of registration under the law of any jurisdiction)
covering or purporting to cover any interest of any kind in the Collateral
(other than financing statements filed in respect of Permitted Liens), and
so long as the Discharge of Priority Lien Obligations has not occurred or any
other Secured Debt Obligations remain outstanding, such Assignor will not
execute or authorize to be filed in any public office any financing
statement (or similar statement or instrument of registration under
the law of any jurisdiction) or statements relating to the Collateral,
except financing statements filed or to be filed in respect of and covering
the security interests granted hereby by such Assignor or in connection with
Permitted Liens.
2.4 Chief
Executive Office, Record Locations. The
chief executive office of such Assignor is, on the date of this Agreement,
located at the address indicated in paragraph 1 of the Perfection Certificate
for such Assignor. During the period of the four calendar months
preceding the date of this Agreement, the chief executive office of such
Assignor has not been located at any address other than that indicated in
paragraph 1 of the Perfection Certificate in accordance with the immediately
preceding sentence, in each case unless each such other address is also
indicated in paragraph 1 of the Perfection Certificate for such
Assignor.
2.5 Location
of Inventory and Equipment. All
Inventory and Equipment held on the date hereof, or held at any time during the
four calendar months prior to the date hereof, by each Assignor is located at
one of the locations shown in paragraph 1 of the Perfection Certificate for such
Assignor. Each Assignor shall keep all Equipment and Inventory in the
locations specified in paragraph 1 of the Perfection Certificate; provided
that Equipment and Inventory may be moved to another location in the United
States as long as such location is in the United States and listed in paragraph
1 of the Perfection Certificate or such Assignor shall have provided the
Collateral Trustee with prior written notice of such new
location.
2.6 Legal
Names; Type of Organization (and Whether a Registered Organization and/or a
Transmitting Utility); Jurisdiction of Organization; Location; Organizational
Identification Numbers; Federal Employer Identification Number; Changes Thereto;
etc. The
exact legal name of each Assignor, the type of organization of such Assignor,
whether or not such Assignor is a Registered Organization, the jurisdiction of
organization of such Assignor, such Assignor’s Location, the organizational
identification number (if any) of such Assignor, the Federal Employer
Identification Number (if any), and whether or not such Assignor is a
Transmitting Utility, is listed in paragraph 2 of the Perfection Certificate for
such Assignor. Such Assignor shall not change its legal name, its
type of organization, its status as a Registered Organization (in the case of a
Registered Organization), its status as a Transmitting Utility or as a Person
which is not a Transmitting Utility, as the case may be, its jurisdiction of
organization, its Location, its organizational identification number (if any),
or its Federal Employer Identification Number (if any) from that listed in
paragraph 2 of the Perfection Certificate, except that any such changes shall be
permitted (so long as not in violation of the applicable requirements of the
Secured Debt Documents and so long as same do not involve (x) a
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Registered Organization ceasing to constitute same or (y) such Assignor changing its jurisdiction of organization or Location from the United States or a State thereof to a jurisdiction of organization or Location, as the case may be, outside the United States or a State thereof) if (i) it shall have given to the Collateral Trustee not less than 15 days’ prior written notice of each change to the information listed in paragraph 2 of the Perfection Certificate (as adjusted for any subsequent changes thereto previously made in accordance with this sentence), and (ii) in connection with the respective such change or changes, it shall have taken all action reasonably requested by the Collateral Trustee (or as directed by an Act of Required Debtholders) to maintain the security interests of the Collateral Trustee in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect. In addition, to the extent that such Assignor does not have an organizational identification number on the date hereof and later obtains one, such Assignor shall promptly thereafter notify the Collateral Trustee of such organizational identification number and shall take all actions reasonably satisfactory to the Collateral Trustee to the extent necessary to maintain the security interest of the Collateral Trustee in the Collateral intended to be granted hereby fully perfected and in full force and effect.
2.7 Trade
Names; Etc. Such
Assignor has or operates in any jurisdiction under, or in the preceding five
years has had or has operated in any jurisdiction under, no trade names,
fictitious names or other names except its legal name as specified in paragraph
2(a) of the Perfection Certificate and such other trade or fictitious names as
are listed in paragraph 3 of the Perfection Certificate for such
Assignor. Such Assignor has not changed its legal name as specified
in paragraph 2(a) of the Perfection Certificate since August 17,
2005. Such Assignor shall not assume or operate in any jurisdiction
under any new trade, fictitious or other name until (i) it shall have given to
the Collateral Trustee not less than 15 days’ written notice of its intention so
to do, clearly describing such new name and the jurisdictions in which such new
name will be used and providing such other information in connection therewith
as the Collateral Trustee may reasonably request and (ii) with respect to such
new name, it shall have taken all action reasonably requested by the Collateral
Trustee (or as directed by an Act of Required Debtholders) to maintain the
security interest of the Collateral Trustee in the Collateral intended to be
granted hereby at all times fully perfected and in full force and
effect.
2.8 Certain
Significant Transactions. Since
August 17, 2005, no Person shall have merged or consolidated with or into any
Assignor, and no Person shall have liquidated into, or transferred all or
substantially all of its assets to, any Assignor, in each case except as
described in paragraph 4 of the Perfection Certificate. With respect
to any transactions so described in paragraph 4 of the Perfection Certificate,
the respective Assignor shall have furnished such information with respect to
the Person (and the assets of the Person and locations thereof) which merged
with or into or consolidated with such Assignor, or was liquidated into or
transferred all or substantially all of its assets to such Assignor, and shall
have furnished to the Collateral Trustee such UCC lien searches as reasonably
requested or as set forth in an Act of Required Debtholders with respect to such
Person and its assets, to establish that no security interest (excluding
Permitted Liens) continues perfected on the date hereof with respect to any
Person described above (or the assets transferred to the respective Assignor by
such Person), including without limitation pursuant to Section 9-316(a)(3) of
the UCC.
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2.9 Non-UCC
Property. The
aggregate fair market value (as determined by the Assignors in good faith) of
all property of the Assignors of the types described in clauses (1), (2) and (3)
of Section 9-311(a) of the UCC (but excluding any Intellectual Property) does
not exceed $1,000,000. If the aggregate value of all such property at
any time owned by all Assignors exceeds $1,000,000, the Assignors shall provide
prompt written notice thereof to the Collateral Trustee and, upon the request of
the Collateral Trustee, the Assignors shall promptly (and in any event within 30
days) take such actions (at their own cost and expense) as may be required under
the respective United States, State or other laws referenced in Section 9-311(a)
of the UCC to perfect the security interests granted herein in any Collateral
where the filing of a financing statement does not perfect the security interest
in such property in accordance with the provisions of Section 9-311(a) of the
UCC; provided,
however,
that notwithstanding anything in this Section 2.9, the Assignors shall take such
actions necessary to perfect the security interests granted herein in (x)
Marks
consistent with Article IV of this Agreement and (y) Copyrights and Patents
consistent with Article V of this Agreement.
2.10 As-Extracted
Collateral; Timber-to-be-Cut. On
the date hereof, such Assignor does not own, or expect to acquire, any property
which constitutes, or would constitute, As-Extracted Collateral or
Timber-to-be-Cut. If at any time after the date of this Agreement
such Assignor owns, acquires or obtains rights to any As-Extracted Collateral or
Timber-to-be-Cut, such Assignor shall furnish the Collateral Trustee with prompt
written notice thereof (which notice shall describe in reasonable detail the
As-Extracted Collateral and/or Timber-to-be-Cut and the locations thereof) and
shall take all actions as may be deemed reasonably necessary or desirable by the
Collateral Trustee to perfect the security interest of the Collateral Trustee
therein.
2.11 Collateral
in the Possession of a Warehouseman,
Bailee or Agent. If
any Inventory or other Goods are at any time in the possession of a
warehouseman, bailee or agent, or is located at leased premises or mortgaged
property such Assignor shall promptly notify the Collateral Trustee thereof and
shall (i) notify any such warehouseman, bailee, agent or landlord of the
security interest created hereunder, (ii) instruct any such warehouseman, bailee
or agent to hold all such Collateral solely for the Collateral Trustee’s account
subject only to the Collateral Trustee’s instructions (or the ABL Collateral
Agent’s account subject only to the ABL Collateral Agent’s instructions with
respect to ABL Collateral), and (iii) if requested by the Collateral Trustee,
use its commercially reasonable efforts to (A) cause such warehouseman, bailee
or agent to authenticate a record acknowledging that it holds possession of such
Collateral for the Collateral Trustee’s benefit and shall act solely on the
instructions of the Collateral Trustee (or for the ABL Collateral Agent’s
benefit and shall act solely on the instructions of the ABL Collateral Agent
with respect to ABL Collateral) without the further consent of the Assignor or
any other Person and make such authenticated record available to the Collateral
Trustee, and (B) obtain a landlord waiver and/or bailee agreement, in each case
in form and substance reasonably satisfactory to the Collateral Trustee, from
such warehouseman, bailee or agent or the applicable landlord or mortgagee. The
Collateral Trustee agrees with such Assignor that the Collateral Trustee shall
not give any such instructions unless an Event of Default has occurred and is
continuing or would occur after taking into account any action by the respective
Assignor with respect to any such bailee.
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2.12 Inventory
and Equipment. The
Inventory that has been produced or distributed by such Assignor has been
produced in compliance with all requirements of applicable law in all material
respects, including, without limitation, the Fair Labor Standards Act of
1938. No Assignor shall knowingly produce, use or permit any
Collateral to be used unlawfully or in violation of any provision of this
Agreement or any applicable statute, regulation or ordinance or any policy of
insurance covering the Collateral. Each Assignor will cause its
Equipment to be maintained and preserved in the same condition, repair and
working order as when new, ordinary wear and tear excepted together with insured
losses, and will forthwith, or in the case of any loss or damage to any of such
Equipment as soon as practicable after the occurrence thereof, make or cause to
be made all
repairs, replacements and other improvements in connection therewith that are
necessary or desirable to such end. Each Assignor will promptly
furnish to the Collateral Trustee a statement respecting any loss or damage
exceeding $250,000 to any of its Equipment or Inventory.
2.13 Perfection
Certificate. The
Perfection Certificate has been duly prepared, completed and executed by the
Assignors and the information set forth therein, including the exact legal name
of each Assignor, its jurisdiction of organization and its organizational number
(if any), is true, accurate and complete as of the Effective Date and as of each
delivery of a Perfection Certificate Supplement required pursuant to Section 6.3
or any other section of this Agreement.
2.14 Recourse. This
Agreement is made with full recourse to each Assignor and pursuant to and upon
all the warranties, representations, covenants and agreements on the part of
such Assignor contained herein, in the Secured Debt Documents and otherwise in
writing in connection herewith or therewith.
ARTICLE
III
SPECIAL
PROVISIONS CONCERNING ACCOUNTS; CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER AND
CERTAIN OTHER COLLATERAL
3.1 Additional
Representations and Warranties. As
of the time when each of its Accounts arises, each Assignor shall be deemed to
have represented and warranted that each such Account, and all records, papers
and documents relating thereto (if any) are genuine and what they purport to be,
and that all papers and documents (if any) relating thereto (i) will, to the
knowledge of such Assignor, represent the genuine, legal, valid and binding
obligation of the account debtor evidencing indebtedness unpaid and
owed by the respective account debtor arising out of the performance of labor or
services or the sale or lease and delivery of the merchandise listed therein, or
both, (ii) will be the only papers and documents evidencing and embodying such
obligation of the account debtor named therein (other than copies created for
general accounting purposes), (iii) will, to the knowledge of such Assignor,
evidence true and valid obligations, enforceable in accordance with their
respective terms, and (iv) will be in compliance and will conform in all
material respects with all applicable federal, state and local laws and
applicable laws of any relevant foreign jurisdiction.
3.2 Maintenance
of Records. Each
Assignor will keep and maintain at its own cost and expense accurate records of
its Accounts and Contracts, including, but not limited to,
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originals
of all documentation (including each Contract) with respect thereto, records of
all payments received, all credits granted thereon, all merchandise
returned and all other dealings therewith, and such Assignor will make the
same available on such Assignor’s premises to the Collateral Trustee
for inspection, at such Assignor’s own cost and expense, at any and all
reasonable times upon prior notice to such Assignor and otherwise in
accordance with the Indenture and the Collateral Trust
Agreement. Upon the occurrence and during the continuance of an Event
of Default and at the request of the Collateral Trustee, such Assignor shall,
promptly, at its own cost and expense, deliver all tangible evidence of its
Accounts and Contract Rights (including, without limitation, all documents
evidencing the Accounts and all Contracts) and such books and records to the
Collateral Trustee or to its representatives (copies of which evidence and books
and records may be retained by such Assignor). Upon the occurrence
and during the continuance of an Event of Default and if the Collateral Trustee
so directs, such Assignor shall legend, in form and manner satisfactory to the
Collateral Trustee, the Accounts and the Contracts, as well as books, records
and documents (if any) of such Assignor evidencing or pertaining to such
Accounts and Contracts with an appropriate reference to the fact that such
Accounts and Contracts have been assigned to the Collateral Trustee and that the
Collateral Trustee has a security interest therein.
3.3 Direction
to Account Debtors; Contracting Parties; etc. Subject
to the Intercreditor Agreement, upon notice to the Issuer of the occurrence and
during the continuance of an Event of Default, if the Collateral Trustee so
directs any Assignor, such Assignor agrees (x) to cause all payments on account
of the Accounts, Receivables, Related Contracts and Contracts to be made
directly to the Collateral Proceeds Account, (y) that the Collateral Trustee
may, at its option, directly notify the obligors with respect to any Accounts,
Receivables, Related Contracts and/or under any Contracts to make payments with
respect thereto as provided in the preceding clause (x), and (z) that the
Collateral Trustee may enforce collection of any such Accounts, Receivables,
Related Contracts and Contracts and may adjust, settle or compromise the amount
of payment thereof, in the same manner and to otherwise exercise all rights with
respect to such Accounts, Receivables, Assigned Agreements and Related
Contracts, including, without limitation, those set forth set forth in Section
9-607 of the UCC. Subject to the Intercreditor Agreement, upon the
occurrence and during the continuation of an Event of Default and upon demand of
the Collateral Trustee, all amounts and proceeds (including, without limitation,
Instruments) received by such Assignor in respect of the Accounts, Receivables,
Related Contracts and Contracts of such Assignor shall be received in trust for
the benefit of the Collateral Trustee hereunder, shall be segregated from other
funds of such Assignor and shall be transferred to the Collateral Proceeds
Account for application to the Secured Debt Obligations as provided in Section
3.4 of the Collateral Trust Agreement. The reasonable costs and
expenses of collection (including reasonable attorneys’ fees), whether
incurred by an Assignor or the Collateral Trustee, shall be borne by the
relevant Assignor. The Collateral Trustee shall deliver a copy of
each notice referred to in the preceding clause (y) to the relevant Assignor,
provided
that (x) the failure by the Collateral Trustee to so notify such Assignor shall
not affect the effectiveness of such notice or the other rights of the
Collateral Trustee created by this Section 3.3 and (y) no such notice shall be
required if an Event of Default of the type described in Section 6.01(g) or
Section 6.01(h) of the Indenture has occurred and is
continuing.
3.4 Modification
of Terms; etc. Except
in accordance with such Assignor’s ordinary course of business and consistent
with reasonable business judgment or as permitted by
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Section 3.5, no Assignor shall rescind or cancel any indebtedness evidenced by any Account or under any Contract, or modify any material term thereof or make any material adjustment with respect thereto, or extend or renew the same, or compromise or settle any material dispute, claim, suit or legal proceeding relating thereto, or sell any Account or Contract, or interest therein, without the prior written consent of the Collateral Trustee (or as directed by an Act of Required Debtholders). Other than as provided in this Section 3.4, no Assignor will do anything to materially impair the rights of the Collateral Trustee in the Accounts or Contracts.
3.5 Collection. Each
Assignor shall endeavor in accordance with reasonable business practices to
cause to be collected from the account debtor named in each of its Accounts and
Receivables or obligor under any Contract or Related Contract, as and when due
(including, without limitation, amounts which are delinquent, such amounts to be
collected in accordance with generally accepted lawful collection procedures)
any and all amounts owing under or on account of such Account, Receivable,
Contract or Related Contract, and apply forthwith upon receipt thereof all
such amounts as are so collected to the outstanding balance of such Account or
Receivable or under such Contract or Related Contract. Except as
otherwise directed by the Collateral Trustee after the occurrence and during the
continuation of an Event of Default, any Assignor may allow in the ordinary
course of business as adjustments to amounts owing under its Accounts,
Receivables, Contracts and Related Contracts (i) an extension or renewal of
the time or times of payment, or settlement for less than the total unpaid
balance, which such Assignor finds appropriate in accordance with
reasonable business judgment and (ii) a refund or credit due as a
result of returned or damaged merchandise or improperly performed services
or for other reasons which such Assignor finds appropriate in accordance with
reasonable business judgment. Except in the ordinary course of
business and consistent with past practice, no Assignor will permit or consent
to the subordination of its right to payment under any of the Accounts,
Receivables, Contracts or Related Contracts to any other indebtedness or
obligations of the Account Debtor or obligor thereof. The reasonable
costs and expenses (including, without limitation, reasonable attorneys’ fees)
of collection, whether incurred by an Assignor or the Collateral Trustee, shall
be borne by the relevant Assignor.
3.6 Instruments. If
any Assignor owns or acquires any Instrument in excess of $1,000,000
constituting Collateral (other than (x) checks and other payment instruments
received and collected in the ordinary course of business and (y) any Instrument
subject to pledge pursuant to the Pledge Agreement), such Assignor will within
10 Business Days notify the Collateral Trustee thereof, and upon request by the
Collateral Trustee will promptly deliver such Instrument to the Collateral
Trustee appropriately endorsed to the order of the Collateral Trustee (unless
the ABL Collateral Agent is granted a prior security interest in such Instrument
and the same is required to be delivered (and are delivered) to the ABL
Collateral Agent for the benefit of the holders of ABL Debt Obligations pursuant
to the Intercreditor Agreement).
3.7 Assignors
Remain Liable Under Accounts. Anything
herein to the contrary notwithstanding, the Assignors shall remain liable under
each of the Accounts and Receivables to observe and perform all of the
conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise to such Accounts or
Receivables, as applicable. Neither the Collateral Trustee nor any
other Secured Party shall have any obligation or liability under any Account (or
any agreement giving rise thereto) by reason of or arising out of this Agreement
or the receipt by the Collateral Trustee or any other Secured
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Party of any payment relating to such Account or Receivable pursuant hereto, nor shall the Collateral Trustee or any other Secured Party be obligated in any manner to perform any of the obligations of any Assignor under or pursuant to any Account or Receivable (or, in each case, any agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by them or as to the sufficiency of any performance by any party under any Account or Receivable (or, in each case, any agreement giving rise thereto), to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to them or to which they may be entitled at any time or times.
3.8 Assignors
Remain Liable Under Contracts. Anything
herein to the contrary notwithstanding, the Assignors shall remain liable under
each of the Contracts or Related Contracts to observe and perform all of
the conditions and obligations to be observed and performed by them thereunder,
all in accordance with and pursuant to the terms and provisions of each Contract
or Related Contract, as applicable. Neither the Collateral Trustee
nor any other Secured Party shall have any obligation or liability under any
Contract or Related Contract by reason of or arising out of this Agreement or
the receipt by the Collateral Trustee or any other Secured Party of any payment
relating to such Contract or Related Contract, as the case may be, pursuant
hereto, nor shall the Collateral Trustee or any other Secured Party be obligated
in any manner to perform any of the obligations of any Assignor under or
pursuant to any Contract or Related Contract, as the case may be, to make any
payment, to make any inquiry as to the nature or the sufficiency of any
performance by any party under any Contract or Related Contract, as the case may
be, to present or file any claim, to take any action to enforce any performance
or to collect the payment of any amounts which may have been assigned to them or
to which they may be entitled at any time or times.
3.9 Deposit
Accounts; Etc. (a)
Each Assignor hereby represents and warrants that, as of the date hereof, it
does not maintain any Deposit Accounts, Securities Accounts or Commodity
Accounts other than the Deposit Accounts, Securities Accounts and Commodity
Accounts listed on Schedule 15 to the Perfection Certificate. Each of
the Assignors will, within 60 days of the Issue Date (or, except for the
Collateral Proceeds Account, such later date as determined by the ABL Collateral
Agent in its sole discretion), deliver to the Collateral Trustee fully executed
control agreements in form and substance reasonably satisfactory to the
Collateral Trustee (or as directed by an Act of Required Debtholders) with
respect to each of the Deposit Accounts, Securities Accounts and Commodity
Accounts, other than Excluded Accounts, owned or maintained by such
Assignor. From and after 60 days following the Issue date, no
Assignor shall hereafter establish and maintain
any Deposit Account, Securities Account or Commodity Account, other than an
Excluded Account, unless (1) the applicable Assignor shall have given the
Collateral Trustee prior written notice of its intention to establish such new
Deposit Account, Securities Account or Commodity Account and (2) such Assignor
shall have delivered to the Collateral Trustee a fully executed control
agreement with respect to such Deposit Account, Securities Account or Commodity
Account. No Assignor shall grant control of any Deposit Account,
Securities Account or Commodity Account to any Person other than the Collateral
Trustee and, subject to the terms of the Intercreditor Agreement, the ABL
Collateral Agent.
(b) Subject
to the Intercreditor Agreement, the Collateral Trustee may, at any time and upon
notice to, but without consent from, any applicable Assignor, take control of,
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transfer,
or direct the transfer of, funds from any Deposit Account, Securities Account or
Commodity Account, other than an Excluded Account, owned or maintained by such
Assignor to satisfy such Assignor’s obligations under the Secured Debt Documents
if an Event of Default shall have occurred and be continuing.
(c) All
amounts received in respect of any Account of an Account Debtor of any Assignor,
in addition to all other cash received by any Assignor from any other source,
shall upon receipt be promptly deposited into a Deposit Account, Securities
Account or Commodity Account that is not, in each case, an Excluded
Account.
3.10 Letter-of-Credit
Rights. If
any Assignor is at any time a beneficiary under a letter of credit with a stated
amount of $1,000,000 or more, such Assignor shall promptly notify the Collateral
Trustee thereof and, at the request of the Collateral Trustee, such Assignor
shall, pursuant to an agreement in form and substance reasonably satisfactory to
the Collateral Trustee (or as directed by an Act of Required Debtholders), use
its reasonable best efforts to (i) arrange for the issuer and any confirmer of
such letter of credit to consent to an assignment to the Collateral Trustee of
the proceeds of any drawing under such letter of credit or (ii) arrange for
the Collateral Trustee to become the transferee beneficiary of such letter of
credit (unless the ABL Collateral Agent is granted a prior security interest in
such letter of credit and the issuer or confirmer of such letter of credit is
required to consent to an assignment to the ABL Collateral Agent or the ABL
Collateral Agent is required to become the transferee beneficiary of such letter
of credit pursuant to the Intercreditor Agreement), with the Collateral Trustee
agreeing, in each case, that the proceeds of any drawing under the letter of
credit are to be applied as provided in this Agreement after the occurrence and
during the continuance of an Event of Default.
3.11 Commercial
Tort Claims. All
Commercial Tort Claims of each Assignor in existence on the date of this
Agreement are described in paragraph 5 of the Perfection
Certificate. If any Assignor shall at any time after the date of this
Agreement acquire a Commercial Tort Claim in an amount (taking the greater of
the aggregate claimed damages thereunder or the reasonably estimated value
thereof) of $1,000,000 or more, such Assignor shall promptly notify the
Collateral Trustee thereof in a writing signed by such Assignor and describing
the details thereof and shall grant to the Collateral Trustee in such writing a
security interest therein and in the proceeds thereof, all upon the
terms of this Agreement, with such writing to be in form and substance
reasonably satisfactory to the Collateral Trustee (or as directed by an Act of
Required Debtholders).
3.12 Chattel
Paper. Upon
the request of the Collateral Trustee made at any time or from time to time,
each Assignor shall promptly furnish to the Collateral Trustee a list of all
Electronic Chattel Paper held or owned by such Assignor. Furthermore,
if requested by the Collateral Trustee, each Assignor shall promptly take all
actions which are reasonably practicable so that the Collateral Trustee has
“control” of all Electronic Chattel Paper in accordance with the requirements of
Section 9-105 of the UCC (unless the ABL Collateral Agent is granted a prior
security interest in such Electronic Chattel Paper and the same is required to
be subject to the “control” (in accordance with the requirements of Section
9-105 of the UCC) of the ABL Collateral Agent pursuant to the Intercreditor
Agreement). Each Assignor will promptly (and in any event within 10
days) following any request by the Collateral Trustee, deliver all of its
Tangible Chattel Paper to the Collateral Trustee (unless the ABL Collateral
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Agent is granted a prior security interest in such Tangible Chattel Paper and the same are required to be delivered (and are delivered) to the ABL Collateral Agent for the benefit of the holders of ABL Debt Obligations pursuant to the Intercreditor Agreement).
3.13 Further
Actions. Each
Assignor will, at its own expense, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Trustee from time to time such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, certificates, reports and other assurances or
instruments (unless the ABL Collateral Agent is granted a prior security
interest in such certificates and instruments and the same are required to be
delivered (and are delivered) to the ABL Collateral Agent for the benefit of the
holders of ABL Debt Obligations pursuant to the Intercreditor Agreement) and
take such further steps, including any and all actions as may be necessary or
required under the Federal Assignment of Claims Act, relating to its Accounts,
Contracts, Instruments and other property or rights covered by the security
interest hereby granted, as the Collateral Trustee may reasonably
require.
ARTICLE
IV
Each
Assignor represents, warrants and covenants, which representations, warranties
and covenants shall survive execution and delivery of this Agreement, as
follows:
4.1 Additional
Representations and Warranties. (a) Schedule
6A of the Perfection Certificate sets forth a true, complete and accurate list
of all (i) United States, state and foreign registrations of and applications
for registration of Marks and Domain Names owned by an Assignor, and (ii) Xxxx
Licenses that are material to the business of any Assignor;
(b) It
is the sole, exclusive, true and lawful beneficial and record owner of the Marks
and Domain Names listed in Schedule 6A of the Perfection Certificate for such
Assignor, free and clear of all Liens (other than, in the case of Marks and
Domain Names that are not material, Permitted Liens);
(c) It
owns or otherwise has the valid right to use all Marks and Domain Names used in
or necessary to conduct the business of such Assignor, free and clear of all
Liens (other than, in the case of Marks and Domain Names that are not material,
Permitted Liens);
(d) Except
as set forth on Schedule 4.1(d), to such Assignor’s knowledge, the conduct of
such Assignor’s business as currently conducted and contemplated to be conducted
does not infringe upon, dilute, misappropriate or otherwise violate any Xxxx or
Domain Name rights of any third party, in any material respect, and no such
unresolved claim has been made or is pending against such Assignor that the use
of any Xxxx or Domain Name owned or used by such Assignor infringes upon,
dilutes, misappropriates or otherwise violates the Xxxx or Domain Name rights of
any third party, and to the best of such Assignor’s knowledge, no such claim is
threatened against such Assignor;
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(e) Except
as set forth on Schedule 4.1(e), all registrations and applications for Marks
and Domain Names listed in Schedule 6A of the Perfection Certificate are
subsisting, have not been canceled (in whole or in part) and, to such Assignor’s
knowledge, are valid; such Assignor has not received and is not aware of any
third party claim that any of such registrations or applications is invalid or
unenforceable; and such Assignor not aware of any reason for any such claim or
that any of such applications material to the business of an Assignor will not
mature into registrations;
(f) It
has performed all acts and has paid all renewal, maintenance, and other fees and
taxes required to maintain each registration and application for the Marks and
Domain Names listed in Schedule 6A of the Perfection Certificate in full force
and effect (other than any such Marks and Domain Names which are, in such
Assignor’s reasonable good faith opinion, no longer used or useful in its
business or operations);
(g) The
Marks and Domain Names included in the Collateral are valid and enforceable; no
holding, decision, or judgment has been rendered in any action or proceeding
before any court or administrative authority challenging the validity of such
Assignor’s right to register, or such Assignor’s rights to own or use, any such
Marks or Domain Names; and no such action or proceeding is pending or, to such
Assignor’s knowledge, threatened;
(h) It
uses (1) appropriate statutory notice of registration in connection with its use
of registered Marks material to the business of an Assignor, and (2) consistent
standards of quality in the manufacture, distribution, and sale of all products
sold and in the provision of all services rendered under or in connection with
any Xxxx included in the Collateral and has taken all actions necessary to
ensure that all licensees of such Marks which are owned by such Assignor adhere
to such Assignor’s standards of quality;
(i) Except
as set forth on Schedule 4.1(i), to such Assignor’s knowledge, no third party is
materially infringing upon, diluting or otherwise violating any Marks or Domain
Names owned or used by an Assignor;
(j) Except
as set forth on Schedule 4.1(j), there are no Xxxx Licenses, settlements or
consents, covenants not to xxx, non-assertion assurances, or releases to which
any Assignor is a party or otherwise bound, that materially and adversely
affects Assignor’s rights to own or use any Xxxx or Domain Name included in the
Collateral; and
(k) There
is no effective financing statement or other document or instrument now
executed, or on file or recorded in any public office, granting a security
interest in or otherwise encumbering any part of the Marks or Domain Names
included in the Collateral, other than Permitted Liens and those in favor of the
Collateral Trustee.
4.2 Licenses
and Assignments. (a) Except
as otherwise permitted by the Secured Debt Documents, such Assignor shall not
(i) divest itself of any right under any Xxxx or Domain Name included in the
Collateral that is material to the Assignor’s business absent prior written
approval of the Collateral Trustee (or as directed by an Act of Required
Debtholders), (ii) grant a license to any Xxxx or Domain Name included in the
Collateral without written consent of Collateral Trustee (or as directed by an
Act of Required Debtholders), which shall not be unreasonably withheld,
conditioned or delayed, other than licenses which are Permitted Liens, nor (iii)
consent to amend, without written consent of Collateral Trustee (or as directed
by an Act of Required Debtholders), which shall not be
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unreasonably withheld, conditioned or delayed, any Xxxx License in a manner that materially and adversely affects the right of such Assignor to receive payments thereunder, or in any manner that would materially impair the value of any Xxxx or Domain Name included in the Collateral or the security interest in any such Xxxx or Domain Name created hereby. Such Assignor shall secure all consents and approvals necessary for the grant of a security interest therein to the Collateral Trustee of any material Xxxx License entered into after the Closing Date (and the exercise of Collateral Trustee’s rights hereunder with respect thereto).
(b) To
the knowledge of such Assignor, each material Xxxx License is valid, binding and
in full force and effect, and such Assignor is not in material breach or default
and no event has occurred that, with notice and/or lapse of time, would
constitute such a breach or default or permit termination, modification or
acceleration under any such Xxxx License. No party to any such Xxxx
License has given such Assignor notice of a material breach or default under any
such Xxxx License, which breach or default has not been cured, or of its
intention to terminate or cancel any such Xxxx License. None of the
material Xxxx Licenses set forth on Schedule 6A of the Perfection Certificate
constitute Excluded Assets or require any consent for the grant of the security
interest in the Assignor’s rights under such Xxxx License granted hereunder (and
the exercise of Collateral Trustee’s rights hereunder with respect
thereto).
4.3 Infringements. Such
Assignor shall, at its own cost and expense, promptly upon learning thereof,
notify the Collateral Trustee in writing of the name and address of, and furnish
such pertinent
information that may be available with respect to, any party who such Assignor
believes is, or may be, infringing, diluting or otherwise violating any of such
Assignor’s rights in and to any Xxxx or Domain Name in any material respect, or
with respect to any party claiming that such Assignor’s use of any Xxxx or
Domain Name used in such Assignor’s business violates in any material respect
any property right of that party. Such Assignor shall, at its own
cost and expense, (1) prosecute diligently in accordance with reasonable
business practices any Person infringing, diluting or otherwise violating any
Xxxx or Domain Name that is material to an Assignor’s business, including but
not limited to commencement of a suit, and (2) not settle or compromise any
pending or future litigation or administrative proceeding with respect to any
Xxxx or Domain Name that is material to an Assignor’s business, except as shall
be consistent with reasonable business practices.
4.4 Preservation
of Marks and Domain Names. Such
Assignor shall, at its own cost and expense, use its Marks and Domain Names
which are material to an Assignor’s business in interstate commerce during the
time in which this Agreement is in effect and to take all such other actions as
are reasonably necessary to preserve such Marks as trademarks or service marks
under the laws of the United States (other than any such Marks and Domain Names
which are, in such Assignor’s reasonable good faith opinion, no longer used or
useful in its business or operations). Such Assignor shall, at its
own cost and expense, maintain the level of quality of products sold and
services rendered under any Marks owned by such Assignor at a level at least
consistent with the quality of such products and services as of the date hereof,
and adequately control the quality of goods and services offered by any
licensees of its Marks to maintain such
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standards. Such Assignor shall use appropriate statutory notice of registration in connection with its use of registered Marks owned by an Assignor.
4.5 Maintenance
of Registration. At
its own cost and expense, such Assignor shall diligently process all documents
and take all other steps reasonably necessary to maintain all Xxxx and Domain
Name registrations (other than any such Marks which are, in such Assignor’s
reasonable good faith opinion, no longer used or useful in its business or
operations) included in the Collateral (and to maintain and pursue all
applications for registrations of all such Marks and Domain Names), including
but not limited to submitting affidavits of use and applications for renewals of
registration in the United States Patent and Trademark Office (or any similar
office or agency in any other country or political subdivision thereof) for all
registrations and applications for Marks, and shall pay all fees and
disbursements in connection therewith and shall not abandon any such filing of
affidavit of use or any such application of renewal prior to the exhaustion of
all administrative and judicial remedies without prior written consent of the
Collateral Trustee, or as directed by an Act of Required Debtholders (other than
with respect to registrations and applications which are no longer used or
useful in its business or operations in any material respect). Such
Assignor shall not knowingly do any act or omit to do any act that results in
any of the Marks or Domain Names it owns that are material to an Assignor’s
business lapsing, or becoming abandoned, dedicated to the public, forfeited or
unenforceable, or which would materially adversely affect the validity, grant,
or enforceability of the security interest therein granted to Collateral Trustee
hereunder.
4.6 Notice
of Proceedings. Promptly
following its becoming aware thereof, such Assignor shall, at its own cost and
expense, notify the Collateral Trustee of (a) the institution of any proceeding
in any court or administrative body or in the United States Patent and Trademark
Office (or any similar office or agency in any other country or political
subdivision thereof), or any adverse determination in any such proceeding (other
than routine office actions or other determinations in the ordinary course of
prosecution before the United States Patent and Trademark Office (or any similar
office or agency in any other country or political subdivision thereof),
regarding the validity or enforceability of any material Xxxx or Domain Name
included in Collateral, or such Assignor’s right to register, own or use such
Xxxx or Domain Name; or (b) any event which may be reasonably expected to
materially and adversely affect the rights and remedies of the Collateral
Trustee in relation thereto.
4.7 Prosecution
of Xxxx Applications. At
its own cost and expense, such Assignor shall reasonably and diligently
prosecute all material applications for Marks listed in Schedule 6A of the
Perfection Certificate for such Assignor and shall not abandon any such
application prior to exhaustion of all administrative and judicial remedies
without prior written consent of the Collateral Trustee (other than applications
that are deemed by such Assignor in its reasonable business judgment to no
longer be necessary or advisable in the conduct of such Assignor’s
business).
4.8 Future
Acquired Marks and Domain Names. If
any Assignor shall, at any time after the date hereof, obtain any ownership or
other rights in and to any additional Marks or Domain Names, then the provisions
of this Agreement shall automatically apply thereto and any such Marks and
Domain Names (other than any Excluded Assets) shall automatically constitute
Collateral and shall be subject to the security interest created by this
Agreement, without further
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action by any party. Such Assignor shall, at its own cost and expense, promptly, but in no event later than ninety (90) days from such Assignor obtaining such ownership or other rights, provide to the Collateral Trustee written notice of any such additional Marks or Domain Names which are the subject of a registration or application (including Marks and Domain Names which were theretofore unregistered and become the subject of a registration or application) and deliver to the Collateral Trustee the applicable Intellectual Property Security Agreement, or such other instrument in form and substance reasonably acceptable to the Collateral Trustee, and undertake the filing of any instruments or statements as shall be reasonably necessary to create, record, preserve, protect or perfect the Collateral Trustee’s security interest in such Collateral in the United States and any foreign jurisdiction reasonably requested by the Collateral Trustee. Further, such Assignor authorizes the Collateral Trustee to deliver a Perfection Certificate Supplement amending Schedule 6A of the Perfection Certificate to include any such applications or registrations for Marks or Domain Names (but the failure to so deliver a Perfection Certificate Supplement shall not be deemed to affect the Collateral Trustee’s security interest in such Collateral).
4.9 Remedies. (a) Subject
to the Intercreditor Agreement, the Collateral Trust Agreement and the other
Secured Debt Documents, if an Event of Default shall occur and be continuing,
the Collateral Trustee shall have the right, but shall in no way be obligated,
to take any or all of the following actions: (i) declare the entire right, title
and interest of such Assignor in and to each of the Marks and Domain Names
included in the Collateral, together with all trademark rights and rights of
protection to the same, vested in the Collateral Trustee for the benefit of the
Secured Parties, in which event such rights, title and interest shall
immediately vest, in the Collateral Trustee for the benefit of the Secured
Parties, and the Collateral Trustee shall be entitled to exercise the power of
attorney referred to in Section 1.2 to execute, cause to be acknowledged and
notarized and record such absolute assignment with the applicable agency or
registrar; (ii) take and use or sell the Marks or Domain Names and the goodwill
of such Assignor’s business connected with the use of or symbolized by the Marks
or Domain Names and the right to carry on the business and use the assets of
such Assignor in connection with which the Marks or Domain Names have been used;
and (iii) direct such Assignor to refrain, in which event such Assignor shall
refrain, from using the Marks or Domain Names in any manner whatsoever, directly
or indirectly, and such Assignor shall execute such further documents that the
Collateral Trustee may reasonably request to further confirm this and to
transfer ownership of the Marks or Domain Names and registrations and any
pending trademark applications in the United States Patent and Trademark Office
(or any similar office or agency in any other country or political subdivision
thereof) or applicable Domain Name registrar to the Collateral Trustee, and
record the same.
(b) If
an Event of Default shall occur and be continuing, the Collateral Trustee shall
have the right, but shall in no way be obligated, to file applications for
protection of the Intellectual Property included in the Collateral and/or bring
suit in the name of any Assignor, the Collateral Trustee or the Secured Parties,
to enforce the Marks and Domain Names included in
the Collateral. In the event of such suit, such Assignor
shall, at the request of the Collateral Trustee, do any and all lawful acts,
including joinder as a party, and execute any and all documents requested by the
Collateral Trustee in aid of such enforcement, and the Assignors shall promptly
reimburse and indemnify the Collateral Trustee for all reasonable out-of-pocket
costs and expenses (including reasonable attorney’s fees and expenses) incurred
by the Collateral
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Trustee in the exercise of its rights under this Section 4.9(b). In the event that the Collateral Trustee shall elect not to bring suit to enforce any such Marks or Domain Names, such Assignor shall, at the request of the Collateral Trustee and at its own cost and expense, take all actions reasonably necessary, whether by suit, proceeding or other action, to prevent and/or obtain a recovery for the infringement, dilution or other violation of rights in, diminution in value of, or other damage to any of such Marks or Domain Names by any person.
ARTICLE
V
5.1 Additional
Representations and Warranties. Each
Assignor represents, warrants and covenants, which representations, warranties
and covenants shall survive execution and delivery of this Agreement, as
follows:
(a) Schedule
6B and Schedule 6C of the Perfection Certificate sets forth a true, complete and
accurate list of all (i) United States and foreign issued Patents, Patent
applications, and Copyright registrations owned by an Assignor, (ii) Patent
Licenses and Copyright Licenses that are material to the business of any
Assignor;
(b) It
is the sole, exclusive, true and lawful beneficial and record owner of the
Patents and Copyrights listed in Schedule 6B and Schedule 6C of the Perfection
Certificate for such Assignor, free and clear of all Liens (other than, in the
case of Patents and Copyrights that are not material, Permitted
Liens);
(c) It
owns or otherwise has the valid right to use all Patents, Copyrights, Trade
Secrets and other Intellectual Property used in or necessary to conduct the
business of such Assignor, free and clear of all Liens (other than Permitted
Liens);
(d) Except
as set forth on Schedule 5.1(d), to such Assignor’s knowledge, the conduct of
such Assignor’s business as currently conducted and contemplated to be conducted
does not infringe upon, misappropriate or otherwise violate any Intellectual
Property rights of any third party, in any material respect, and no such
unresolved claim has been made or is pending against such Assignor that the use
of any Patents, Copyrights, Trade Secrets or other Intellectual Property owned
or used by such Assignor infringes upon, misappropriates or otherwise violates
the Intellectual Property rights of any third party, and to the best of such
Assignor’s knowledge, no such claim is threatened against such
Assignor;
(e) Except
as set forth on Schedule 5.1(e), all Copyright registrations, issued Patents and
Patent applications listed in Schedule 6B and Schedule 6C of the Perfection
Certificate are subsisting, have not been canceled (in whole or in part) and, to
such Assignor’s knowledge, are valid; such Assignor has not received and is not
aware of any third party claim that any of such registrations or applications is
invalid or unenforceable; and such Assignor is not aware of any reason for any
such claim or that any of such applications material to the business of an
Assignor will not mature into registrations;
(f) It
has performed all acts and has paid all renewal, maintenance, and other fees and
taxes required to maintain each Copyright registration, issued Patent and Patent
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application listed in Schedule 6B and Schedule 6C of the Perfection Certificate in full force and effect (other than any such Copyrights, Patents and Patent applications which are, in such Assignor’s reasonable good faith opinion, no longer used or useful in its business or operations);
(g) The
Patents, Copyrights and Trade Secrets included in the Collateral are valid and
enforceable; no holding, decision, or judgment has been rendered in any action
or proceeding before any court or administrative authority challenging the
validity of, such Assignor’s right to register, or such Assignor’s rights to own
or use, any such Patents, Copyrights or Trade Secrets; and no such action or
proceeding is pending or, to such Assignor’s knowledge, threatened;
(h) It
uses proper marking practices in connection with the use of Patents material to
the business of an Assignor, and appropriate notice of copyright in connection
with the publication of Copyrights material to the business of an
Assignor;
(i) It
uses commercially reasonable steps to protect the confidentiality of its Trade
Secrets;
(j) Except
as set forth on Schedule 5.1(j), to such Assignor’s knowledge, no third party is
materially infringing upon, misappropriating or otherwise violating any
Intellectual Property owned or used by an Assignor;
(k) Except
as set forth on Schedule 5.1(k), there are no Patent Licenses, Copyright
Licenses, Trade Secret Licenses or consents, covenants not to xxx, non-assertion
assurances, or releases to which any Assignor is a party or otherwise bound that
materially and adversely affects Assignor’s rights to own or use any
Intellectual Property included in the Collateral; and
(l) There
is no effective financing statement or other document or instrument now
executed, or on file or recorded in any public office, granting a security
interest in or otherwise encumbering any part of the Intellectual Property
included in the Collateral, other than Permitted Liens and those in favor of the
Collateral Trustee.
5.2 Licenses
and Assignments. (a) Except
as otherwise permitted by the Secured Debt Documents, such Assignor shall not
(i) divest itself of any right under any Patent or Copyright included in the
Collateral that is material to such Assignor’s business absent prior written
approval of the Collateral Trustee, (ii) grant a license to any Intellectual
Property included in the Collateral without written consent of Collateral
Trustee (or as directed by an Act of Required Debtholders), which shall not be
unreasonably withheld, conditioned or delayed, other than licenses which are
Permitted Liens, nor (iii) consent to amend, without consent of Collateral
Trustee (or as directed by an Act of Required Debtholders), which shall not be
unreasonably withheld, conditioned or delayed, any Patent License, Copyright
License or Trade Secret License in a manner that materially and adversely
affects the right of such Assignor to receive payments thereunder, or in any
manner that would materially impair the value of any Intellectual Property
included in the Collateral or the security interest in any such Intellectual
Property created hereby. Such Assignor shall secure all consents and
approvals necessary for the grant of a security interest therein to the
Collateral Trustee of any material Patent License,
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Copyright License or Trade Secret License entered into after the Closing Date (and the exercise of Collateral Trustee’s rights hereunder with respect thereto).
(b) To
the knowledge of such Assignor, each material Patent License, Copyright License
and Trade Secret License is valid, binding and in full force and effect, and
such Assignor is not in material breach or default and no event has occurred
that, with notice and/or lapse of time, would constitute such a breach or
default or permit termination, modification or acceleration under any such
agreement. No party to any such agreement has given such Assignor
notice of a material breach or default under any such agreement, which breach or
default has not been cured, or of its intention to terminate or cancel any such
agreement. None of the material Patent Licenses or Copyright Licenses
set forth on Schedule 6B and Schedule C of the Perfection Certificate constitute
Excluded Assets or require any consent for the grant of the security interest in
the Assignor’s rights under such Patent License, Copyright License
or Trade Secret License granted hereunder (and the exercise of Collateral
Trustee’s rights hereunder with respect thereto).
5.3 Infringements. Such
Assignor shall, at its own cost and expense, promptly upon learning thereof,
notify the Collateral Trustee in writing of the name and address of, and furnish
such pertinent information that may be available with respect to, any party who
such Assignor believes is, or may be, infringing, misappropriating, contributing
to infringement, actively inducing to infringe or otherwise violating any of
such Assignor’s rights in and to any Intellectual Property, in any material
respect, or with respect to any party claiming that such Assignor’s use of any
Intellectual Property (including the practice of any Patent or Trade Secret
Right) used in such Assignor’s business violates in any material respect any
property right of that party. Such Assignor shall, at its own cost
and expense, (1) prosecute diligently in accordance with reasonable business
practices any Person infringing, misappropriating, or otherwise violating any
Intellectual Property that is material to an Assignor’s business, including but
not limited to commencement of a suit, and (2) not settle or compromise any
pending or future litigation or administrative proceeding with respect to any
Intellectual Property that is material to an Assignor’s business, except as
shall be consistent with reasonable business practices.
5.4 Maintenance
of Patents or Copyrights. At
its own cost and expense, such Assignor shall diligently process all documents
and take all other steps reasonably necessary to maintain all Patents and
Copyrights included in the Collateral including but not limited to submitting
appropriate filings to United States Patent and Trademark Office or United
States Copyright Office (or any similar office or agency in any other country or
political subdivision thereof) for all Copyright registrations, issued Patents,
and Patent applications, and shall pay all fees and disbursements in connection
therewith (including but not limited to making timely payment of all
post-issuance fees required to maintain in force its rights under each Patent or
Copyright) and shall not abandon any such filing prior to the exhaustion of all
administrative and judicial remedies without prior written consent of the
Collateral Trustee, or as directed by an Act of Required Debtholders (other than
with respect to Copyright registrations, issued Patents, and Patent applications
which are no longer used or useful in its business or operations in any material
respect). Such Assignor shall not knowingly do any act or omit to do
any act that results in any of the Intellectual Property it owns that is
material to an Assignor’s business lapsing, or becoming abandoned, dedicated to
the public, forfeited or unenforceable, or which would materially adversely
affect the validity, grant, or enforceability of the security interest
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therein granted to Collateral Trustee hereunder. Such Assignor shall exercise reasonable measures to use proper marking practices in connection with the use of Patents material to the business of an Assignor, and appropriate notice of copyright in connection with the publication of Copyrights material to the business of an Assignor.
5.5 Notice
of Proceedings. Promptly
following its becoming aware thereof, such Assignor shall, at its own cost and
expense, notify the Collateral Trustee of (a) the institution of any proceeding
in any court or administrative body or in the United States Patent and Trademark
Office or the United States
Copyright Office (or any similar office or agency in any other country or
political subdivision thereof), or any adverse determination in any such
proceeding (other than routine office actions or other determinations in the
ordinary course of prosecution before the United States Patent and Trademark
Office or United States Copyright Office (or any similar office or agency in any
other country or political subdivision thereof), regarding the validity or
enforceability of any material Patent, Copyright or Trade Secret included in
Collateral, or such Assignor’s right to register, own or use such Patent,
Copyright or Trade Secret; or (b) any event which may be reasonably expected to
materially and adversely affect the rights and remedies of the Collateral
Trustee in relation thereto.
5.6 Prosecution
of Patent Applications. At
its own cost and expense, such Assignor shall diligently prosecute all material
applications for Patents listed in Schedule
6B of the Perfection Certificate for such Assignor and shall not abandon
any such application prior to exhaustion of all administrative and judicial
remedies without prior written consent of the Collateral Trustee, or as directed
by an Act of Required Debtholders (other than applications that are deemed by
such Assignor in its reasonable business judgment to no longer be necessary or
advisable in the conduct of such Assignor’s business).
5.7 Further
Acquired Patents, Copyrights and other Intellectual Property. If
any Assignor shall, at any time after the date hereof, obtain any ownership or
other rights in and to any additional Intellectual Property, then the provisions
of this Agreement shall automatically apply thereto and any such Intellectual
Property (other than any Excluded Assets) shall automatically constitute
Collateral and shall be subject to the security interest created by this
Agreement, without further action by any party. Such Assignor shall,
at its own cost and expense, promptly, but in no event later than ninety (90)
days from such Assignor obtaining such ownership or other rights, provide to the
Collateral Trustee written notice of any such additional Copyright
registrations, issued Patents and Patent applications (including Patents and
Copyrights which were theretofore unregistered and become the subject of a
registration or application) and deliver to the Collateral Trustee the
applicable Intellectual Property Security Agreement, or such other instrument in
form and substance reasonably acceptable to the Collateral Trustee, and
undertake the filing of any instruments or statements as shall be reasonably
necessary to create, record, preserve, protect or perfect the Collateral
Trustee’s security interest in such Collateral [in the United States and any
foreign jurisdiction reasonably requested by the Collateral
Trustee]. Further, such Assignor authorizes the Collateral Trustee to
deliver a Perfection Certificate Supplement amending Schedule 6B and Schedule 6C
of the Perfection Certificate to include any Copyright registrations, issued
Patents and Patent applications (but the failure to so deliver a Perfection
Certificate Supplement shall not be deemed to affect the Collateral Trustee’s
Security interest in such Collateral).
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5.8 Remedies. (a) Subject
to the Intercreditor Agreement, the Collateral Trust Agreement and the other
Secured Debt Documents, if an Event of Default shall occur and be continuing,
the Collateral Trustee shall have the right, but shall in no way be obligated,
to take any or all of the following
actions: (i) declare the entire right, title and interest of such
Assignor in and to each of the Patents and Copyrights (and all other
Intellectual Property) included in the Collateral vested in the Collateral
Trustee for the benefit of the Secured Parties, in which event such rights,
title and interest shall immediately vest in the Collateral Trustee for the
benefit of the Secured Parties, and the Collateral Trustee shall be entitled to
exercise the power of attorney referred to in Section 5.8(a) to execute, cause
to be acknowledged and notarized and record such absolute assignment with the
applicable agency or registrar; (ii) take and use/practice or sell the Patents,
Copyrights and other Intellectual Property included in the Collateral; and (iii)
direct such Assignor to refrain, in which event such Assignor shall refrain,
from practicing the Patents or using the Copyrights or other Intellectual
Property included in the Collateral in any manner whatsoever, directly or
indirectly, and such Assignor shall execute such further documents that the
Collateral Trustee may reasonably request to further confirm this and to
transfer ownership of the Patents and Copyrights in the United States Patent and
Trademark Office or the United States Copyright Office (or any similar office or
agency in any other country or political subdivision thereof) to the Collateral
Trustee, and record the same.
(b) Subject
to the Intercreditor Agreement, the Collateral Trust Agreement and the other
Secured Debt Documents, if an Event of Default shall occur and be continuing,
the Collateral Trustee shall have the right, but shall in no way be obligated,
to file applications for protection of the Intellectual Property included in the
Collateral and/or bring suit in the name of any Assignor, the Collateral Trustee
or the Secured Parties, to enforce the Intellectual Property included in the
Collateral. In the event of such suit, such Assignor shall, at the
request of the Collateral Trustee, do any and all lawful acts, including joinder
as a party, and execute any and all documents requested by the Collateral
Trustee in aid of such enforcement, and the Assignors shall promptly reimburse
and indemnify the Collateral Trustee for all reasonable out-of-pocket costs and
expenses incurred by the Collateral Trustee in the exercise of its rights under
this Section 5.8(b). In the event that the Collateral Trustee shall
elect not to bring suit to enforce any such Intellectual Property, such Assignor
shall, at the request of the Collateral Trustee and at its own cost and expense,
take all actions reasonably necessary, whether by suit, proceeding or other
action, to prevent and/or obtain a recovery for the infringement,
misappropriation or other violation of rights in, diminution in value of, or
other damage to any of such Intellectual Property by any person.
(c) Within
five (5) Business Days of written notice from the Collateral Trustee, such
Assignor shall make available to the Collateral Trustee, to the extent within
such Assignor’s power and authority, such personnel in such Assignor’s employ on
the date of the Event of Default as the Collateral Trustee may reasonably
designate to permit such Assignor or the Collateral Trustee to continue,
directly or indirectly, to produce, advertise, and sell the products and
services sold by such Assignor under the Intellectual Property included in the
Collateral, and such persons shall be available to perform their prior functions
on the Collateral Trustee’s behalf, at Assignor’s cost and expense.
(d) Subject
to the Intercreditor Agreement, solely for the purpose of enabling the
Collateral Trustee to exercise rights and remedies hereunder, at such time as
the Collateral
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Trustee shall be lawfully entitled to exercise such rights and remedies, such Assignor hereby grants to the Collateral Trustee an irrevocable, non-exclusive license and, to the extent permitted under any applicable agreement granting such Assignor rights in Intellectual Property, sublicense (in each case, exercisable without payment of royalties or other compensation to such Assignor) to make, have made, use, sell, copy, distribute, perform, make derivative works, publish, and exploit in any other manner for which an authorization from the owner of such Intellectual Property would be required under applicable law, with rights of sublicense, all Intellectual Property used in connection with or related to the manufacture, distribution, sale or other exploitation of any Collateral, now or hereafter owned by an Assignor or to which an Assignor has a license or other right to use, wherever the same may be located; provided that (i) the applicable Assignor shall have such rights of quality control and inspection which are reasonably necessary under applicable law to maintain the validity and enforceability of the Marks so licensed, and (ii) any sublicenses duly granted by Collateral Trustee under this license grant shall survive in accordance with their terms, notwithstanding the subsequent cure of any Event of Default that gave rise to the exercise of the Collateral Trustee’s rights and remedies. The foregoing license shall include access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout hereof.
ARTICLE
VI
6.1 Protection
of Collateral Trustee’s Security. Subject
to the Intercreditor Agreement, except as otherwise permitted by the Secured
Debt Documents, each Assignor will do nothing to impair the rights of the
Collateral Trustee in the Collateral. Each Assignor will at all times
maintain insurance, at such Assignor’s own expense to the extent and in the
manner provided in the Secured Debt Documents. Subject to the
Intercreditor Agreement, except to the extent otherwise permitted to be retained
by such Assignor or applied by such Assignor pursuant to the terms of the
Secured Debt Documents, the Collateral Trustee shall, at the time any proceeds
of such insurance are distributed to the Secured Parties, apply such proceeds
for application to the Secured Debt Obligations as provided in Section 3.4 of
the Collateral Trust Agreement. Each Assignor assumes all liability
and responsibility in connection with the Collateral acquired by it and the
liability of such Assignor to pay the Secured Debt Obligations shall in no way
be affected or diminished by reason of the fact that such Collateral may be
lost, destroyed, stolen, damaged or for any reason whatsoever unavailable to
such Assignor.
6.2 Warehouse
Receipts Non-Negotiable. To
the extent practicable, each Assignor agrees that if any warehouse receipt
or receipt in the nature of a warehouse receipt is issued with respect to any of
its Inventory or other Goods, such Assignor shall request that such warehouse
receipt or receipt in the nature thereof shall not be “negotiable” (as such term
is used in Section 7-104 of the UCC as in effect in any relevant jurisdiction or
under other relevant law).
6.3 Additional
Information. (a) Each
Assignor will, at its own expense, from time to time upon the reasonable request
of the Collateral Trustee, promptly (and in any event within 30 days after its
receipt
of the respective request) furnish to the Collateral Trustee such information
(not subject to legal privilege) with respect to the Collateral (including the
identity of the Collateral or such components thereof as may have been requested
by the Collateral
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Trustee, the value and location of such Collateral, etc.) as may be reasonably requested by the Collateral Trustee. Without limiting the forgoing, each Assignor agrees that it shall furnish to the Collateral Trustee a Perfection Certificate Supplement with respect to the Perfection Certificate concurrently with delivery to the Trustee of annual reports on Form 10-K (or any successor or comparable form) and quarterly reports on Form 10-Q (or any successor or comparable form) pursuant to Section 4.02(a) of the Indenture, and otherwise as may from time to time be reasonably requested by the Collateral Trustee.
(b) The
Assignors shall promptly notify the Collateral Trustee if any material portion
of the Collateral is damaged or destroyed. The Assignors will furnish
to the Collateral Trustee prompt written notice of any casualty or other insured
damage to any material portion of the Collateral or the commencement of any
action or proceeding for the taking or expropriation of any material portion of
the Collateral (and any Mortgaged Property and New Mortgaged Property (each as
defined in the Indenture) or any part thereof) or interest therein under power
of eminent domain or by condemnation or similar proceeding.
6.4 Further
Actions. Each
Assignor will, at its own expense and upon the reasonable request of the
Collateral Trustee (but in no event more than four (4) times per calendar year
with regard to any portion of the Collateral, so long as no Event of Default is
continuing), make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Trustee from time to time such lists, descriptions and designations
of its Collateral, warehouse receipts, receipts in the nature of warehouse
receipts, bills of lading, documents of title, vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements, transfer
endorsements, certificates, reports and other assurances or instruments
(unless the ABL Collateral Agent is granted a prior security interest in such
certificates and instruments and the same are required to be delivered (and are
delivered) to the ABL Collateral Agent for the benefit of the holders of ABL
Debt Obligations pursuant to the Intercreditor Agreement) and take such further
steps relating to the Collateral and other property or rights covered by the
security interest hereby granted, which the Collateral Trustee deems reasonably
appropriate or advisable to perfect, preserve or protect its security interest
in the Collateral.
6.5 Financing
Statements. Each
Assignor agrees to deliver to the Collateral Trustee such financing statements,
in form reasonably acceptable to the Collateral Trustee, as the Collateral
Trustee may from time to time reasonably request or as are reasonably necessary
or desirable in the opinion of the Collateral Trustee to establish and maintain
a valid, enforceable, perfected security interest in the Collateral as provided
herein and the other rights and security contemplated hereby. Each
Assignor will pay any applicable filing fees, recordation taxes and related
expenses relating to its Collateral. Each Assignor hereby authorizes
the Collateral Trustee to file any such financing statements (and such
authorization includes describing the Collateral as “all assets” of such
Assignor or words of similar meaning).
6.6 Intellectual
Property Filings. Each
Assignor hereby authorizes the Collateral Trustee to execute and/or submit
filings with the United States Patent and Trademark Office or United States
Copyright Office (or any successor office or any similar office in any country
or political subdivision thereof), as applicable, including this Agreement, the
Intellectual Property Security Agreements, or other comparable documents, and to
take such other actions as may be required under applicable law for the purpose
of perfecting, recording, confirming, continuing,
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enforcing or protecting the security interest granted by such Assignor hereunder, without the signature of such Assignor, naming such Assignor, as debtor, and the Collateral Trustee, as secured party.
ARTICLE
VII
7.1 Remedies;
Obtaining the Collateral Upon Default. Subject
to the Intercreditor Agreement, each Assignor agrees that, if any Event of
Default shall have occurred and be continuing, then and in every such case, the
Collateral Trustee, in addition to any rights now or hereafter existing under
applicable law and under the other provisions of this Agreement, shall have all
rights as a secured creditor under any UCC, and such additional rights and
remedies to which a secured creditor is entitled under the laws in effect in all
relevant jurisdictions and may:
(i) personally,
or by agents or attorneys, immediately take possession of the Collateral or any
part thereof, from such Assignor or any other Person who then has possession of
any part thereof with or without notice or process of law, and for that purpose
may enter upon such Assignor’s premises where any of the Collateral is located
and remove the same and use in connection with such removal any and all
services, supplies, aids and other facilities of such Assignor;
(ii) instruct
the obligor or obligors on any agreement, instrument or other obligation
(including, without limitation, the Accounts and the Contracts)
constituting the Collateral to make any payment required by the terms of
such agreement, instrument or other obligation directly to the Collateral
Trustee and may exercise any and all remedies of such Assignor in respect of
such Collateral;
(iii) instruct
all banks which have entered into a control agreement with the Collateral
Trustee to transfer all monies, securities and instruments held by such
depositary bank to the Collateral Proceeds Account;
(iv) sell,
assign or otherwise liquidate any or all of the Collateral or any part thereof
in accordance with Section 7.2, or direct such Assignor to sell, assign or
otherwise liquidate any or all of the Collateral or any part thereof, and, in
each case, take possession of the proceeds of any such sale or
liquidation;
(v) take
possession of the Collateral or any part thereof, by directing such Assignor in
writing to deliver the same to the Collateral Trustee at any reasonable place
or places
designated by the Collateral Trustee, in which event such Assignor shall at its
own expense:
(x) forthwith
cause the same to be moved to the place or places so designated by the
Collateral Trustee and there delivered to the Collateral Trustee;
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(y) store
and keep any Collateral so delivered to the Collateral Trustee at such place or
places pending further action by the Collateral Trustee as provided in Section
7.2; and
(z) while
the Collateral shall be so stored and kept, provide such security and
maintenance services as shall be reasonably necessary to protect the same and to
preserve and maintain it in good condition;
(vi) license
or sublicense, whether on an exclusive or nonexclusive basis, any Intellectual
Property included in the Collateral for such term and on such conditions and in
such manner as the Collateral Trustee shall in its sole judgment
determine;
(vii) subject
to the Intercreditor Agreement, apply any monies constituting Collateral or
proceeds thereof in accordance with the provisions of Section 3.4 of the
Collateral Trust Agreement; and
(viii) take
any other action as specified in clauses (1) through (5), inclusive, of Section
9-607 of the UCC;
it being
understood that each Assignor’s obligation so to deliver the Collateral is of
the essence of this Agreement and that, accordingly, upon application to a court
of equity having jurisdiction, the Collateral Trustee shall be entitled to a
decree requiring specific performance by such Assignor of said
obligation. By accepting the benefits of this Agreement and each
other Security Document, the Secured Parties expressly acknowledge and agree
that this Agreement and each other Security Document may be enforced only by the
action of the Collateral Trustee acting in a manner consistent with the
Collateral Trust Agreement and that no other Secured Party shall have any right
individually to seek to enforce or to enforce this Agreement or to realize upon
the security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Collateral Trustee for the benefit
of the Secured Parties upon the terms of this Agreement, the Intercreditor
Agreement, the Collateral Trust Agreement and the other Security
Documents.
7.2 Remedies;
Disposition of the Collateral. Subject
to the Intercreditor Agreement, if any Event of Default shall have occurred and
be continuing, then any Collateral repossessed by the Collateral Trustee under
or pursuant to Section 7.1 and any other Collateral whether or not so
repossessed by the Collateral Trustee, may be sold, assigned, leased or
otherwise disposed of under one or more contracts or as an entirety, and
without the necessity of gathering at the place of sale the property to be sold,
and in general in such manner, at such time or times, at such place or places
and on such terms as the Collateral Trustee may, in compliance with any
mandatory requirements of applicable law, determine
to be commercially reasonable. Any of the Collateral may be sold,
leased or otherwise disposed of, in the condition in which the same existed
when taken by the Collateral Trustee or after any overhaul or repair at the
expense of the relevant Assignor which the Collateral Trustee shall determine to
be commercially reasonable. Any such sale, lease or other disposition
may be effected by means of a public disposition or private disposition,
effected in accordance with the applicable requirements (in each case if and to
the extent applicable) of Sections 9-610 through 9-613 of the UCC and/or such
other mandatory requirements of applicable law as may apply to the respective
disposition.
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The Collateral Trustee may, without notice or publication, adjourn any public or private disposition or cause the same to be adjourned from time to time by announcement at the time and place fixed for the disposition, and such disposition may be made at any time or place to which the disposition may be so adjourned. To the extent permitted by any such requirement of law, the Collateral Trustee may bid for and become the purchaser (and may pay all or any portion of the purchase price by crediting Secured Debt Obligations against the purchase price) of the Collateral or any item thereof, offered for disposition in accordance with this Section 7.2 without accountability to the relevant Assignor. If, under applicable law, the Collateral Trustee shall be permitted to make disposition of the Collateral within a period of time which does not permit the giving of notice to the relevant Assignor as hereinabove specified, the Collateral Trustee need give such Assignor only such notice of disposition as shall be required by such applicable law. Each Assignor agrees to do or cause to be done all such other acts and things as may be reasonably necessary to make such disposition or dispositions of all or any portion of the Collateral valid and binding and in compliance with any and all applicable laws, regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or governmental instrumentalities, domestic or foreign, having jurisdiction over any such sale or sales, all at such Assignor’s expense. Solely for the purpose of enabling the Collateral Trustee to exercise rights and remedies under this Article VII, at such time as the Collateral Trustee shall be lawfully entitled to exercise such rights and remedies, each Assignor hereby grants to the Collateral Trustee, to the extent it has the lawful right to do so, an irrevocable, non-exclusive worldwide license (exercisable without payment of royalty or other compensation to such Assignor), to use, operate under, license, or sublicense any Intellectual Property now or hereafter owned by or licensed to such Assignor, subject, in the case of Marks, to the maintenance of quality standards with respect to the products and services sold under such Marks at a level at least substantially comparable to that prevailing at the time of the occurrence of the Event of Default.
7.3 Waiver
of Claims. Except
as otherwise provided in this Agreement, EACH ASSIGNOR HEREBY WAIVES, TO
THE EXTENT PERMITTED BY APPLICABLE LAW AND JUDICIAL HEARING IN CONNECTION WITH
THE COLLATERAL TRUSTEE’S TAKING POSSESSION OR THE COLLATERAL TRUSTEE’S
DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL
PRIOR HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES, and each Assignor hereby
further waives, to the extent permitted by law:
(i) all
damages occasioned by such taking of possession or any such disposition except
any damages which are the direct result of the Collateral Trustee’s gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision);
(ii) all
other requirements as to the time, place and terms of sale or other
requirements with respect to the enforcement of the Collateral Trustee’s
rights hereunder; and
(iii) all
rights of redemption, appraisement, valuation, stay, extension or moratorium now
or hereafter in force under any applicable law in order to prevent or delay the
enforcement of this Agreement or the absolute sale of the Collateral or any
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portion thereof, and each Assignor, for itself and all who may claim under it, insofar as it or they now or hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale
of, or the grant of options to purchase, or any other realization upon, any
Collateral shall operate to divest all right, title, interest, claim and demand,
either at law or in equity, of the relevant Assignor therein and thereto,
and shall be a perpetual bar both at law and in equity against such Assignor and
against any and all Persons claiming or attempting to claim the Collateral
so sold, optioned or realized upon, or any part thereof, from, through and under
such Assignor.
7.4 Application
of Proceeds. Subject
to the Intercreditor Agreement, the Collateral Trust Agreement and the other
Secured Debt Documents, all moneys collected by the Collateral Trustee upon any
sale or other disposition of the Collateral, together with all other moneys
received by the Collateral Trustee hereunder, shall be applied in accordance
with Section 3.4 of the Collateral Trust Agreement.
7.5 Remedies
Cumulative. Each
and every right, power and remedy hereby specifically given to the Collateral
Trustee shall be in addition to every other right, power and remedy specifically
given to the Collateral Trustee under this Agreement, the other Secured Debt
Documents or now or hereafter existing at law, in equity or by statute and each
and every right, power and remedy whether specifically herein given or otherwise
existing may be exercised from time to time or simultaneously and as often and
in such order as may be deemed expedient by the Collateral
Trustee. All such rights, powers and remedies shall be cumulative and
the exercise or the beginning of the exercise of one shall not be deemed a
waiver of the right to exercise any other or others. No delay or
omission of the Collateral Trustee in the exercise of any such right, power or
remedy and no renewal or extension of any of the Secured Debt Obligations shall
impair any such right, power or remedy or shall be construed to be a waiver of
any Default or Event of Default or an acquiescence thereof. No notice
to or demand on any Assignor in any case shall entitle it to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Collateral Trustee to any other or further
action in any circumstances without notice or demand. In the event
that the Collateral Trustee shall bring any suit to enforce any of its rights
hereunder and shall be entitled to judgment, then in such suit the
Collateral
Trustee may recover reasonable out-of-pocket expenses, including reasonable
attorneys’ fees, and the amounts thereof shall be included in such
judgment.
7.6 Discontinuance
of Proceedings. In
case the Collateral Trustee shall have instituted any proceeding to enforce
any right, power or remedy under this Agreement by foreclosure, sale, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for any
reason or shall have been determined adversely to the Collateral Trustee, then
and in every such case the relevant Assignor, the Collateral Trustee and each
holder of any of the Secured Debt Obligations shall be restored to their former
positions and rights hereunder with respect to the Collateral subject to the
security interest created under this Agreement, and all rights, remedies and
powers of the Collateral Trustee shall continue as if no such proceeding had
been instituted.
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ARTICLE VIII
8.1 Indemnity. (a) Each
Assignor jointly and severally agrees to indemnify, reimburse and hold
the Collateral Trustee, each other Secured Party and their respective
successors, assigns, employees, affiliates and agents (hereinafter in this
Section 8.1 referred to individually as “Indemnitee,”
and collectively as “Indemnitees”)
harmless from any and all liabilities, obligations, damages, injuries,
penalties, claims, demands, actions, suits, judgments and any and all
out-of-pocket costs, expenses or disbursements (including reasonable attorneys’
fees and expenses) (for the purposes of this Section 8.1 the foregoing are
collectively called “expenses”)
of whatsoever kind and nature imposed on, asserted against or incurred by
any of the Indemnitees in any way relating to or arising out of this Agreement,
any other Secured Debt Document or any other document executed in connection
herewith or therewith or in any other way connected with the administration of
the transactions contemplated hereby or thereby or the enforcement of any of the
terms of, or the preservation of any rights under any thereof, or in any way
relating to or arising out of the manufacture, ownership, ordering, purchase,
delivery, control, acceptance, lease, financing, possession, operation,
condition, sale, return or other disposition, or use of the Collateral
(including, without limitation, latent or other defects, whether or not
discoverable), the violation of the laws of any country, state or other
governmental body or unit, any tort (including, without limitation, claims
arising or imposed under the doctrine of strict liability, or for or on account
of injury to or the death of any Person (including any Indemnitee), or property
damage), or contract claim; provided that no Indemnitee shall be indemnified
pursuant to this Section 8.1(a) for losses, damages or liabilities to the extent
caused by the gross negligence or willful misconduct of such Indemnitee (as
determined by a court of competent jurisdiction in a final and non-appealable
decision). Each Assignor agrees that upon written notice by any
Indemnitee of the assertion of such a liability, obligation, damage, injury,
penalty, claim, demand, action, suit or judgment, the relevant Assignor shall
assume full responsibility for the defense thereof. Each Indemnitee
agrees to use its best efforts to promptly notify the relevant Assignor of any
such assertion of which such Indemnitee has knowledge.
(b) Without
limiting the application of Section 8.1(a), each Assignor agrees, jointly and
severally, to pay or reimburse the Collateral Trustee for any and all reasonable
out-of-pocket fees, costs and expenses (including reasonable attorney’s fees and
expenses) of whatever kind or nature incurred in connection with the creation,
preservation or protection of the Collateral Trustee’s Liens on, and
security interest in, the Collateral, including, without limitation, all fees
and taxes in connection with the recording or filing of instruments and
documents in public offices, payment or discharge of any taxes or Liens upon or
in respect of the Collateral, premiums for insurance with respect to the
Collateral and all other fees, costs and expenses in connection with protecting,
maintaining or preserving the Collateral and the Collateral Trustee’s interest
therein, whether through judicial proceedings or otherwise, or in defending
or prosecuting any actions, suits or proceedings arising out of or relating to
the Collateral.
(c) Without
limiting the application of Section 8.1(a) or (b), each Assignor agrees, jointly
and severally, to pay, indemnify and hold each Indemnitee harmless from and
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against any loss, costs, damages and expenses which such Indemnitee may suffer, expend or incur in consequence of or growing out of any misrepresentation by any Assignor in this Agreement, any other Secured Debt Document or in any writing contemplated by or made or delivered pursuant to or in connection with this Agreement or any other Secured Debt Document.
(d) If
and to the extent that the obligations of any Assignor under this Section 8.1
are unenforceable for any reason, such Assignor hereby agrees to make the
maximum contribution to the payment and satisfaction of such obligations which
is permissible under applicable law.
8.2 Indemnity
Obligations Secured by Collateral; Survival. Any
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Secured Debt Obligations secured by the
Collateral. The indemnity obligations of each Assignor contained in
this Article VIII shall continue in full force and effect notwithstanding the
full repayment of all of the Senior Secured Notes issued under the Indenture and
the payment of all other Secured Debt Obligations and notwithstanding the
discharge thereof.
ARTICLE
IX
The
following terms shall have the meanings herein specified. Such
definitions shall be equally applicable to the singular and plural forms of
the terms defined.
“Account”
shall mean, without duplication, (i) an “account” as such term is defined in
Article 9 of the New York UCC, as applicable, (ii) any and all supporting
obligations in respect thereof and (iii) any right to payment of a monetary
obligation, whether or not earned by performance, (a) for property
that has been or is to be sold, leased, licensed, assigned, or otherwise
disposed of, or (b) for services rendered or to be rendered. The term “Account”
does not
include (a) rights to payment evidenced by chattel paper or an instrument, (b)
commercial tort claims, (c) deposit accounts, (d) investment property, or (e)
letter-of-credit rights or letters of credit. Without limiting the
foregoing, the term “account” shall include all Health-Care-Insurance
Receivables.
“Account
Debtor” shall mean each Person who is obligated on an
Account.
“Agreement”
shall have the meaning provided in the first paragraph hereof.
“As-Extracted
Collateral” shall mean “as-extracted collateral” as such term is defined
in the UCC as in effect on the date hereof in the State of New
York.
“Assignor”
shall have the meaning provided in the first paragraph of this
Agreement.
“Chattel
Paper” shall mean “chattel paper” as such term is defined in the UCC as
in effect on the date hereof in the State of New York. Without
limiting the foregoing, the term
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“Chattel Paper” shall in any event include all Tangible Chattel Paper and all Electronic Chattel Paper.
“Collateral”
shall have the meaning provided in Section 1.1(a) of this
Agreement.
“Collateral
Trustee” shall have the meaning provided in the first paragraph of this
Agreement.
“Commercial
Tort Claims” shall mean “commercial tort claims” as such term is defined
in the UCC as in effect on the date hereof in the State of New
York.
“Commodity
Accounts” shall mean all “commodity accounts” as such term is defined in
the UCC as in effect on the date hereof in the State of New York.
“Contract
Rights” shall mean all rights of any Assignor under each Contract,
including, without limitation, (i) any and all rights to receive and demand
payments under any or all Contracts, (ii) any and all rights to receive and
compel performance under any or all Contracts and (iii) any and all other
rights, interests and claims now existing or in the future arising in connection
with any or all Contracts.
“Contracts”
shall mean all contracts between any Assignor and one or more additional parties
(including, without limitation, any Interest Rate Protection Agreements, Other
Hedging Agreements, licensing agreements and any partnership agreements, joint
venture agreements and limited liability company agreements).
“Copyright
Licenses” shall mean any and all agreements (whether written or oral)
providing for the granting of any right in or to any Copyrights (whether such
Assignor is licensee or licensor thereunder).
“Copyrights”
shall mean all United States or foreign copyrights (including community
designs), including copyrights in software and databases, and all Mask Works (as
defined
under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or not
registered and whether published or unpublished, and, with respect to any and
all of the foregoing: (i) all registrations and applications therefor
(whether in the United States Copyright Office or any foreign equivalent
office), (ii) all extensions and renewals thereof, (iii) all rights
corresponding thereto throughout the world, (iv) all rights to xxx for past,
present and future infringements thereof and (v) all Proceeds of the foregoing,
including licenses, royalties, income, fees, payments, claims, damages and
proceeds of suit now or hereafter due and/or payable with respect
thereto.
“Deposit
Accounts” shall mean all “deposit accounts” as such term is defined in
the UCC as in effect on the date hereof in the State of New York.
“Documents”
shall mean “documents” as such term is defined in the UCC as in effect on the
date hereof in the State of New York.
“Domain
Names” shall mean all Internet domain names and associated URL
addresses.
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“Electronic
Chattel Paper” shall mean “electronic chattel paper” as such term is
defined in the UCC as in effect on the date hereof in the State of New
York.
“Equipment”
shall mean any “equipment” as such term is defined in the UCC as in effect on
the date hereof in the State of New York, and in any event, shall include, but
shall not be limited to, all machinery, equipment, furnishings, fixtures and
vehicles now or hereafter owned by any Assignor and any and all additions,
substitutions and replacements of any of the foregoing and all accessions
thereto, wherever located, together with all attachments, components,
parts, equipment and accessories installed thereon or affixed
thereto.
“Excluded
Accounts” shall mean (x) disbursement accounts established solely for the
payment of medical and dental expenses in connection with health insurance
programs for employees of the Issuer and its Subsidiaries, (y) xxxxx cash
accounts established (or otherwise maintained) by any Assignor that do not have
cash balances at any time exceeding $50,000 in the aggregate for all such xxxxx
cash accounts of the Assignors and (z) each checking and/or disbursement account
maintained by any Assignor for its respective general corporate purposes,
including for the purpose of paying their trade payables and other operating
expenses and funded by such Assignor in the ordinary course of business
consistent with past practices; provided
that in no event shall Excluded Accounts include the Collateral Proceeds
Account.
“Excluded
Assets” shall mean the collective reference to:
(1) all
interests in real property other than (i) fee interests if the greater of the
cost or the book value of such fee interest is more than $2,000,000 and (ii)
leasehold interests in real property contemplated to be used by the applicable
Assignor for any material manufacturing operations, in each case, as designated
as such by such Assignor to the Collateral Trustee in writing (except in cases
where the applicable Assignor has been unable to obtain the consent of the
landlord of such leased property to the granting of a Lien on such leasehold
interests after using commercially reasonable efforts to do so);
(2) any
property or asset to the extent that the grant of a Lien under this Agreement in
such property or asset is prohibited by applicable law or requires any consent
of any governmental authority not obtained pursuant to applicable law; provided
that such property or asset will be an Excluded Asset only to the extent and for
so long as the consequences specified above will result and will cease to be an
Excluded Asset and will become subject to the Lien granted under this Agreement,
immediately and automatically, at such time as such consequences will no longer
result;
(3) any
lease, license, contract, property right or agreement to which such Assignor is
a party or any of its rights or interests thereunder only to the extent and only
for so long as the grant of a Lien under this Agreement would constitute or
result in a breach, termination or default under or requires any consent not
obtained under any such lease, license, contract, agreement or property right
(other than to the extent that any such term would be rendered ineffective
pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor
provision or provisions) of any relevant jurisdiction or any other applicable
law (including the Bankruptcy Code) or principles of equity); provided
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that such
lease, license, contract, property right or agreement will be an Excluded Asset
only to the extent and for so long as the consequences specified above will
result and will cease to be an Excluded Asset and will become subject to the
Lien granted under this Agreement, immediately and automatically, at such time
as such consequences will no longer result;
(4)
Equity Interests in ACCO Brands Receivables Funding LLC, so long as such entity
is a Receivables Subsidiary (as defined in the Indenture);
(5)
Equity Interests or other securities of any Subsidiary of the Issuer (other than
ACCO Brands Europe Holding LP) to the extent the pledge of such Equity Interests
or other securities would require ACCO to file separate financial statements
with SEC with respect to such Subsidiary pursuant to Rule 3-16 of Regulation S-X
under the Securities Act, as in effect from time to time; provided that in the
event that Rule 3-16 of Regulation S-X under the Securities Act is amended,
modified or interpreted by the SEC to permit (or is replaced with another rule
or regulation, or any other law, rule or regulation is adopted, which would
permit) all of such Subsidiary’s Equity Interests or other securities to be
pledged to secure the Secured Debt Obligations without the filing with the SEC
of separate financial statements of such Subsidiary, then all of the Equity
Interests and other securities of such Subsidiary shall automatically be deemed
to be part of the Collateral (and this Agreement shall be amended to reflect
such inclusion in the Collateral);
(6) any
amount of voting interests of any Foreign Subsidiary exceeding, and only to the
extent that such Voting Equity Interests exceed, 65% of the total Voting Equity
Interests of such Foreign Subsidiary held by such Assignor;
(7) the
Equity Interests of any Foreign Subsidiary other than (A) ACCO Mexicana S.A. de
C.V., ACCO Brands Canada Inc. and ACCO Brands Europe Holding LP; and (B) any
Foreign Subsidiary directly owned by such Assignor if the product of that
Foreign Subsidiary’s EBITDA for the preceding fiscal year times 7.0 exceeds
$42.5 million, such determination
to be made annually at the conclusion of the audit of the Issuer’s annual
financial statements, in each case subject to clauses (5) and (6)
above.
“Farm
Products” shall mean “farm products” as such term is defined in the UCC
as in effect on the date hereof in the State of New York.
“Fixtures”
shall mean “fixtures” as such term is defined in the UCC as in effect on the
date hereof in the State of New York.
“General
Intangibles” shall mean “general intangibles” as such term is defined in
the UCC as in effect on the date hereof in the State of New York.
“Goods”
shall mean “goods” as such term is defined in the UCC as in effect on the date
hereof in the State of New York.
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“Health-Care-Insurance
Receivable” shall mean any “health-care-insurance receivable” as such
term is defined in the UCC as in effect on the date hereof in the State of New
York.
“Indemnitee”
shall have the meaning provided in Section 8.1(a) of this
Agreement.
“Instrument”
shall mean “instruments” as such term is defined in the UCC as in effect on the
date hereof in the State of New York.
“Intellectual
Property” shall mean all Copyrights, Copyright Licenses, Patents, Patent
Licenses, Xxxxx, Xxxx Licenses, Domain Names, Trade Secrets, Trade Secret
Licenses, and any other similar intangible rights, to the extent not covered by
the foregoing, and with respect to any and all of such intangible
rights: (i) all registrations and applications therefor (whether in
the United States Copyright Office or any foreign equivalent office), (ii) all
extensions and renewals thereof, (iii) all rights corresponding thereto
throughout the world, (iv) all rights to xxx for past, present and future
infringements thereof, (v) all Proceeds of the foregoing, including licenses,
royalties, income, fees, payments, claims, damages and proceeds of suit now or
hereafter due and/or payable with respect thereto, and (vi) all agreements
(whether written or oral) providing for the granting of any right in or to such
intangible rights (whether such Assignor is licensee or licensor
thereunder).
“Intellectual
Property Security Agreements” shall mean agreements substantially in the
form of Annex A, Annex B, or Annex C hereto.
“Inventory”
shall mean merchandise, inventory and goods, and all additions,
substitutions and replacements thereof and all accessions thereto, wherever
located, together with all goods, supplies, incidentals, packaging materials,
labels, materials and any other items used or usable in manufacturing,
processing, packaging or shipping same, in all stages of production from raw
materials through work in process to finished goods, and all products and
proceeds of whatever sort and wherever located any portion thereof which may be
returned, rejected, reclaimed or repossessed by the Collateral Trustee from any
Assignor’s customers, and shall specifically
include all “inventory” as such term is defined in the UCC as in effect on the
date hereof in the State of New York.
“Investment
Property” shall mean “investment property” as such term is defined in the
UCC as in effect on the date hereof in the State of New York.
“Issuer”
shall have the meaning provided in the recitals hereto.
“Letter-of-Credit
Rights” shall mean “letter-of-credit rights” as such term is defined in
the UCC as in effect on the date hereof in the State of New York.
“Location”
of any Assignor, shall mean such Assignor’s “location” as determined pursuant to
Section 9-307 of the UCC.
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“Xxxx
License”
shall
mean any and all agreements (whether written or oral) providing for the granting
of any right in or to any Marks (whether such Assignor is licensee or licensor
thereunder).
“Marks”
shall mean (i) all United States and foreign trademarks, trade names, corporate
names, company names, business names, fictitious business names, service marks,
certification marks, collective marks, trade dress, slogans, logos, other source
or business identifiers, designs and general intangibles of a like nature, and
with respect to any and all of the foregoing: (i) all registrations
and applications for any of the foregoing, (ii) all extensions or renewals of
any of the foregoing, (iii) all common-law rights related thereto, (iv) all
corresponding rights thereto throughout the world, (v) all of the goodwill of
the business connected with the use of and symbolized by the foregoing, (vi) the
right to xxx for past, present and future infringement, dilution or other
violation of any of the foregoing or for any injury to goodwill, and (vii) all
Proceeds of the foregoing, including licenses, royalties, income, fees,
payments, claims, damages and proceeds of suit now or hereafter due and/or
payable with respect thereto.
“Money”
shall mean “money” as such term is defined in the UCC as in effect on the date
hereof in the State of New York.
“Patent
Licenses” shall mean all agreements (whether written or oral) providing
for the granting of any right in or to Patents (whether such Assignor is
licensee or licensor thereunder).
“Patents”
shall mean all United States and foreign patents, certificates of invention,
industrial designs or similar industrial property rights, and applications for
any of the foregoing, including, but not limited to: (i) all
reissues, divisions, continuations (including, but not limited to,
continuations-in-part and improvements thereof), extensions, renewals, and
reexaminations thereof, (ii) inventions described and claimed therein, (iii) all
rights corresponding thereto throughout the world, (iv) all inventions and
improvements described therein, (v) all rights to xxx for past, present and
future infringements or other violations thereof, (vi) all licenses, claims,
damages, and proceeds of suit arising therefrom, and (vii) all Proceeds of the
foregoing, including licenses, royalties, income, fees, payments, claims,
damages and proceeds of suit now or hereafter due and/or payable with respect
thereto.
“Perfection
Certificate” shall mean the Perfection Certificate, dated as of September
30, 2009 (and as amended, modified, restated and/or supplemented from time to
time, including by the execution and delivery of a Perfection Certificate
Supplement), by and among the Issuer and the other Assignors.
“Perfection
Certificate Supplement” shall mean a supplement to the Perfection
Certificate in form and substance reasonably acceptable to the Collateral
Trustee.
“Permits”
shall mean, to the extent permitted to be assigned by the terms thereof or by
applicable law, all licenses, permits, rights, orders, variances, franchises or
authorizations of or from any governmental authority or agency.
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“Proceeds”
shall mean all “proceeds” as such term is defined in the UCC as in effect in the
State of New York on the date hereof and, in any event, shall also include, but
not be limited to, (i) any and all proceeds of any insurance, indemnity,
warranty or guaranty payable to the Collateral Trustee or any Assignor from time
to time with respect to any of the Collateral, (ii) any and all payments (in any
form whatsoever) made or due and payable to any Assignor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental authority
(or any person acting under color of governmental authority) and (iii) any
and all other amounts from time to time paid or payable under or in connection
with any of the Collateral.
“Receivables”
shall have the meaning specified in Section 1.01(a)(xix).
“Registered
Organization” shall mean “registered organizations” as such term is
defined in the UCC as in effect on the date hereof in the State of New
York.
“Related
Contracts” shall have the meaning specified in Section
1.01(a)(xix).
“Secured
Debt Documents” shall mean and include this Agreement, the other Credit
Documents, each Secured Hedging Agreement and each Secured Cash Management
Agreement.
“Securities
Accounts” shall mean all “securities accounts” as such term is defined in
the UCC as in effect on the date hereof in the State of New York.
“Software”
shall mean “software” as such term is defined in the UCC as in effect on the
date hereof in the State of New York.
“Supporting
Obligations” shall mean any “supporting obligation” as such term is
defined in the UCC as in effect on the date hereof in the State of New York, now
or hereafter owned by any Assignor, or in which any Assignor has any rights,
and, in any event, shall include, but shall not be limited to all of such
Assignor’s rights in any Letter-of-Credit Right or secondary obligation that
supports the payment or performance of, and all security for, any Account,
Chattel Paper, Document, General Intangible, Instrument or Investment
Property.
“Tangible
Chattel Paper” shall mean “tangible chattel paper” as such term is
defined in the UCC as in effect on the date hereof in the State of New
York.
“Timber-to-be-Cut”
shall mean “timber-to-be-cut” as such term is defined in the UCC as in effect on
the date hereof in the State of New York.
“Trade
Secret Licenses” shall mean any and all agreements (whether written or
oral) providing for the granting of any right in or to Trade Secrets (whether
such Assignor is licensee or licensor thereunder).
“Trade
Secrets” shall mean all trade secrets and all other confidential or
proprietary information, data
and databases, processes, designs, inventions, technology, writings, plans,
specifications and schematics, engineering drawings, customer lists and
know-how, whether or not such Trade Secret has been reduced to a writing or
other tangible form, including
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all documents and things embodying, incorporating, or referring in any way to such Trade Secret, including but not limited to: (i) any secretly held existing engineering or other data, information, production procedures and other know-how relating to the design manufacture, assembly, installation, use, operation, marketing, sale and/or servicing of any products or business worldwide, (ii) the right to xxx for past, present and future misappropriation or other violation of any Trade Secret, and (iii) all Proceeds of the foregoing, including licenses, royalties, income, fees, payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect thereto.
“Trade
Secret Rights” shall mean the rights of an Assignor in any Trade Secret
it holds.
“Transmitting
Utility” shall have the meaning given such term in Section 9-102(a)(80)
of the UCC as in effect on the date hereof in the State of New
York.
“UCC”
shall mean the Uniform Commercial Code as in effect from time to time in the
relevant jurisdiction.
ARTICLE
X
10.1 Notices. Except
as otherwise specified herein, all notices, requests, demands or other
communications to or upon the respective parties hereto shall be made in
accordance with Section 7.7 of the Collateral Trust
Agreement.
10.2 Waiver;
Amendment. Subject
to Section 2.11 of the Intercreditor Agreement, none of the terms and conditions
of this Agreement may be changed, waived, modified or varied in any manner
whatsoever except in accordance with the requirements specified in Section 7.1
of the Collateral Trust Agreement. No failure on the part of the
Collateral Trustee or any other Secured Party to exercise, and no delay in
exercising any right hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right.
10.3 Obligations
Absolute. The
obligations of each Assignor hereunder shall remain in full force and effect
without regard to, and shall not be impaired by, (a) any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or the like
of such Assignor; (b) any exercise or non-exercise, or any waiver of, any right,
remedy, power or privilege under or in respect of this Agreement or any other
Secured Debt Document; or (c) any amendment to or modification of any Secured
Debt Document or any security for any of the Secured Debt Obligations; whether
or not such Assignor shall have notice or knowledge of any of the
foregoing.
10.4 Successors
and Assigns. This
Agreement shall create a continuing security interest in the Collateral and
shall (i) remain in full force and effect, subject to release and/or termination
as set forth in Section 10.8, (ii) be binding upon each Assignor, its successors
and assigns; provided,
however,
that no Assignor shall assign any of its rights or obligations hereunder, and
(iii) inure, together with the rights and remedies of the Collateral
Trustee
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hereunder, to the benefit of the Collateral Trustee, the other Secured Parties and their respective successors, transferees and assigns. All agreements, statements, representations and warranties made by each Assignor herein or in any certificate or other instrument delivered by such Assignor or on its behalf under this Agreement shall be considered to have been relied upon by the Secured Parties and shall survive the execution and delivery of this Agreement and the other Secured Debt Documents regardless of any investigation made by the Secured Parties or on their behalf.
10.5 Headings
Descriptive. The
headings of the several sections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
10.6 GOVERNING
LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL. (a)
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE OR
PERMIT THE LAWS OF ANY OTHER JURISDICTION TO APPLY.
(b) All
judicial proceedings brought against any party hereto arising out of or relating
to this Agreement or any of the other Security Documents may be brought in any
state or federal court of competent jurisdiction in the State, County and City
of New York. By executing and delivering this Agreement, each
Pledgor, for itself and in connection with its properties,
irrevocably:
(A) accepts
generally and unconditionally the nonexclusive jurisdiction and venue of such
courts;
(B) waives
any defense of forum non conveniens;
(C) agrees
that service of all process in any such proceeding in any such court may be made
by registered or certified mail, return receipt requested, to such party at its
address provided in accordance with Section 7.7 of the Collateral Trust
Agreement;
(D) agrees
that service as provided in clause (C) above is sufficient to confer personal
jurisdiction over such party in any such proceeding in any such court and
otherwise constitutes effective and binding service in every respect;
and
(E) agrees
that each party hereto retains the right to serve process in any other manner
permitted by law or to bring proceedings against any party in the courts of any
other jurisdiction.
(c) Each
party to this Agreement waives its rights to a jury trial of any claim or cause
of action based upon or arising under this Agreement or any of the other
Security Documents or any dealings between them relating to the subject matter
of this Agreement or the intents and purposes of the other Security
Documents. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and that
relate to the
-41-
subject matter of this Agreement and the other Security Documents, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. Each party to this Agreement acknowledges that this waiver is a material inducement to enter into a business relationship, that each party hereto has already relied on this waiver in entering into this Agreement, and that each party hereto will continue to rely on this waiver in its related future dealings. Each party hereto further warrants and represents that it has reviewed this waiver with its legal counsel and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. This waiver is irrevocable, meaning that it may not be modified either orally or in writing (other than by a mutual written waiver specifically referring to this Section 10.6 and executed by each of the parties hereto), and this waiver will apply to any subsequent amendments, renewals, supplements or modifications of or to this Agreement or any of the other Security Documents or to any other documents or agreements relating thereto. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.
10.7 Assignor’s
Duties. It
is expressly agreed, anything herein contained to the contrary notwithstanding,
that each Assignor shall remain liable to perform all of the obligations, if
any, assumed by it with respect to the Collateral and the Collateral Trustee
shall not have any obligations or liabilities with respect to any
Collateral by reason of or arising out of this Agreement, nor shall the
Collateral Trustee be required or obligated in any manner to perform or fulfill
any of the obligations of any Assignor under or with respect to any
Collateral.
10.8 Termination;
Release. (a) After
the occurrence of the Discharge of Priority Lien Obligations and the discharge
of all other Secured Debt Obligations, this Agreement shall terminate (provided
that all indemnities set forth herein including, without limitation in Section
8.1, shall survive such termination)
and the Collateral Trustee, at the request and expense of the respective
Assignor, will (without recourse and without any representation or warranty)
promptly execute and deliver to such Assignor a proper instrument or instruments
(including UCC termination statements on form UCC-3) acknowledging the
satisfaction and termination of this Agreement, and will duly assign,
transfer and deliver to such Assignor (without recourse and without any
representation or warranty) such of the Collateral as may be in the possession
of the Collateral Trustee and as has not theretofore been sold or otherwise
applied or released pursuant to Article VII of this
Agreement.
(b) In
the event that the Collateral Trustee’s Liens on any portion of the Collateral
have been released pursuant to Section 4.1(a) of the Collateral Trust Agreement,
the Collateral Trustee, at the request and expense of such Assignor, will duly
and promptly release from the security interest created hereby (and will execute
and deliver such documentation, including termination or partial release
statements and the like in connection therewith) and assign, transfer and
deliver to such Assignor (without recourse and without any representation or
warranty) such of the Collateral as is then being (or has been) so sold or
otherwise disposed of, or released, and as may be in the possession of the
Collateral Trustee and has not theretofore been released pursuant to this
Agreement.
(c) At
any time that an Assignor desires that the Collateral Trustee take any action to
acknowledge or give effect to any release of Collateral pursuant to the
foregoing Section 10.8(a) or (b), such Assignor shall deliver to the Collateral
Trustee a certificate signed by a principal executive officer of such Assignor
stating that the release of the respective Collateral
-42-
is permitted pursuant to such Section 10.8(a) or (b). If reasonably requested by the Collateral Trustee (although the Collateral Trustee shall have no obligation to make such request), the relevant Assignor shall furnish appropriate legal opinions (from counsel, reasonably acceptable to the Collateral Trustee) to the effect set forth in this Section 10.8(c).
(d) The
Collateral Trustee shall have no liability whatsoever to any other Secured Party
as the result of any release of Collateral by it in accordance with (or which
the Collateral Trustee in good faith believes to be in accordance with) this
Section 10.8.
10.9 Counterparts. This
Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Issuer and the
Collateral Trustee. Delivery of an executed counterpart of a
signature page to this Agreement, or of any amendment or waiver of any provision
of this Agreement or of any joinder agreement, by telecopier or in “pdf” or
similar format by electronic mail, shall be effective as delivery of an original
executed counterpart thereof.
10.10 Severability. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.11 The
Collateral Trustee and the other Secured Parties. The
Collateral Trustee will hold in accordance with this Agreement all items of the
Collateral at any time received under this Agreement. It is expressly
understood and agreed that the obligations of the Collateral Trustee as holder
of the Collateral and interests therein and with respect to the disposition
thereof, and otherwise under this Agreement, are only those expressly set forth
in this Agreement, in the Collateral Trust Agreement and in Articles Seven and
Eleven of the Indenture, subject to the terms of the Intercreditor
Agreement. The Collateral Trustee shall act hereunder on the terms
and conditions set forth herein, in the Collateral Trust Agreement and in
Articles Seven and Eleven of the Indenture, subject to the terms of the
Intercreditor Agreement.
10.12 Additional
Assignors. It
is understood and agreed that any Person that desires to become an Assignor
hereunder, or is required to execute a counterpart of this Agreement after the
date hereof pursuant to the requirements of the Indenture or any other Secured
Debt Document, shall become an Assignor hereunder by (x) executing a counterpart
hereof and delivering same to the Collateral Trustee or by executing a joinder
agreement and delivering same to the Collateral Trustee, in each case as may be
requested by (and in form and substance satisfactory to) the Collateral Trustee,
(y) delivering a Perfection Certificate Supplement with respect to such
additional Assignor on such date and (z) taking all actions as specified in this
Agreement as would have been taken by such Assignor had it been an original
party to this Agreement, in each case with all documents required above to be
delivered to the Collateral Trustee and with all documents and actions required
above to be taken to the reasonable satisfaction of the Collateral
Trustee. Upon the execution and delivery, or authentication, by any
Person of a counterpart hereof or a joinder agreement, such Person shall
-43-
be referred to as an “Additional Assignor” and shall be and become a Assignor hereunder, and each reference in this Agreement and the other Secured Debt Documents to “Assignor” shall also mean and be a reference to such Additional Assignor, and each reference in this Agreement and the other Secured Debt Documents to “Collateral” shall also mean and be a reference to the Collateral of such Additional Assignor.
10.13 Intellectual
Property Security Agreements. In
the event of any conflict between the terms of this Agreement and the
Intellectual Property Security Agreements, the terms of this Agreement shall
govern and control.
10.14 Intercreditor
Agreement. Notwithstanding
anything herein to the contrary, the liens and security interests granted to the
Collateral Trustee pursuant to this Agreement in any Collateral and the exercise
of any right or remedy by the Collateral Trustee with respect to any Collateral
hereunder are subject to the provisions of the Intercreditor Agreement, dated as
of September 30, 2009 (as amended, restated, supplemented or otherwise modified
from time to time, the “Intercreditor
Agreement”), among the
Issuer, the other Assignors from time to time party thereto, the ABL Collateral
Trustee and the Collateral Trustee, and certain other Persons party or that may
become party thereto from time to time. In the event of any conflict
between the terms of the Intercreditor Agreement and this Agreement, the terms
of the Intercreditor Agreement shall govern and control.
[Remainder
of this page intentionally left blank; signature page follows]
-44-
ACCO
BRANDS CORPORATION, as an Assignor
|
|||
|
By:
|
/s/Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Senior Vice
President, Secretary and General Counsel |
|||
ACCO
BRANDS USA LLC, as an Assignor
|
|||
|
By:
|
/s/Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Vice President and Secretary | |||
DAY-TIMERS
INC., as an Assignor
|
|||
|
By:
|
/s/Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Vice President and Secretary | |||
GENERAL
BINDING CORPORATION, as an Assignor
|
|||
|
By:
|
/s/Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Vice President and Secretary | |||
ACCO
INTERNATIONAL HOLDINGS, INC., as an Assignor
|
|||
|
By:
|
/s/Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Vice President and Secretary | |||
[SIGNATURE
PAGE TO NOTE SECURITY AGREEMENT]
GBC
INTERNATIONAL, INC., as an Assignor
|
|||
|
By:
|
/s/Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Vice President and Secretary | |||
ACCO
BRANDS INTERNATIONAL, INC., as an Assignor
|
|||
|
By:
|
/s/Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Vice President and Secretary | |||
ACCO
EUROPE FINANCE HOLDINGS, LLC, as an Assignor
|
|||
|
By:
|
/s/Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Vice President and Secretary | |||
ACCO
EUROPE INTERNATIONAL HOLDINGS LLC, as an Assignor
|
|||
|
By:
|
/s/Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Vice President and Secretary | |||
XXXXX
INTERNATIONAL, INC., as an Assignor
|
|||
|
By:
|
/s/Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Vice President and Secretary | |||
[SIGNATURE PAGE TO NOTE SECURITY AGREEMENT]
POLYBLEND
CORPORATION, as an Assignor
|
|||
|
By:
|
/s/Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Vice President and Secretary | |||
SWINGLINE,
INC., as an Assignor
|
|||
|
By:
|
/s/Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: Vice President and Secretary | |||
[SIGNATURE PAGE TO NOTE SECURITY AGREEMENT]
Accepted and Agreed
to:
U.S. BANK NATIONAL
ASSOCIATION, as
Collateral Trustee
|
|||||
By: |
/s/Xxxxx
Xxxxxxx
|
|
|||
Name:
Xxxxx
Xxxxxxx
|
|
||||
Title: Vice
President
|
|
[SIGNATURE PAGE TO NOTE SECURITY AGREEMENT]
SCHEDULE
2.1(a)
to
SECURITY
AGREEMENT
CERTAIN
MATERIAL U.S. INTELLECTUAL PROPERTY
SCHEDULE
2.1(b)
to
SECURITY
AGREEMENT
CERTAIN
OTHER U.S. INTELLECTUAL PROPERTY
SCHEDULE
2.1(c)
to
SECURITY
AGREEMENT
CERTAIN
MATERIAL FOREIGN INTELLECTUAL PROPERTY
SCHEDULE
4.1(d)
to
SECURITY
AGREEMENT
CERTAIN
INTELLECTUAL PROPERTY MATTERS
SCHEDULE
4.1(e)
to
SECURITY
AGREEMENT
CERTAIN
INTELLECTUAL PROPERTY MATTERS
SCHEDULE
4.1(i)
to
SECURITY
AGREEMENT
CERTAIN
INTELLECTUAL PROPERTY MATTERS
SCHEDULE
4.1(j)
to
SECURITY
AGREEMENT
CERTAIN
INTELLECTUAL PROPERTY MATTERS
SCHEDULE
5.1(d)
to
SECURITY
AGREEMENT
CERTAIN INTELLECTUAL PROPERTY MATTERS
SCHEDULE
5.1(e)
to
SECURITY
AGREEMENT
CERTAIN INTELLECTUAL PROPERTY MATTERS
SCHEDULE
5.1(j)
to
SECURITY
AGREEMENT
CERTAIN
INTELLECTUAL PROPERTY MATTERS
SCHEDULE
5.1(k)
to
SECURITY
AGREEMENT
CERTAIN
INTELLECTUAL PROPERTY MATTERS
ANNEX A
to
SECURITY
AGREEMENT
TRADEMARK
SECURITY AGREEMENT
This
TRADEMARK SECURITY AGREEMENT, dated as of September 30, 2009, (the “Trademark
Security Agreement”), made by each of the undersigned assignors
(individually, an “Assignor”,
and, collectively, the “Assignors”)
in favor of U.S. Bank National Association, as Collateral Trustee for the
benefit of the Secured Parties (in such capacity, the “Assignee”
or the “Collateral
Trustee”).
SECTION
1. Defined
Terms. Capitalized terms used but not otherwise defined herein
shall have the meanings given to them in the Security Agreement. For
purposes of this Trademark Security Agreement, the term “Marks”
shall mean (i) all United States and foreign trademarks, trade names, corporate
names, company names, business names, fictitious business names, service marks,
certification marks, collective marks, trade dress, slogans, logos, other source
or business identifiers, designs and general intangibles of a like nature, and
with respect to any and all of the foregoing: (i) all registrations
and applications for any of the foregoing, (ii) all extensions or renewals of
any of the foregoing, (iii) all common-law rights related thereto, (iv) all
corresponding rights thereto throughout the world, (v) all of the goodwill of
the business connected with the use of and symbolized by the foregoing, (vi) the
right to xxx for past, present and future infringement, dilution or other
violation of any of the foregoing or for any injury to goodwill, and (vii) all
Proceeds of the foregoing, including licenses, royalties, income, fees,
payments, claims, damages and proceeds of suit now or hereafter due and/or
payable with respect thereto.
SECTION
2. Grant
of Security Interest in Xxxx Collateral. As security for the
prompt and complete payment and performance when due of all of its Secured Debt
Obligations, each Assignor does hereby pledge and grant to the Assignee, for the
benefit of the Secured Parties, a continuing security interest in all of the
right, title and interest of such Assignor in, to and under all of the following
personal and fixture property (and all rights therein) of such Assignor, or in
which or to which such Assignor has any rights, in each case now existing or
hereafter from time to time acquired (collectively, the “Pledged
Trademark Collateral”):
(a) all
Marks of such Assignor, including, without limitation, the registered and
applied-for Marks of such Assignor listed on Schedule
I attached hereto; and
ANNEX A
Page
2
(b) to
the extent not included in clause (a), all Proceeds and products of any and all
of the foregoing.
Notwithstanding
anything to the contrary contained in clauses (a) and (b) above, the security
interest created by this Trademark Security Agreement shall not extend to any
Xxxx application filed in the United States Patent and Trademark Office on the
basis of the Assignor’s intent to use such Xxxx xxxxx to the filing of a
statement of use or amendment to allege use of such Xxxx, if the grant of the
security interest therein as contemplated by the Security Agreement would result
in the unenforceability or invalidity of such Xxxx application or the
registration that issues therefrom; provided,
that to the extent such application is excluded from the Collateral, upon the
submission of evidence of use of such Xxxx to the United States Patent and
Trademark Office, such Xxxx application shall automatically be included in the
Collateral, without further action on any party’s part, and other Excluded
Assets.
SECTION
3. Security
Agreement. The lien and security interest granted to the
Assignee, pursuant to this Trademark Security Agreement, is granted in
conjunction with the lien and security interest granted to the Assignee pursuant
to the Security Agreement and Assignors hereby acknowledge and affirm that the
rights and remedies of the Assignee with respect to the lien and security
interest in the Marks made and granted hereby are more fully set forth in the
Security Agreement, which are subject to the terms of and provisions of the
Intercreditor Agreement as described therein. In the event of any
conflict between the terms of the Security Agreement and this Trademark Security
Agreement, the terms of the Security Agreement shall govern and
control.
SECTION
4. Recordation. Each
Assignor hereby authorizes and requests that the Commissioner of Patents and
Trademarks record this Trademark Security Agreement.
SECTION
5. Termination. After
the occurrence of the Discharge of Priority Lien Obligations and the discharge
of the other Secured Debt Obligations, this Trademark Security Agreement shall
terminate and the Collateral Trustee, at the request and expense of the
respective Assignor, will (without recourse and without any representation or
warranty) promptly execute and deliver to such Assignor a proper instrument or
instruments acknowledging the satisfaction and termination of this Agreement,
and will duly assign, transfer and deliver to such Assignor (without recourse
and without any representation or warranty) such of the Pledged Trademark
Collateral as may be in the possession of the Collateral Trustee and as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement.
SECTION
6. GOVERNING
LAW. THIS TRADEMARK SECURITY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE OR PERMIT THE LAWS
OF ANY OTHER JURISDICTION TO APPLY.
SECTION
7. Intercreditor
Agreement Governs. Notwithstanding anything herein to the
contrary, the liens and security interests granted to the Assignee, pursuant to
this
ANNEX
A
Page
3
Trademark
Security Agreement are subject to the provisions of the Intercreditor
Agreement. In the event of any conflict between the terms of the
Intercreditor Agreement and this Trademark Security Agreement, the terms of the
Intercreditor Agreement shall govern and control.
SECTION
8. Counterparts. This
Trademark Security Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which when
so executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Assignors and the
Assignee. Delivery of an executed counterpart of a signature page to
this Trademark Security Agreement, or of any amendment or waiver of any
provision of this Trademark Security Agreement, by telecopier or in “pdf” or
similar format by electronic mail, shall be effective as delivery of an original
executed counterpart thereof.
[Remainder
of This Page Intentionally Left Blank.]
ANNEX
A
Page
4
ACCO
BRANDS CORPORATION, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
BRANDS USA LLC, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
DAY-TIMERS
INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
GENERAL
BINDING CORPORATION, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
INTERNATIONAL HOLDINGS, INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ANNEX
A
Page
5
GBC
INTERNATIONAL, INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
BRANDS INTERNATIONAL, INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
EUROPE FINANCE HOLDINGS, LLC, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
EUROPE INTERNATIONAL HOLDINGS LLC, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
XXXXX
INTERNATIONAL, INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ANNEX
A
Page
6
POLYBLEND
CORPORATION, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
SWINGLINE,
INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
Accepted and Agreed
to:
U.S. BANK NATIONAL
ASSOCIATION, as
Assignee Collateral
Trustee
|
|||||
By: |
|
|
|||
Name:
|
|
||||
Title:
|
|
STATE OF
______________ )
) ss.:
COUNTY OF
____________)
On this
____ day of _________, ____, before me personally came ________ ________________
who, being by me duly sworn, did state as follows: that [s]he is
______________ of [Name of Grantor], that [s]he is authorized to execute the
foregoing Grant on behalf of said ____________ and that [s]he did so by
authority of the [Board of Directors] of said ____________.
_________________________
Notary
Public
STATE OF
______________ )
) ss:
COUNTY OF
____________)
On this
____ day of _________, ____, before me personally came ________
_____________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of [Name of Collateral
Trustee], that [s]he is authorized to execute the foregoing Grant on behalf of
said ____________ and that [s]he did so by authority of the Board of Directors
of said _____________.
____________________________
Notary
Public
SCHEDULE
A
SCHEDULE
I
to
TRADEMARK
SECURITY AGREEMENT
ANNEX B
to
SECURITY
AGREEMENT
PATENT
SECURITY AGREEMENT
This
PATENT SECURITY AGREEMENT, dated as of September 30, 2009, (the “Patent
Security Agreement”), made by each of the undersigned assignors
(individually, an “Assignor”,
and, collectively, the “Assignors”)
in favor of U.S. Bank National Association, as Collateral Trustee for the
benefit of the Secured Parties (in such capacity, the “Assignee”
or the “Collateral
Trustee”).
SECTION
1. Defined
Terms. Capitalized terms used but not otherwise defined herein
shall have the meanings given to them in the Security Agreement. For
purposes of this Patent Security Agreement, the term “Patents”
shall mean all United States and foreign patents, certificates of invention,
industrial designs or similar industrial property rights, and applications for
any of the foregoing, including, but not limited to: (i) all
reissues, divisions, continuations (including, but not limited to,
continuations-in-part and improvements thereof), extensions, renewals, and
reexaminations thereof, (ii) inventions described and claimed therein, (iii) all
rights corresponding thereto throughout the world, (iv) all inventions and
improvements described therein, (v) all rights to xxx for past, present and
future infringements or other violations thereof, (vi) all licenses, claims,
damages, and proceeds of suit arising therefrom, and (vii) all Proceeds of the
foregoing, including licenses, royalties, income, fees, payments, claims,
damages and proceeds of suit now or hereafter due and/or payable with respect
thereto.
SECTION
2. Grant
of Security Interest in Patent Collateral. As security for the
prompt and complete payment and performance when due of all of its Secured Debt
Obligations, each Assignor does hereby pledge and grant to the Assignee, for the
benefit of the Secured Parties, a continuing security interest in all of the
right, title and interest of such Assignor in, to and under all of the following
personal and fixture property (and all rights therein) of such Assignor, or in
which or to which such Assignor has any rights, in each case now existing or
hereafter from time to time acquired (collectively, the “Pledged
Patent Collateral”):
(a) all
Patents of such Assignor, including, without limitation, the registered and
applied-for Patents of such Assignor listed on Schedule
I attached hereto; and
ANNEX
B
Page
2
(b) to
the extent not included in clause (a), all Proceeds and products of any and all
of the foregoing.
Notwithstanding
anything to the contrary contained in clauses (a) and (b) above, the security
interest created by this Patent Security Agreement shall not extend to any
Excluded Assets.
SECTION
3. Security
Agreement. The lien and security interest granted to the
Assignee, pursuant to this Patent Security Agreement, is granted in conjunction
with the lien and security interest granted to the Assignee pursuant to the
Security Agreement and Assignors hereby acknowledge and affirm that the rights
and remedies of the Assignee with respect to the lien and security interest in
the Patents made and granted hereby are more fully set forth in the Security
Agreement, which are subject to the terms of and provisions of the Intercreditor
Agreement as described therein. In the event of any conflict between
the terms of the Security Agreement and this Patent Security Agreement, the
terms of the Security Agreement shall govern and control.
SECTION
4. Recordation. Each
Assignor hereby authorizes and requests that the Commissioner of Patents and
Trademarks record this Patent Security Agreement.
SECTION
5. Termination. After
the occurrence of the Discharge of Priority Lien Obligations and the discharge
of the other Secured Debt Obligations, this Patent Security Agreement shall
terminate and the Collateral Trustee, at the request and expense of the
respective Assignor, will (without recourse and without any representation or
warranty) promptly execute and deliver to such Assignor a proper instrument or
instruments acknowledging the satisfaction and termination of this Agreement,
and will duly assign, transfer and deliver to such Assignor (without recourse
and without any representation or warranty) such of the Pledged Trademark
Collateral as may be in the possession of the Collateral Trustee and as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement.
SECTION
6. GOVERNING
LAW. THIS PATENT SECURITY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE OR PERMIT THE LAWS
OF ANY OTHER JURISDICTION TO APPLY.
SECTION
7. Intercreditor
Agreement Governs. Notwithstanding anything herein to the
contrary, the liens and security interests granted to the Assignee, pursuant to
this Patent Security Agreement are subject to the provisions of the
Intercreditor Agreement. In the event of any conflict between the
terms of the Intercreditor Agreement and this Patent Security Agreement, the
terms of the Intercreditor Agreement shall govern and control.
SECTION
8. Counterparts. This
Patent Security Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall
together
ANNEX
B
Page
3
constitute
one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Assignors and the
Assignee. Delivery of an executed counterpart of a signature page to
this Patent Security Agreement, or of any amendment or waiver of any provision
of this Patent Security Agreement, by telecopier or in “pdf” or similar format
by electronic mail, shall be effective as delivery of an original executed
counterpart thereof.
[Remainder
of This Page Intentionally Left Blank.]
ANNEX
B
Page
3
ACCO
BRANDS CORPORATION, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
BRANDS USA LLC, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
DAY-TIMERS
INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
GENERAL
BINDING CORPORATION, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
INTERNATIONAL HOLDINGS, INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ANNEX
H
GBC
INTERNATIONAL, INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
BRANDS INTERNATIONAL, INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
EUROPE FINANCE HOLDINGS, LLC, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
EUROPE INTERNATIONAL HOLDINGS LLC, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
XXXXX
INTERNATIONAL, INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ANNEX
H
POLYBLEND
CORPORATION, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
SWINGLINE,
INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
Accepted and Agreed
to:
U.S. BANK NATIONAL
ASSOCIATION, as
Asignee and Collateral
Trustee
|
|||||
By: |
|
|
|||
Name:
|
|
||||
Title:
|
|
STATE OF
______________ )
) ss:
COUNTY
OF_____________)
On this
____ day of _________, ____, before me personally came ________ ________________
who, being by me duly sworn, did state as follows: that [s]he is
______________ of [Name of Grantor], that [s]he is authorized to execute the
foregoing Grant on behalf of said ____________ and that [s]he did so by
authority of the Board of Directors of said ____________.
_________________________
Notary
Public
STATE OF
______________)
) ss:
COUNTY OF
____________)
On this
____ day of _________, ____, before me personally came ________
_____________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of [Name of Collateral
Trustee], that [s]he is authorized to execute the foregoing Grant on behalf of
said ____________ and that [s]he did so by authority of the Board of Directors
of said _____________.
____________________________
Notary
Public
SCHEDULE
A
SCHEDULE
I
to
PATENT
SECURITY AGREEMENT
ANNEX C
to
SECURITY
AGREEMENT
COPYRIGHT
SECURITY AGREEMENT
This
COPYRIGHT SECURITY AGREEMENT, dated as of September 30, 2009, (the “Copyright
Security Agreement”), made by each of the undersigned assignors
(individually, an “Assignor”,
and, collectively, the “Assignors”)
in favor of U.S. Bank National Association, as Collateral Trustee for the
benefit of the Secured Parties (in such capacity, the “Assignee”
or the “Collateral
Trustee”).
SECTION
1. Defined
Terms. Capitalized terms used but not otherwise defined herein
shall have the meanings given to them in the Security Agreement. For
purposes of this Copyright Security Agreement, the term “Copyrights”
shall mean all United States or foreign copyrights (including community
designs), including copyrights in software and databases, and all Mask Works (as
defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or
not registered and whether published or unpublished, and, with respect to any
and all of the foregoing: (i) all registrations and applications
therefor (whether in the United States Copyright Office or any foreign
equivalent office), (ii) all extensions and renewals thereof, (iii) all rights
corresponding thereto throughout the world, (iv) all rights to xxx for past,
present and future infringements thereof and (v) all Proceeds of the foregoing,
including licenses, royalties, income, fees, payments, claims, damages and
proceeds of suit now or hereafter due and/or payable with respect
thereto.
SECTION
2. Grant
of Security Interest in Copyright Collateral. As security for
the prompt and complete payment and performance when due of all of its Secured
Debt Obligations, each Assignor does hereby pledge and grant to the Assignee,
for the benefit of the Secured Parties, a continuing security interest in all of
the right, title and interest of such Assignor in, to and under all of the
following personal and fixture property (and all rights therein) of such
Assignor, or in which or to which such Assignor has any rights, in each case now
existing or hereafter from time to time acquired (collectively, the “Pledged
Copyright Collateral”):
(a) all
Copyrights of such Assignor, including, without limitation, the registered and
applied-for Copyrights of such Assignor listed on Schedule
I attached hereto; and
ANNEX
C
Page
2
(b) to
the extent not included in clause (a), all Proceeds and products of any and all
of the foregoing.
Notwithstanding
anything to the contrary contained in clauses (a) and (b) above, the security
interest created by this Copyright Security Agreement shall not extend to any
Excluded Assets.
SECTION
3. Security
Agreement. The lien and security interest granted to the
Assignee, pursuant to this Copyright Security Agreement, is granted in
conjunction with the lien and security interest granted to the Assignee pursuant
to the Security Agreement and Assignors hereby acknowledge and affirm that the
rights and remedies of the Assignee with respect to the lien and security
interest in the Copyrights made and granted hereby are more fully set forth in
the Security Agreement, which are subject to the terms of and provisions of the
Intercreditor Agreement as described therein. In the event of any
conflict between the terms of the Security Agreement and this Copyright Security
Agreement, the terms of the Security Agreement shall govern and
control.
SECTION
4. Recordation. Each
Assignor hereby authorizes and requests that the United States Copyright Office
record this Copyright Security Agreement.
SECTION
5. Termination. After
the occurrence of the Discharge of Priority Lien Obligations and the discharge
of the other Secured Debt Obligations, this Copyright Security Agreement shall
terminate and the Collateral Trustee, at the request and expense of the
respective Assignor, will (without recourse and without any representation or
warranty) promptly execute and deliver to such Assignor a proper instrument or
instruments acknowledging the satisfaction and termination of this Agreement,
and will duly assign, transfer and deliver to such Assignor (without recourse
and without any representation or warranty) such of the Pledged Trademark
Collateral as may be in the possession of the Collateral Trustee and as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement.
SECTION
6. GOVERNING
LAW. THIS COPYRIGHT SECURITY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE OR PERMIT THE LAWS
OF ANY OTHER JURISDICTION TO APPLY.
SECTION
7. Intercreditor
Agreement Governs. Notwithstanding anything herein to the
contrary, the liens and security interests granted to the Assignee, pursuant to
this Copyright Security Agreement are subject to the provisions of the
Intercreditor Agreement. In the event of any conflict between the
terms of the Intercreditor Agreement and this Copyright Security Agreement, the
terms of the Intercreditor Agreement shall govern and control.
SECTION
8. Counterparts. This
Copyright Security Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which when
so executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts
executed by all the
ANNEX C
Page
3
parties hereto shall be lodged with the Assignors and the Assignee. Delivery of an executed counterpart of a signature page to this Copyright Security Agreement, or of any amendment or waiver of any provision of this Copyright Security Agreement, by telecopier or in “pdf” or similar format by electronic mail, shall be effective as delivery of an original executed counterpart thereof.
[Remainder
of This Page Intentionally Left Blank.]
ANNEX C
Page
4
ACCO
BRANDS CORPORATION, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
BRANDS USA LLC, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
DAY-TIMERS
INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
GENERAL
BINDING CORPORATION, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
INTERNATIONAL HOLDINGS, INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ANNEX C
Page
5
GBC
INTERNATIONAL, INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
BRANDS INTERNATIONAL, INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
EUROPE FINANCE HOLDINGS, LLC, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ACCO
EUROPE INTERNATIONAL HOLDINGS LLC, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
XXXXX
INTERNATIONAL, INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
ANNEX C
Page
6
POLYBLEND
CORPORATION, as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
SWINGLINE,
INC., as an Assignor
|
|||
|
By:
|
||
Name: | |||
Title: | |||
Accepted and Agreed
to:
U.S. BANK NATIONAL
ASSOCIATION, as
Asignee and Collateral
Trustee
|
|||||
By: |
|
|
|||
Name:
|
|
||||
Title:
|
|
STATE
OF
)
) ss:
COUNTY
OF
)
On this
__ day of _________, ____, before me personally came ___________ ______________,
who being duly sworn, did depose and say that [s]he is ___________________ of
[Name of Grantor], that [s]he is authorized to execute the foregoing Grant on
behalf of said corporation and that [s]he did so by authority of the Board of
Directors of said corporation.
____________________________
Notary
Public
STATE OF
______________ )
) ss.:
COUNTY
OF____________ )
On this
____ day of _________, ____, before me personally came ________
__________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of [Name of Collateral
Trustee], that [s]he is authorized to execute the foregoing Grant on behalf of
said __________ and that [s]he did so by authority of the Board of Directors of
said _____________.
____________________________
Notary
Public
SCHEDULE
I
to
COPYRIGHT
SECURITY AGREEMENT
TABLE
OF CONTENTS
Page
ARTICLE
I SECURITY INTERESTS
|
2
|
1.1
Grant of Security Interests
|
2
|
1.2
Power of Attorney
|
4
|
ARTICLE
II GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
|
6
|
2.1
Necessary Filings
|
6
|
2.2
No Liens
|
7
|
2.3
Other Financing Statements
|
7
|
2.4
Chief Executive Office, Record Locations
|
7
|
2.5
Location of Inventory and Equipment
|
8
|
2.6
Legal Names; Type of Organization (and Whether a Registered Organization
and/or a Transmitting Utility); Jurisdiction of Organization; Location;
Organizational Identification Numbers; Federal Employer Identification
Number; Changes Thereto; etc.
|
8
|
2.7
Trade Names; Etc.
|
9
|
2.8
Certain Significant Transactions.
|
9
|
2.9
Non-UCC Property
|
9
|
2.10
As-Extracted Collateral; Timber-to-be-Cut
|
10
|
2.11
Collateral in the Possession of a Warehouseman, Bailee or
Agent
|
10
|
2.12
Inventory and Equipment
|
10
|
2.13
Perfection Certificate
|
11
|
2.14
Recourse
|
11
|
ARTICLE
III SPECIAL PROVISIONS CONCERNING ACCOUNTS; CONTRACT RIGHTS; INSTRUMENTS;
CHATTEL PAPER AND CERTAIN OTHER COLLATERAL
|
11
|
3.1
Additional Representations and Warranties
|
11
|
3.2
Maintenance of Records
|
11
|
3.3
Direction to Account Debtors; Contracting Parties; etc.
|
12
|
3.4
Modification of Terms; etc.
|
13
|
3.5
Collection
|
13
|
3.6
Instruments
|
13
|
3.7
Assignors Remain Liable Under Accounts
|
14
|
3.8
Assignors Remain Liable Under Contracts
|
14
|
3.9
Deposit Accounts; Etc.
|
14
|
3.10
Letter-of-Credit Rights
|
15
|
3.11
Commercial Tort Claims
|
15
|
3.12
Chattel Paper
|
16
|
3.13
Further Actions
|
16
|
16
|
|
4.1
Additional Representations and Warranties
|
16
|
4.2
Licenses and Assignments
|
18
|
4.3
Infringements
|
18
|
4.4
Preservation of Marks and Domain Names
|
19
|
4.5
Maintenance of Registration
|
19
|
4.6
Notice of Proceedings
|
20
|
4.7
Prosecution of Xxxx Applications
|
20
|
4.8
Future Acquired Marks and Domain Names
|
20
|
4.9
Remedies
|
20
|
ARTICLE
V SPECIAL PROVISIONS CONCERNING PATENTS, COPYRIGHTS AND TRADE
SECRETS
|
21
|
5.1
Additional Representations and Warranties
|
21
|
5.2
Licenses and Assignments
|
22
|
5.3
Infringements
|
23
|
5.4
Maintenance of Patents or Copyrights
|
23
|
5.5
Notice of Proceedings
|
24
|
5.6
Prosecution of Patent Applications
|
24
|
5.7
Further Acquired Patents, Copyrights and other Intellectual
Property
|
24
|
5.8
Remedies
|
25
|
ARTICLE
VI PROVISIONS CONCERNING ALL COLLATERAL
|
26
|
6.1
Protection of Collateral Trustee’s Security
|
26
|
6.2
Warehouse Receipts Non-Negotiable
|
26
|
6.3
Additional Information.
|
26
|
6.4
Further Actions
|
27
|
6.5
Financing Statements
|
27
|
6.6
Intellectual Property Filings
|
27
|
ARTICLE
VII REMEDIES UPON OCCURRENCE OF AN EVENT OF DEFAULT
|
28
|
7.1
Remedies; Obtaining the Collateral Upon Default
|
28
|
7.2
Remedies; Disposition of the Collateral
|
29
|
7.3
Waiver of Claims
|
30
|
7.4
Application of Proceeds
|
31
|
7.5
Remedies Cumulative
|
31
|
7.6
Discontinuance of Proceedings
|
31
|
ARTICLE
VIII INDEMNITY
|
32
|
8.1
Indemnity
|
32
|
8.2
Indemnity Obligations Secured by Collateral; Survival
|
33
|
ARTICLE
IX DEFINITIONS
|
33
|
ARTICLE
X MISCELLANEOUS
|
40
|
10.1
Notices
|
40
|
10.2
Waiver; Amendment
|
40
|
10.3
Obligations Absolute
|
40
|
10.4
Successors and Assigns
|
40
|
10.5
Headings Descriptive
|
41
|
10.6 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL.
|
41
|
10.7
Assignor’s Duties
|
42
|
10.8
Termination; Release
|
42
|
10.9
Counterparts
|
43
|
10.10
Severability
|
43
|
10.11
The Collateral Trustee and the other Secured Parties
|
43
|
10.12
Additional Assignors
|
43
|
10.13
Intellectual Property Security Agreements
|
44
|
10.14
Intercreditor Agreement
|
44
|
SCHEDULE
2.1(a)
|
Certain
Material U.S. Intellectual Property
|
SCHEDULE
2.1(b)
|
Certain
Other U.S. Intellectual Property
|
SCHEDULE
2.1(c)
|
Certain
Material Foreign Intellectual
Property
|
SCHEDULE
4.1(d)
|
Certain
Intellectual Property Matters
|
SCHEDULE
4.1(e)
|
Certain
Intellectual Property Matters
|
SCHEDULE
4.1(i)
|
Certain
Intellectual Property Matters
|
SCHEDULE
4.1(j)
|
Certain
Intellectual Property Matters
|
SCHEDULE
5.1(d)
|
Certain
Intellectual Property Matters
|
SCHEDULE
5.1(e)
|
Certain
Intellectual Property Matters
|
SCHEDULE
5.1(j)
|
Certain
Intellectual Property Matters
|
SCHEDULE
5.1(k)
|
Certain
Intellectual Property Matters
|
ANNEX
A
|
Trademark
Security Agreement
|
ANNEX
B
|
Patent
Security Agreement
|
ANNEX
C
|
Copyright
Security Agreement
|
[Remainder
of this page intentionally left blank]