EXHIBIT 10.2
EXECUTION COPY
SECURITY AGREEMENT
Dated February 8, 2005
From
The Grantors referred to herein
as Grantors
to
BANK OF AMERICA, N.A.
as Administrative Agent
Del Monte Security Agreement
TABLE OF CONTENTS
SECTION PAGE
Section 1. Grant of Security.......................................... 2
Section 2. Security for Obligations................................... 7
Section 3. Grantors Remain Liable..................................... 7
Section 4. Delivery and Control of Security Collateral................ 7
Section 5. Maintaining the Account Collateral......................... 9
Section 6. Investing of Amounts in the Cash Collateral Account........ 9
Section 7. Maintaining Electronic Chattel Paper, Transferable Records
and Letter-of-Credit Rights and Giving Notice of
Commercial Tort Claims..................................... 10
Section 8. Representations and Warranties............................. 10
Section 9. Further Assurances......................................... 15
Section 10. As to Equipment and Inventory.............................. 16
Section 11. Insurance.................................................. 16
Section 12. Post-Closing Changes; Bailees; Collections on
Assigned Agreements, Receivables and Related Contracts..... 17
Section 13. As to Intellectual Property Collateral..................... 19
Section 14. Voting Rights; Dividends; Etc.............................. 20
Section 15. As to the Assigned Agreements.............................. 21
Section 16. Payments Under the Assigned Agreements..................... 21
Section 17. As to Letter-of-Credit Rights.............................. 21
Section 18. Transfers and Other Liens; Additional Shares............... 22
Section 19. Administrative Agent Appointed Attorney-in-Fact............ 22
Section 20. Administrative Agent May Perform........................... 22
Section 21. The Administrative Agent's Duties.......................... 22
Section 22. Remedies................................................... 23
Section 23. Indemnity and Expenses..................................... 25
Section 24. Amendments; Waivers; Additional Grantors; Etc.............. 26
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Section 25. Notices, Etc............................................... 27
Section 26. Continuing Security Interest; Assignments Under
the Credit Agreement....................................... 27
Section 27. Release; Termination....................................... 28
Section 28. Execution in Counterparts.................................. 28
Section 29. The Mortgages.............................................. 29
Section 30. Governing Law.............................................. 30
Schedule I - Location, Chief Executive Office, Place Where Agreements Are
Maintained, Type of Organization, Jurisdiction of Organization
and Organizational Identification Number
Schedule II - Pledged Equity and Pledged Debt
Schedule III - Locations of Equipment and Inventory
Schedule IV - Changes in Name, Location, Etc.
Schedule V - Patents, Trademarks and Trade Names, Copyrights and IP
Agreements
Schedule VI - Securities Accounts and Commodity Accounts
Schedule VII - Commercial Tort Claims
Schedule VIII - Letters of Credit
Exhibits
Exhibit A - Form of Security Agreement Supplement
Exhibit B - Form of Consent and Agreement
Exhibit C - Form of Securities Account Control Agreement
Exhibit D - Form of Commodity Account Control Agreement
Exhibit E - Form of Intellectual Property Security Agreement
Exhibit F - Form of Intellectual Property Security Agreement Supplement
Exhibit G - Form of Consent to Assignment of Letter of Credit Rights
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SECURITY AGREEMENT
SECURITY AGREEMENT dated February 8, 2005 made by DEL MONTE
CORPORATION, a Delaware corporation (the "COMPANY"), the other Persons listed on
the signature pages hereof and the Additional Grantors (as defined in Section
24) (the Company, the Persons so listed and the Additional Grantors being,
collectively, the "GRANTORS"), to BANK OF AMERICA, N.A. ("BANK OF AMERICA"), as
administrative agent (in such capacity, together with any successor
administrative agent appointed pursuant to Article IX of the Credit Agreement
(as hereinafter defined), the "ADMINISTRATIVE AGENT") for the Secured Parties
(as defined in the Credit Agreement).
PRELIMINARY STATEMENTS.
(1) The Company has entered into a Credit Agreement, dated as of
February 8, 2005 (said Agreement, as it may hereafter be amended, amended and
restated, supplemented or otherwise modified from time to time, being the
"CREDIT AGREEMENT"), with the Lenders and the Agents (each as defined therein).
(2) Pursuant to the Credit Agreement, the Grantors are entering
into this Agreement in order to grant to the Administrative Agent for the
ratable benefit of the Secured Parties a security interest in the Collateral (as
hereinafter defined).
(3) Each Grantor is the owner of the shares of stock or other
Equity Interests (the "INITIAL PLEDGED EQUITY") set forth opposite such
Grantor's name on and as otherwise described in Part I of Schedule II hereto and
issued by the Persons named therein and of the indebtedness (the "INITIAL
PLEDGED DEBT") set forth opposite such Grantor's name on and as otherwise
described in Part II of Schedule II hereto and issued by the obligors named
therein.
(4) Each Grantor has established (i) the securities accounts with
the securities intermediaries identified on Part I of Schedule VI hereto (the
"SECURITIES ACCOUNTS") and (ii) the commodities accounts with the commodity
intermediaries identified on Part II of Schedule VI hereto (the "COMMODITY
ACCOUNTS").
(5) The Company has opened a collateral deposit account (the "CASH
COLLATERAL ACCOUNT"), with Bank of America at its office in New York, New York
in the name of the Administrative Agent and under the sole control and dominion
of the Administrative Agent and subject to the terms of this Agreement.
(6) The Company is the beneficiary under certain letters of credit
as described in Schedule VIII.
(7) It is a condition precedent to the making of Loans by the
Lenders and the issuance of Letters of Credit by the L/C Issuer under the Credit
Agreement and the entry into Secured Hedge Agreements by the Hedge Banks and the
Cash Management Obligations by the Lenders from time to time that the Grantors
shall have granted the security interest contemplated by this Agreement. Each
Grantor will derive substantial direct and indirect benefit from the
transactions contemplated by the Loan Documents.
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(8) Terms defined in the Credit Agreement and not otherwise
defined in this Agreement are used in this Agreement as defined in the Credit
Agreement. Further, unless otherwise defined in this Agreement or in the Credit
Agreement, terms defined in Article 8 or 9 of the UCC (as defined below) are
used in this Agreement as such terms are defined in such Article 8 or 9. "UCC"
means the Uniform Commercial Code as in effect, from time to time, in the State
of New York; provided that, if perfection or the effect of perfection or
non-perfection or the priority of the security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, "UCC" means the Uniform Commercial Code as in effect
from time to time in such other jurisdiction for purposes of the provisions
hereof relating to such perfection, effect of perfection or non-perfection or
priority.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to make Loans and issue Letters of Credit under the Credit
Agreement and to induce the Hedge Banks to enter into Secured Hedge Agreements
and the Lenders to enter into Cash Management Obligations from time to time,
each Grantor hereby agrees with the Administrative Agent for the ratable benefit
of the Secured Parties as follows:
Section 1. Grant of Security. Each Grantor hereby grants to the
Administrative Agent, for the ratable benefit of the Secured Parties, a security
interest in, such Grantor's right, title and interest in and to the following,
in each case, as to each type of property described below, whether now owned or
hereafter acquired by such Grantor, wherever located, and whether now or
hereafter existing or arising (collectively, the "COLLATERAL"):
(a) all equipment in all of its forms, including, without
limitation, all machinery, tools, motor vehicles, vessels, aircraft,
furniture and fixtures, and all parts thereof and all accessions thereto,
including, without limitation, computer programs and supporting
information that constitute equipment within the meaning of the UCC (any
and all such property being the "EQUIPMENT");
(b) all inventory in all of its forms, including, without
limitation, (i) all raw materials, work in process, finished goods and
materials used or consumed in the manufacture, production, preparation or
shipping thereof, (ii) goods in which such Grantor has an interest in mass
or a joint or other interest or right of any kind (including, without
limitation, goods in which such Grantor has an interest or right as
consignee) and (iii) goods that are returned to or repossessed or stopped
in transit by such Grantor), and all accessions thereto and products
thereof and documents therefor, including, without limitation, computer
programs and supporting information that constitute inventory within the
meaning of the UCC (any and all such property being the "INVENTORY");
(c) all accounts (including, without limitation,
health-care-insurance receivables), chattel paper (including, without
limitation, tangible chattel paper and electronic chattel paper),
instruments (including, without limitation, promissory notes), deposit
accounts, letter-of-credit rights, general intangibles (including, without
limitation, payment 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, 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
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credit and other contracts securing or otherwise relating to the foregoing
property (any and all of such accounts, chattel paper, instruments,
deposit accounts, letter-of-credit rights, general intangibles and other
obligations, to the extent not referred to in clause (d), (e) or (f)
below, being the "RECEIVABLES," and any and all such supporting
obligations, security agreements, mortgages, Liens, leases, letters of
credit and other contracts being the "RELATED CONTRACTS");
(d) the following (the "SECURITY COLLATERAL"):
(i) the Initial Pledged Equity and the certificates, if any,
representing the Initial Pledged Equity, and all dividends,
distributions, return of capital, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the
Initial Pledged Equity and all warrants, rights or options issued
thereon or with respect thereto;
(ii) the Initial Pledged Debt and the instruments, if any,
evidencing the Initial Pledged Debt, and all interest, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of the Initial Pledged Debt;
(iii) all additional shares of stock and other Equity
Interests from time to time acquired by such Grantor in any manner,
other than the Equity Interests in any Receivables Subsidiary or any
Special Purpose Vehicle (such shares and other Equity Interests,
together with the Initial Pledged Equity, being the "PLEDGED
EQUITY"), and the certificates, if any, representing such additional
shares or other Equity Interests, and all dividends, distributions,
return of capital, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of or
in exchange for any or all of such shares or other Equity Interests
and all subscription warrants, rights or options issued thereon or
with respect thereto;
(iv) all additional indebtedness from time to time owed to
such Grantor (such indebtedness, together with the Initial Pledged
Debt, being the "PLEDGED DEBT") and the instruments, if any,
evidencing such indebtedness, and all interest, cash, instruments
and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
such indebtedness;
(v) each Securities Account, all security entitlements with
respect to all financial assets from time to time credited to any
Securities Account, and all financial assets, and all dividends,
distributions, return of capital, interest, cash, instruments and
other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
security entitlements or such financial assets and all warrants,
rights or options issued thereon or with respect thereto;
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(vi) each Commodities Account, all commodity contracts from
time to time carried in any Commodities Account, and all value,
cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of such commodity contracts; and
(vii) all other investment property (including, without
limitation, all (A) securities, whether certificated or
uncertificated, (B) security entitlements, (C) securities accounts,
(D) commodity contracts and (E) commodity accounts) in which such
Grantor has now, or acquires from time to time hereafter, any right,
title or interest in any manner, and the certificates or
instruments, if any, representing or evidencing such investment
property, and all dividends, distributions, return of capital,
interest, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such investment property and all
warrants, rights or options issued thereon or with respect thereto;
provided, that in the case of any voting Equity Interests (whether now
owned or hereafter acquired by the relevant Grantor, such Equity Interests
the "VOTING INTERESTS") in a Person organized under the laws of a
jurisdiction other than the United States or any State thereof, the number
of such Voting Interests in such Person pledged pursuant to this Agreement
shall be limited to the lesser of (x) the total number of such Voting
Interests owned by the applicable Grantor and (y) such number as, taken
together with the Voting Interests in such Person pledged by other
Grantors hereunder, shall equal 66% of the total number of such Voting
Interests issued by such Person; provided further that notwithstanding the
foregoing, the Lien granted pursuant to this Section 1 shall not in any
way extend to or include and the definition of "COLLATERAL" and "SECURITY
COLLATERAL" shall not include any Grantor's Equity Interests in Xxxxxx
Associates Limited Partnership, Xxxxxx North LLC or Xxxxxx South LLC 23 to
the extent that any Organization Document of such Person prohibits the
applicable Grantor from granting a Lien in the interest of such Grantor
therein (the foregoing Equity Interests being collectively the "EXCLUDED
INITIAL EQUITY INTERESTS"; provided further however that the Excluded
Initial Equity Interests shall cease to be excluded from the Collateral
and from the definitions of "COLLATERAL" and "SECURITY COLLATERAL" on the
earlier of (I) the time that the prohibition of assignment or of the
creation of a Lien in such Excluded Initial Equity Interests is no longer
in effect or (II) the applicable Grantor has obtained the consent of any
necessary parties under the terms of the relevant Organization Document to
the assignment of, or creation of a Lien in such Excluded Initial Equity
Interests.
(e) the Tax Sharing Agreement and any certificate, opinion,
document, instrument or other agreement delivered to such Grantor in
connection with or pursuant to the Tax Sharing Agreement, the IP
Agreements (as hereinafter defined), and each Secured Hedge Agreement to
which such Grantor is now or may hereafter become a party, in each case as
such agreements may be amended, amended and restated, supplemented or
otherwise modified from time to time (collectively, the "ASSIGNED
AGREEMENTS"), including, without limitation, (i) all rights of such
Grantor to receive moneys due and to become due under or pursuant to the
Assigned Agreements, (ii) all rights of such Grantor to receive proceeds
of any insurance, indemnity, warranty or
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guaranty with respect to the Assigned Agreements, (iii) claims of such
Grantor for damages arising out of or for breach of or default under the
Assigned Agreements and (iv) the right of such Grantor to terminate the
Assigned Agreements, to perform thereunder and to compel performance and
otherwise exercise all remedies thereunder (all such Collateral being the
"AGREEMENT COLLATERAL");
(f) the following (collectively, the "ACCOUNT COLLATERAL"):
(i) the Cash Collateral Account and each other deposit
account of any Grantor and all funds and financial assets from time
to time credited thereto (including, without limitation, all Cash
Equivalents), all interest, dividends, distributions, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of such funds and financial assets, and all certificates
and instruments, if any, from time to time representing or
evidencing the Cash Collateral Account and such other deposit
accounts;
(ii) all promissory notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time delivered
to or otherwise possessed by the Administrative Agent for or on
behalf of such Grantor, including, without limitation, those
delivered or possessed in substitution for or in addition to any or
all of the then existing Account Collateral; and
(iii) all interest, dividends, distributions, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of the then existing Account Collateral; and
(g) the following (collectively, the "INTELLECTUAL PROPERTY
COLLATERAL"):
(i) all patents, patent applications, utility models and
statutory invention registrations, all inventions claimed or
disclosed therein and all improvements thereto ("PATENTS");
(ii) all trademarks, service marks, domain names, trade
dress, logos, designs, slogans, trade names, business names,
corporate names and other source identifiers, whether registered or
unregistered (provided that no security interest shall be granted in
United States intent-to-use trademark applications to the extent
that, and solely during the period in which, the grant of a security
interest therein would impair the validity or enforceability of such
intent-to-use trademark applications under applicable federal law),
together, in each case, with the goodwill symbolized thereby
("TRADEMARKS");
(iii) all copyrights, including, without limitation,
copyrights in Computer Software (as hereinafter defined), internet
web sites and the content thereof, whether registered or
unregistered ("COPYRIGHTS");
(iv) all computer software, programs and databases
(including, without limitation, source code, object code and all
related applications and data files),
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firmware and documentation and materials relating thereto, together
with any and all maintenance rights, service rights, programming
rights, hosting rights, test rights, improvement rights, renewal
rights and indemnification rights and any substitutions,
replacements, improvements, error corrections, updates and new
versions of any of the foregoing ("COMPUTER SOFTWARE");
(v) all confidential and proprietary information, including,
without limitation, know-how, trade secrets, manufacturing and
production processes and techniques, inventions, research and
development information, databases and data, including, without
limitation, technical data, financial, marketing and business data,
pricing and cost information, business and marketing plans and
customer and supplier lists and information (collectively, "TRADE
SECRETS"), and all other intellectual, industrial and intangible
property of any type, including, without limitation, industrial
designs and mask works;
(vi) all registrations and applications for registration for
any of the foregoing, including, without limitation, those
registrations and applications for registration set forth in
Schedule V hereto (as such Schedule V may be supplemented from time
to time by supplements to this Agreement, each such supplement being
substantially in the form of Exhibit G hereto (an "IP SECURITY
AGREEMENT SUPPLEMENT") executed by such Grantor to the
Administrative Agent from time to time), together with all reissues,
divisions, continuations, continuations-in-part, extensions,
renewals and reexaminations thereof;
(vii) all tangible embodiments of the foregoing, all rights in
the foregoing provided by international treaties or conventions, all
rights corresponding thereto throughout the world and all other
rights of any kind whatsoever of such Grantor accruing thereunder or
pertaining thereto;
(viii) all agreements, permits, consents, orders and
franchises relating to the license, development, use or disclosure
of any of the foregoing to which such Grantor, now or hereafter, is
a party or a beneficiary, including, without limitation, the
agreements set forth in Schedule V hereto ("IP AGREEMENTS"); and
(ix) any and all claims for damages and injunctive relief for
past, present and future infringement, dilution, misappropriation,
violation, misuse or breach with respect to any of the foregoing,
with the right, but not the obligation, to xxx for and collect, or
otherwise recover, such damages;
(h) all commercial tort claims described in Schedule VII hereto
(collectively, together with any commercial tort claims as to which the
Grantors have complied with the requirements of Section 7(c), the
"COMMERCIAL TORT CLAIMS COLLATERAL");
(i) all books and records (including, without limitation, customer
lists, credit files, printouts and other computer output materials and
records) of such Grantor pertaining to any of the Collateral; and
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(j) all proceeds of, collateral for, income, royalties and other
payments now or hereafter due and payable with respect to, and supporting
obligations relating to, any and all of the Collateral (including, without
limitation, proceeds, collateral and supporting obligations that
constitute property of the types described in clauses (a) through (i) of
this Section 1 and this clause (j)) and, to the extent not otherwise
included, all (A) payments under insurance (whether or not the
Administrative Agent is the loss payee thereof), or any indemnity,
warranty or guaranty, payable by reason of loss or damage to or otherwise
with respect to any of the foregoing Collateral, (B) tort claims,
including, without limitation, all commercial tort claims and (C) cash.
Anything contained herein to the contrary notwithstanding, the term "Collateral"
shall not include margin stock (within the meaning of Regulation U of the FRB).
Section 2. Security for Obligations. This Agreement secures, in the
case of each Grantor, the payment of (a) all Obligations of such Grantor now or
hereafter existing under the Loan Documents and (b) all Cash Management
Obligations owing to any Lender, in each case, whether direct or indirect,
absolute or contingent, and whether for principal, reimbursement obligations,
interest, fees, premiums, penalties, indemnifications, contract causes of
action, costs, expenses or otherwise (all such Obligations being the "SECURED
OBLIGATIONS"). For purposes of this Agreement, the term "CASH MANAGEMENT BANK"
means any Lender or Affiliate of a Lender in its capacity as a provider of cash
management services to any Loan Party and the term "CASH MANAGEMENT OBLIGATIONS"
means the Obligations of any Loan Party for cash management services that are
provided by a Cash Management Bank.
Section 3. Grantors Remain Liable. Anything herein to the contrary
notwithstanding, (a) each Grantor shall remain liable under the contracts and
agreements included in such Grantor's interests in the Collateral to the extent
set forth therein to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed, (b) the exercise by the
Administrative Agent of any of the rights hereunder shall not release any
Grantor from any of its duties or obligations under the contracts and agreements
included in the Collateral and (c) no Secured Party shall have any obligation or
liability under the contracts and agreements included in the Collateral by
reason of this Agreement or any other Loan Document, nor shall any Secured Party
be obligated to perform any of the obligations or duties of any Grantor
thereunder or to take any action to collect or enforce any claim for payment
assigned hereunder.
Section 4. Delivery and Control of Security Collateral. (a) All
certificates or instruments evidencing an aggregate principal amount, taken
together with all Security Collateral owned by the Grantors, in excess of
$20,000,000 representing or evidencing Security Collateral shall be delivered to
and held by or on behalf of the Administrative Agent pursuant hereto and shall
be in suitable form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Administrative Agent. The Administrative Agent
shall have the right, at any time in its discretion and without notice to any
Grantor, to transfer to or to register in the name of the Administrative Agent
or any of its nominees any or all of the Security Collateral, subject only to
the revocable rights specified in Section 14(a). In addition, the Administrative
Agent shall have the right from and after the occurrence and during the
continuance of an Event of Default at any
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time to exchange certificates or instruments representing or evidencing Security
Collateral for certificates or instruments of smaller or larger denominations.
Also, the Administrative Agent shall have the right at any time from and after
the occurrence and during the continuance of an Event of Default to convert
Security Collateral consisting of financial assets credited to a Securities
Account to Security Collateral consisting of financial assets held directly by
the Administrative Agent, and to convert Security Collateral consisting of
financial assets held directly by the Administrative Agent to Security
Collateral consisting of financial assets credited to a Securities Account.
(b) With respect to any Security Collateral with an aggregate fair
market value, taken together with all Security Collateral owned by the Grantors,
in excess of $20,000,000 in which any Grantor has any right, title or interest
and that constitutes an uncertificated security, such Grantor will cause the
issuer thereof either (i) to register the Administrative Agent as the registered
owner of such security or (ii) to agree in an authenticated record with such
Grantor and the Administrative Agent that such issuer will comply with
instructions with respect to such security originated by the Administrative
Agent without further consent of such Grantor, such authenticated record to be
in form and substance satisfactory to the Administrative Agent. With respect to
any Security Collateral in which any Grantor has any right, title or interest
and that is not an uncertificated security, upon the request of the
Administrative Agent after the occurrence and during the continuance of an Event
of Default, such Grantor will notify each such issuer of Pledged Equity that
such Pledged Equity is subject to the security interest granted hereunder.
(c) With respect to any Security Collateral with an aggregate fair
market value, taken together with all Security Collateral owned by the Grantors,
in excess of $20,000,000 in which any Grantor has any right, title or interest
and that constitutes a security entitlement in which the Administrative Agent is
not the entitlement holder, such Grantor will cause the securities intermediary
with respect to such security entitlement either (i) to identify in its records
the Administrative Agent as the entitlement holder of such security entitlement
against such securities intermediary or (ii) to agree in an authenticated record
with such Grantor and the Administrative Agent that such securities intermediary
will comply with entitlement orders (that is, notifications communicated to such
securities intermediary directing transfer or redemption of the financial asset
to which such Grantor has a security entitlement) originated by the
Administrative Agent without further consent of such Grantor, such authenticated
record to be in substantially the form of Exhibit C hereto or otherwise in form
and substance reasonably satisfactory to the Administrative Agent (such
agreement being a "SECURITIES ACCOUNT CONTROL AGREEMENT").
(d) With respect to any Security Collateral with an aggregate fair
market value, taken together with all Security Collateral owned by the Grantors,
in excess of $20,000,000 in which any Grantor has any right, title or interest
and that constitutes a commodity contract, such Grantor shall cause the
commodity intermediary with respect to such commodity contract to agree in an
authenticated record with such Grantor and the Administrative Agent that such
commodity intermediary will apply any value distributed on account of such
commodity contract as directed by the Administrative Agent without further
consent of such Grantor, such authenticated record to be in substantially the
form of Exhibit D hereto or otherwise in form and substance satisfactory to the
Administrative Agent (such agreement being a "COMMODITY
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ACCOUNT CONTROL AGREEMENT", and all such authenticated records, together with
all Securities Account Control Agreements being, collectively, "SECURITY CONTROL
AGREEMENTS").
(e) No Grantor will change or add any securities intermediary or
commodity intermediary that maintains any securities account or commodity
account in which any of the Collateral is credited or carried, or change or add
any such securities account or commodity account, in each case without first
complying with the above provisions of this Section 4 in order to perfect the
security interest granted hereunder in such Collateral.
(f) Upon the request of the Administrative Agent upon the
occurrence and during the continuance of an Event of Default, each Grantor will
notify each issuer of Pledged Debt that such Pledged Debt is subject to the
security interest granted hereunder.
Section 5. Maintaining the Account Collateral. (a) So long as any
Loan or any other Obligation of any Loan Party under any Loan Document shall
remain unpaid, any Letter of Credit shall be outstanding and not cash
collateralized in an amount equal to 105% of the face value thereof, any Secured
Hedge Agreement shall be in effect or any Lender shall have any Commitment, the
Borrower will maintain the Cash Collateral Account with Bank of America.
(b) The Administrative Agent shall have sole right to direct the
disposition of funds with respect to the Cash Collateral Account; and it shall
be a term and condition of the Cash Collateral Account, notwithstanding any term
or condition to the contrary in any other agreement relating to the Cash
Collateral Account, that no amount (including, without limitation, interest on
Cash Equivalents credited thereto) will be paid or released to or for the
account of, or withdrawn by or for the account of, the Borrower or any other
Person from the Cash Collateral Account.
(c) The Administrative Agent may, at any time and without notice
to, or consent from, the Grantor, transfer, or direct the transfer of, funds
from the Cash Collateral Account to satisfy the Grantor's obligations under the
Loan Documents if an Event of Default shall have occurred and be continuing.
Section 6. Investing of Amounts in the Cash Collateral Account. The
Administrative Agent will, subject to the provisions of Sections 5 and 22, from
time to time (a) invest amounts received with respect to the Cash Collateral
Account in such Cash Equivalents credited to (A) the Cash Collateral Account as
the Borrower may select or (B) in the case of Cash Equivalents consisting of
Securities Collateral, a securities account in which the Administrative Agent is
the securities intermediary or a securities account subject to a Securities
Account Control Agreement, and (b) invest interest paid on the Cash Equivalents
referred to in clause (a) above, and reinvest other proceeds of any such Cash
Equivalents that may mature or be sold, in each case in such Cash Equivalents
credited in the same manner. Interest and proceeds that are not invested or
reinvested in Cash Equivalents as provided above shall be deposited and held in
the Cash Collateral Account. In addition, the Administrative Agent shall have
the right at any time to exchange such Cash Equivalents for similar Cash
Equivalents of smaller or larger determinations, or for other Cash Equivalents,
credited to the Cash Collateral Account, as the case may be.
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Section 7. Maintaining Electronic Chattel Paper, Transferable
Records and Letter-of-Credit Rights and Giving Notice of Commercial Tort Claims.
So long as any Loan or any other Obligation of any Loan Party under any Loan
Document shall remain unpaid, any Letter of Credit shall be outstanding (and not
cash collateralized in an amount equal to 105% of the L/C Obligations then
outstanding), any Secured Hedge Agreement shall be in effect or any Lender shall
have any Commitment:
(a) Each Grantor will maintain all (i) electronic chattel paper
evidencing an aggregate principal amount, taken together with all other
electronic chattel paper, all tangible chattel paper, the aggregate face
amount of all letter of credit rights and the aggregate face amount of all
letters of credit owned by the Grantors, in excess of $20,000,000 so that
the Administrative Agent has control of the electronic chattel paper in
excess of such amount in the manner specified in Section 9-105 of the UCC
and (ii) all transferable records with an aggregate value, taken together
with all items referred to in clause (i), in excess of $20,000,000, so
that the Administrative Agent has control of the transferable records in
excess of such amount in the manner specified in Section 16 of the Uniform
Electronic Transactions Act, as in effect in the jurisdiction governing
such transferable record ("UETA" );
(b) Each Grantor will maintain all letter-of-credit rights with an
aggregate face amount, taken together with all other electronic chattel
paper, all tangible chattel paper, the aggregate face amount of all letter
of credit rights and the aggregate face amount of all letters of credit
owned by the Grantors, in excess of $20,000,000 assigned to the
Administrative Agent, including, without limitation, all letter-of-credit
rights associated with the letters of credit described in Schedule VIII to
the extent the aggregate amount of such letter-of-credit rights exceeds
the foregoing limitation, so that the Administrative Agent has control of
such letter-of-credit rights in the manner specified in Section 9-107 of
the UCC; and
(c) Each Grantor will immediately give notice to the
Administrative Agent of any commercial tort claim that such Grantor has
elected to prosecute and will promptly execute or otherwise authenticate a
supplement to this Agreement, and otherwise take all necessary action, to
subject such commercial tort claim to the first priority security interest
created under this Agreement.
Section 8. Representations and Warranties. Each Grantor represents
and warrants as follows:
(a) As of the date hereof, such Grantor's exact legal name, as
defined in Section 9-503(a) of the UCC, is correctly set forth in Schedule
I hereto. As of the date hereof, such Grantor has only the trade names,
domain names and marks listed on Schedule V hereto. As of the date hereof,
such Grantor is located (within the meaning of Section 9-307 of the UCC)
and has its chief executive office in the state or jurisdiction set forth
in Schedule I hereto. As of the date hereof, the information set forth in
Schedule I hereto with respect to such Grantor is true and accurate in all
material respects. Such Grantor has not previously changed its name,
location, chief executive office, place where it maintains its agreements,
type of organization, jurisdiction of organization or
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organizational identification number from those set forth in Schedule I
hereto within the last five years prior to the date hereof, except as
disclosed in Schedule IV hereto.
(b) As of the date hereof, all of the Equipment and Inventory of
such Grantor are located at the places specified therefor in Schedule III
hereto. Within the 5 years preceding the execution of this Agreement, such
Grantor has not previously changed the location of its Equipment and
Inventory except as set forth in Schedule IV hereto. All Security
Collateral consisting of certificated securities and instruments have been
delivered to the Administrative Agent, to the extent required by Section 4
hereof. All originals of all tangible chattel paper evidencing an
aggregate principal amount, taken together with all other electronic
chattel paper, all tangible chattel paper, the aggregate face amount of
all letter of credit rights and the aggregate face amount of all letters
of credit owned by the Grantors, in excess of $20,000,000 that evidence
Receivables have been delivered to the Administrative Agent. None of the
Receivables or Agreement Collateral is evidenced by a promissory note or
other instrument that has not been delivered to the Administrative Agent
if so required by Section 4 hereof.
(c) Such Grantor is the legal and beneficial owner of the
Collateral of such Grantor free and clear of any Lien, claim, option or
right of others, except for the security interest created under this
Agreement or permitted by Section 7.01 of the Credit Agreement. No
authorized and effective financing statement or other instrument similar
in effect covering all or any part of such Collateral or listing such
Grantor or, to such Grantor's knowledge, any trade name of such Grantor as
debtor is on file in any recording office, except such as may have been
filed in favor of the Administrative Agent relating to the Loan Documents
or as otherwise permitted by the Credit Agreement.
(d) The Pledged Equity pledged by such Grantor hereunder has been
duly authorized and validly issued and is fully paid and non-assessable.
With respect to the Pledged Equity that is an uncertificated security, to
the extent required by Section 4 hereof, such Grantor has caused the
issuer thereof either (i) to register the Administrative Agent as the
registered owner of such security or (ii) to agree in an authenticated
record with such Grantor and the Administrative Agent that such issuer
will comply with instructions with respect to such security originated by
the Administrative Agent without further consent of such Grantor. If such
Grantor is an issuer of Pledged Equity, such Grantor confirms that it has
received notice of such security interest. To such Grantor's knowledge,
the Pledged Debt pledged by such Grantor hereunder has been duly
authorized, authenticated or issued and delivered and is the legal, valid
and binding obligation of the issuers thereof. To the extent such Pledged
Debt is evidenced by one or more promissory notes and evidence aggregate
obligations, taken together with all Security Collateral owned by the
Grantors, in excess of $10,000,000, such notes have been delivered to the
Administrative Agent. To each Grantor's knowledge, none of the Pledged
Debt pledged by it is in default.
(e) As of the date hereof, the Initial Pledged Equity pledged by
such Grantor constitutes the percentage of the issued and outstanding
Equity Interests of the issuers thereof indicated on Schedule II hereto.
As of the date hereof, the Initial Pledged Debt
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constitutes all of the outstanding indebtedness owed to such Grantor by
the issuers thereof and is outstanding in the principal amount indicated
on Schedule II hereto.
(f) All of the investment property owned by such Grantor as of the
date hereof is listed on Schedule 5.08(e) to the Credit Agreement.
(g) The Assigned Agreements to which such Grantor is a party have
been duly authorized, executed and delivered by such Grantor and, to such
Grantor's knowledge, by the counter-parties thereto.
(h) Such Grantor is not a beneficiary or assignee under any letter
of credit, other than the letters of credit described in Schedule VIII
hereto, as such Schedule VIII may be amended from time to time, and legal,
binding and enforceable Consents to Assignment of Letter of Credit Rights,
in the form of the Consent to Assignment of Letter of Credit Rights
attached hereto as Exhibit G, are in effect for each letter of credit that
constitutes Collateral, except to the extent control over any such
letter-of-credit right is not required by Section 7(b) hereof.
(i) This Agreement creates in favor of the Administrative Agent
for the benefit of the Secured Parties a valid security interest in the
Collateral of such Grantor, securing the payment of the Secured
Obligations. When UCC financing statements naming each Grantor, as debtor
and the Administrative Agent, as secured party, and identifying the
Collateral have been filed with the Secretary of State of the jurisdiction
of incorporation of each Grantor, the security interest created under this
Agreement shall constitute a perfected security interest in the Collateral
described on such UCC financing statements to the extent that a security
interest therein may be perfected by filing pursuant to the relevant UCC,
prior to all other Liens and rights of others therein except for Liens
permitted by Section 7.01 of the Credit Agreement.
(j) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or, to
any Grantor's knowledge, any other third party is required for (i) the
grant by such Grantor of the security interest granted hereunder or for
the execution, delivery or performance of this Agreement by such Grantor,
(ii) the perfection or maintenance of the security interest created
hereunder (including the first priority nature of such security interest),
except for the filing of financing and continuation statements under the
UCC, the recordation of the Intellectual Property Security Agreements
referred to in Section 13(f) with the U.S. Patent and Trademark Office and
the U.S. Copyright Office and the actions described in Section 4 with
respect to Security Collateral or (iii) the exercise by the Administrative
Agent of its voting or other rights provided for in this Agreement or the
remedies in respect of the Collateral pursuant to this Agreement, except
as may be required in connection with the disposition of any portion of
the Security Collateral by laws affecting the offering and sale of
securities generally.
(k) The Inventory that has been produced or distributed by such
Grantor has been produced in compliance with all requirements of
applicable law, including, without limitation, the Fair Labor Standards
Act.
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(l) As to itself and its Intellectual Property Collateral:
(i) To such Grantor's knowledge, the operation of such
Grantor's business as currently conducted or as contemplated to be
conducted and the use of the Intellectual Property Collateral in
connection therewith do not conflict with, infringe, misappropriate,
dilute, misuse or otherwise violate the intellectual property rights
of any third party, except to the extent any such infringement,
misappropriation, dilution, misuse or other violation could not
reasonably be expected to result in a Material Adverse Effect.
(ii) Such Grantor is the exclusive owner of all right, title
and interest in and to such Grantor's interests in the Intellectual
Property Collateral, and is entitled to use all Intellectual
Property Collateral subject only to the terms of the IP Agreements.
(iii) The Intellectual Property Collateral set forth on
Schedule V hereto includes all of the registered patents, patent
applications, domain names, trademark registrations and applications
(excluding any intent-to-use trademark applications), copyright
registrations and applications and material IP Agreements owned by
such Grantor as of the date hereof.
(iv) The Intellectual Property Collateral is subsisting and
has not been adjudged invalid or unenforceable in whole or in part,
and to the best of such Grantor's knowledge, is valid and
enforceable. Such Grantor is not aware of any uses of any item of
Intellectual Property Collateral that could be expected to lead to
such item becoming invalid or unenforceable.
(v) Except for such items of Intellectual Property
Collateral that such Grantor reasonably determines are no longer
necessary for the operation of its business, such Grantor has made
or performed all filings, recordings and other acts and has paid all
required fees and taxes to maintain and protect its interest in each
and every item of Intellectual Property Collateral in full force and
effect throughout the United States, and to protect and maintain its
interest therein including, without limitation, recordations of any
of its interests in the Patents and Trademarks with the U.S. Patent
and Trademark Office, and recordation of any of its interests in the
Copyrights with the U.S. Copyright Office. Such Grantor has used
proper statutory notice in connection with its use of each material
patent, trademark and copyright in the Intellectual Property
Collateral.
(vi) No claim, action, suit, investigation, litigation or
proceeding has been asserted or is pending or to such Grantor's
knowledge threatened against such Grantor (i) based upon or
challenging or seeking to deny or restrict the Grantor's rights in
or use of any of the Intellectual Property Collateral, (ii) alleging
that the Grantor's rights in or use of the Intellectual Property
Collateral or that any services provided by, processes used by, or
products manufactured or sold by, such Grantor infringe,
misappropriate, dilute, misuse or otherwise violate any patent,
trademark, copyright or any other proprietary right
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of any third party, or (iii) alleging that the Intellectual Property
Collateral is being licensed or sublicensed in violation or
contravention of the terms of any license or other agreement and in
any such case an adverse determination could reasonably be expected
to result in a Material Adverse Effect. To such Grantor's knowledge,
no Person is engaging in any activity that infringes,
misappropriates, dilutes, misuses or otherwise violates the
Intellectual Property Collateral or the Grantor's rights in or use
thereof. Except as set forth on Schedule V hereto, as of the date
hereof, such Grantor has not granted any license, release, covenant
not to xxx, non-assertion assurance, or other right to any Person
with respect to any part of the Intellectual Property Collateral.
The consummation of the transactions contemplated by the Loan
Documents and the Related Documents will not result in the
termination or material impairment of any of the Intellectual
Property Collateral.
(vii) With respect to each IP Agreement that is material to
the conduct of such Grantor's business: (A) to such Grantor's
knowledge, such IP Agreement is valid and binding and in full force
and effect and represents the entire agreement between the
respective parties thereto with respect to the subject matter
thereof; (B) such IP Agreement will not cease to be valid and
binding and in full force and effect on terms identical to those
currently in effect as a result of the rights and interest granted
herein, nor will the grant of such rights and interest constitute a
material breach or default under such IP Agreement or otherwise give
any party thereto a right to terminate such IP Agreement; (C) such
Grantor has not received any notice of termination or cancellation
under such IP Agreement; (D) such Grantor has not received any
notice of a breach or default under such IP Agreement, which breach
or default has not been cured; (E) such Grantor has not granted to
any other third party any adverse rights under such IP Agreement;
and (F) neither such Grantor nor to such Grantor's knowledge, any
other party to such IP Agreement is in breach or default thereof in
any material respect, and to such Grantor's knowledge, no event has
occurred that, with notice or lapse of time or both, would
constitute such a breach or default or permit termination,
modification or acceleration under such IP Agreement.
(viii) To the best of such Grantor's knowledge, (A) none of
the Trade Secrets of such Grantor has been used, divulged, disclosed
or appropriated to the detriment of such Grantor for the benefit of
any other Person other than such Grantor; (B) no employee,
independent contractor or agent of such Grantor has misappropriated
any trade secrets of any other Person in the course of the
performance of his or her duties as an employee, independent
contractor or agent of such Grantor; and (C) no employee,
independent contractor or agent of such Grantor is in default or
breach of any term of any employment agreement, non-disclosure
agreement, assignment of inventions agreement or similar agreement
or contract relating in any way to the protection, ownership,
development, use or transfer of such Grantor's Intellectual Property
Collateral.
(ix) No Grantor or Intellectual Property Collateral is
subject to any outstanding consent, settlement, decree, order,
injunction, judgment or ruling
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restricting the use of any Intellectual Property Collateral or that
would impair the validity or enforceability of such Intellectual
Property Collateral.
(m) As of the date hereof, the Grantor has no commercial tort
claims (as defined in Section 9-102(13) of the UCC) of which it is aware
other than those listed in Schedule VII hereto.
Section 9. Further Assurances. (a) Each Grantor agrees that from
time to time, at the expense of such Grantor, such Grantor will promptly execute
and deliver, or otherwise authenticate, all further instruments and documents,
and take all further action that may be necessary or desirable, or that the
Administrative Agent may request, in order to perfect and protect any pledge or
security interest granted or purported to be granted by such Grantor hereunder
or to enable the Administrative Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral of such Grantor. Without
limiting the generality of the foregoing, each Grantor will promptly, upon the
request of the Administrative Agent, with respect to Collateral of such Grantor:
(i) to the extent required by the terms of Sections 4 through 8 hereof,
inclusive, if any such Collateral shall be evidenced by a promissory note or
other instrument or chattel paper, deliver and pledge to the Administrative
Agent hereunder such note or instrument or chattel paper duly indorsed and
accompanied by duly executed instruments of transfer or assignment, all in form
and substance reasonably satisfactory to the Administrative Agent; (ii) execute
or authenticate and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or desirable, or as the Administrative Agent may reasonably request, in order to
perfect and preserve the security interest granted or purported to be granted by
such Grantor hereunder; provided, however, that no Grantor shall be required to
undertake or cause to be undertaken on its behalf any actions in any foreign
jurisdiction to perfect the security interest granted hereby in the securities
of any foreign issuer unless requested to do so by the Administrative Agent
pursuant to Section 6.12(c) of the Credit Agreement; (iii) deliver and pledge to
the Administrative Agent for benefit of the Secured Parties certificates
representing Security Collateral that constitutes certificated securities,
accompanied by undated stock or bond powers executed in blank to the extent
required by Section 4 hereof; (iv) take all action necessary to ensure that the
Administrative Agent has control of Collateral consisting of deposit accounts,
electronic chattel paper, investment property, letter-of-credit rights and
transferable records as provided in Sections 9-104, 9-105, 9-106 and 9-107 of
the UCC and in Section 16 of UETA, in each case, solely to the extent
contemplated by Sections 4 through 8 hereof, inclusive (in the case of deposit
accounts, solely to the extent required by Section 6.12(c) of the Credit
Agreement); (v) at the request of the Administrative Agent following the
occurrence and during the continuance of a Default, take all action to ensure
that the Administrative Agent's security interest is noted on any certificate of
ownership related to any Collateral evidenced by a certificate of ownership to
the extent that such Collateral has a book value in excess of $250,000 or
$1,000,000 in the aggregate for all such Collateral; (vi) at the request of the
Administrative Agent if so required by Section 7 hereof, cause the
Administrative Agent to be the beneficiary under all letters of credit that
constitute Collateral with all rights of a transferee under Section 5-114(e) of
the UCC; and (vii) deliver to the Administrative Agent evidence that all other
action that the Administrative Agent may deem reasonably necessary or desirable
in order to perfect and protect the security interest created by such Grantor
under this Agreement has been taken.
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15
(b) Each Grantor hereby authorizes the Administrative Agent to
file one or more financing or continuation statements, and amendments thereto,
including, without limitation, one or more financing statements indicating that
such financing statements cover all assets or all personal property (or words of
similar effect) of such Grantor, in each case without the signature of such
Grantor, and regardless of whether any particular asset described in such
financing statements falls within the scope of the UCC or the granting clause of
this Agreement. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law. Each Grantor
ratifies its authorization for the Administrative Agent to have filed such
financing statements, continuation statements or amendments filed prior to the
date hereof.
(c) Each Grantor will furnish to the Administrative Agent from
time to time statements and schedules further identifying and describing the
Collateral of such Grantor and such other reports in connection with such
Collateral as the Administrative Agent may reasonably request, all in reasonable
detail.
Section 10. As to Equipment and Inventory. Each Grantor will
promptly furnish to the Administrative Agent a statement respecting any loss or
damage exceeding $5,000,000 to any of the Equipment or Inventory of such
Grantor.
Section 11. Insurance. (a) Each Grantor will, at its own expense,
maintain with financially sound and reputable independent insurers, insurance
with respect to the Equipment and Inventory of such Grantor against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons. Each policy for
property damage insurance shall provide for all losses (except for losses of
less than $5,000,000 per occurrence) to be paid directly to the Administrative
Agent. Each such policy shall in addition (i) name such Grantor and the
Administrative Agent as insured parties thereunder (without any representation
or warranty by or obligation upon the Administrative Agent) as their interests
may appear, (ii) provide that there shall be no recourse against the
Administrative Agent for payment of premiums or other amounts with respect
thereto and (iii) provide that at least 10 days' prior written notice of
cancellation or of lapse shall be given to the Administrative Agent by the
insurer. Each Grantor will, if so requested by the Administrative Agent, deliver
to the Administrative Agent original or duplicate policies of such insurance
and, as often as the Administrative Agent may reasonably request (which shall
not be more often than once in any calendar year unless an Event of Default
shall have occurred and be continuing), a report of a reputable insurance broker
with respect to such insurance. Further, each Grantor will, at the request of
the Administrative Agent after the occurrence and during the continuance of an
Event of Default, duly execute and deliver instruments of assignment of such
insurance policies to comply with the requirements of Section 10 and cause the
insurers to acknowledge notice of such assignment.
(b) Reimbursement under any liability insurance maintained by any
Grantor pursuant to this Section 11 may be paid directly to the Person who shall
have incurred liability covered by such insurance.
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16
(c) So long as no Event of Default shall have occurred and be
continuing, all insurance payments received by the Administrative Agent in
connection with any loss, damage or destruction of any Inventory or Equipment
will be released by the Administrative Agent to the applicable Grantor for the
repair, replacement or restoration thereof. Upon the occurrence and during the
continuance of a Default under Section 8.01(a), (f) or (g) of the Credit
Agreement or an Event of Default, to the extent that (i) the amount of any such
insurance payments exceeds the cost of any such repair, replacement or
restoration, or (ii) such insurance payments are not otherwise required by the
applicable Grantor to complete any such repair, replacement or restoration
required hereunder, the Administrative Agent will not be required to release the
amount thereof to such Grantor and may hold or continue to hold such amount in
the Cash Collateral Account as additional security for the Secured Obligations
of such Grantor (except that the Administrative Agent will release to such
Grantor any such amount if and to the extent that any prepayment of Obligations
is required under the Credit Agreement in connection with the receipt of such
amount and such prepayment has been made). Upon the occurrence and during the
continuance of any Event of Default or the actual or constructive total loss (in
excess of $5,000,000 per occurrence) of any Equipment or Inventory, all
insurance payments in respect of such Equipment or Inventory shall be paid to
the Administrative Agent and shall, in the Administrative Agent's sole
discretion, (i) be released to the applicable Grantor to be applied as set forth
in the first sentence of this subsection (c) or (ii) be held as additional
collateral hereunder or applied as specified in Section 22(b).
Section 12. Post-Closing Changes; Bailees; Collections on Assigned
Agreements, Receivables and Related Contracts. (a) No Grantor will change its
name, type of organization, jurisdiction of organization, organizational
identification number or location (within the meaning of Section 9-307 of the
UCC) from those set forth in Section 8(a) of this Agreement without first giving
at least 30 days' prior written notice to the Administrative Agent (provided,
that in the case of a change resulting from a merger not otherwise prohibited
under the terms of the Credit Agreement, the notice may be given simultaneously
with such merger) and taking all action required by the Administrative Agent for
the purpose of perfecting or protecting the security interest granted by this
Agreement. Each Grantor will hold and preserve its records relating to the
Collateral, including, without limitation, the Assigned Agreements and Related
Contracts, and will permit representatives of the Administrative Agent at any
time upon reasonable prior notice during normal business hours to inspect and
make abstracts from such records and other documents. If the Grantor does not
have an organizational identification number and later obtains one, it will
forthwith notify the Administrative Agent of such organizational identification
number.
(b) If any Collateral of any Grantor is at any time in the
possession or control of a warehouseman, bailee or agent, and if the
Administrative Agent so requests, such Grantor will (i) notify such
warehouseman, bailee or agent of the security interest created hereunder and
(ii) instruct such warehouseman, bailee or agent to hold all such Collateral
solely for the Administrative Agent's account, subject only to the
Administrative Agent's instructions (which shall permit such Collateral to be
removed by such Grantor in the ordinary course of business until the
Administrative Agent notifies such warehouseman, bailee or agent that an Event
of Default has occurred and is continuing).
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(c) Except as otherwise provided in this subsection (c), each
Grantor will continue to collect, at its own expense, all amounts due or to
become due such Grantor under the Assigned Agreements, Receivables and Related
Contracts. In connection with such collections, such Grantor may take (and, at
the Administrative Agent's written direction after the occurrence and during the
continuance of a Default under Section 8.01(a), (f) or (g) of the Credit
Agreement or an Event of Default, will take) such action as such Grantor or the
Administrative Agent may deem necessary or advisable to enforce collection of
the Assigned Agreements, Receivables and Related Contracts; provided, however,
that the Administrative Agent shall have the right at any time after the
occurrence and during the continuance of an Event of Default, upon written
notice to such Grantor of its intention to do so, to notify the account debtors
under any Assigned Agreements, Receivables and Related Contracts of the
assignment of such Assigned Agreements, Receivables and Related Contracts to the
Administrative Agent and to direct such account debtors to make payment of all
amounts due or to become due to such Grantor thereunder directly to the
Administrative Agent and, upon such notification and at the expense of such
Grantor, to enforce collection of any such Assigned Agreements, Receivables and
Related Contracts, to adjust, settle or compromise the amount or payment
thereof, in the same manner and to the same extent as such Grantor might have
done, and to otherwise exercise all rights with respect to such Assigned
Agreements, Receivables and Related Contracts, including, without limitation,
those set forth set forth in Section 9-607 of the UCC. After receipt by any
Grantor of the notice from the Administrative Agent referred to in the proviso
to the preceding sentence, (i) all amounts and proceeds (including, without
limitation, instruments) received by such Grantor in respect of the Assigned
Agreements, Receivables and Related Contracts of such Grantor shall be received
in trust for the benefit of the Administrative Agent hereunder, shall be
segregated from other funds of such Grantor and shall be forthwith paid over to
the Administrative Agent in the same form as so received (with any necessary
indorsement) to be deposited in the Cash Collateral Account and either (A)
released to such Grantor so long as no Event of Default shall have occurred and
be continuing or (B) if any Event of Default shall have occurred and be
continuing, applied as provided in Section 22(b) and (ii) such Grantor will not
adjust, settle or compromise the amount or payment of any Receivable or amount
due on any Assigned Agreement or Related Contract, release wholly or partly any
Obligor thereof, or allow any credit or discount thereon. No Grantor will permit
or consent to the subordination of its right to payment under any of the
Assigned Agreements, Receivables and Related Contracts to any other indebtedness
or obligations of the account debtor or obligor thereof unless such Grantor
deems such subordination advisable in the exercise of its reasonable business
judgment.
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Section 13. As to Intellectual Property Collateral. (a) With respect
to each item of its Intellectual Property Collateral that is material to the
conduct of its business, each Grantor agrees to take, at its expense, all
necessary steps, including, without limitation, in the U.S. Patent and Trademark
Office, the U.S. Copyright Office and any other governmental authority, to (i)
maintain the validity and enforceability of such Intellectual Property
Collateral and maintain such Intellectual Property Collateral in full force and
effect, and (ii) pursue the registration and maintenance of each material
patent, trademark, or copyright registration or application, now or hereafter
included in such Intellectual Property Collateral of such Grantor, including,
without limitation, the payment of required fees and taxes, the filing of
responses to office actions issued by the U.S. Patent and Trademark Office, the
U.S. Copyright Office or other governmental authorities, the filing of
applications for renewal or extension, the filing of affidavits under Sections 8
and 15 of the U.S. Trademark Act, the filing of divisional, continuation,
continuation-in-part, reissue and renewal applications or extensions, the
payment of maintenance fees and the participation in interference,
reexamination, opposition, cancellation, infringement and misappropriation
proceedings. No Grantor shall, without the written consent of the Administrative
Agent, discontinue use of or otherwise abandon any Intellectual Property
Collateral, or abandon any right to file an application for patent, trademark,
or copyright, unless such Grantor shall have previously determined that such use
or the pursuit or maintenance of such Intellectual Property Collateral is no
longer desirable in the conduct of such Grantor's business and that the loss
thereof would not be reasonably likely to have a Material Adverse Effect.
(b) Each Grantor agrees promptly to notify the Administrative
Agent if such Grantor becomes aware (i) that any item of the Intellectual
Property Collateral may have become abandoned, placed in the public domain,
invalid or unenforceable, or of any adverse determination or development
regarding such Grantor's ownership of any of the Intellectual Property
Collateral or its right to register the same or to keep and maintain and enforce
the same, or (ii) of any adverse determination or the institution of any
proceeding (including, without limitation, the institution of any proceeding in
the U.S. Patent and Trademark Office or any court) regarding any item of the
Intellectual Property Collateral and, in each case, such occurrence could
reasonably be expected to result in a Material Adverse Effect.
(c) In the event that any Grantor becomes aware that any material
item of the Intellectual Property Collateral is being infringed or
misappropriated by a third party, such Grantor shall promptly notify the
Administrative Agent and shall take such actions, at its expense, as such
Grantor or the Administrative Agent deems reasonable and appropriate under the
circumstances to protect or enforce such Intellectual Property Collateral,
including, without limitation, suing for infringement or misappropriation and
for an injunction against such infringement or misappropriation.
(d) Each Grantor shall use proper statutory notice in connection
with its use of each material item of its Intellectual Property Collateral. No
Grantor shall do or permit any act or knowingly omit to do any act whereby any
of its material Intellectual Property Collateral may lapse or become invalid or
unenforceable or placed in the public domain.
(e) With respect to its registered Intellectual Property
Collateral and applications therefor, each Grantor agrees to execute or
otherwise authenticate an agreement, in
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substantially the form set forth in Exhibit E hereto or otherwise in form and
substance reasonably satisfactory to the Administrative Agent (an "INTELLECTUAL
PROPERTY SECURITY AGREEMENT"), for recording the security interest granted
hereunder to the Administrative Agent in such Intellectual Property Collateral
with the U.S. Patent and Trademark Office, the U.S. Copyright Office and any
other governmental authorities necessary to perfect the security interest
hereunder in such Intellectual Property Collateral.
(f) Each Grantor agrees that should it obtain an ownership
interest in any item of the type set forth in Section 1(g) that is not on the
date hereof a part of the Intellectual Property Collateral ("AFTER-ACQUIRED
INTELLECTUAL PROPERTY") (i) the provisions of this Agreement shall automatically
apply thereto, and (ii) any such After-Acquired Intellectual Property and, in
the case of trademarks, the goodwill symbolized thereby, shall automatically
become part of the Intellectual Property Collateral subject to the terms and
conditions of this Agreement with respect thereto. Within thirty (30) days after
the end of each fiscal quarter, each Grantor shall give written notice to the
Administrative Agent identifying the After-Acquired Intellectual Property
acquired since the delivery of the last such report, and such Grantor shall
contemporaneously therewith execute and deliver to the Administrative Agent with
such written notice, or otherwise authenticate, an agreement substantially in
the form of Exhibit F hereto or otherwise in form and substance reasonably
satisfactory to the Administrative Agent (an "IP SECURITY AGREEMENT SUPPLEMENT")
covering such After-Acquired Intellectual Property which IP Security Agreement
Supplement shall be recorded with the U.S. Patent and Trademark Office, the U.S.
Copyright Office and any other governmental authorities necessary to perfect the
security interest hereunder in such After-Acquired Intellectual Property.
Section 14. Voting Rights; Dividends; Etc. (a) So long as no Event
of Default shall have occurred and be continuing:
(i) Each Grantor shall be entitled to exercise, in the use of its
reasonable business judgment, any and all voting and other consensual
rights pertaining to the Security Collateral of such Grantor or any part
thereof for any purpose.
(ii) Each Grantor shall be entitled to receive and retain any and
all dividends, interest and other distributions paid in respect of the
Security Collateral of such Grantor if and to the extent that the payment
thereof is not otherwise prohibited by the terms of the Loan Documents.
(iii) The Administrative Agent will execute and deliver (or cause to
be executed and delivered) to each Grantor all such proxies and other
instruments as such Grantor may reasonably request for the purpose of
enabling such Grantor to exercise the voting and other rights that it is
entitled to exercise pursuant to paragraph (i) above and to receive the
dividends or interest payments that it is authorized to receive and retain
pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default:
(i) All rights of each Grantor (x) to exercise or refrain from
exercising the voting and other consensual rights that it would otherwise
be entitled to exercise pursuant
Del Monte Security Agreement
20
to Section 14(a)(i) shall, upon written notice to such Grantor by the
Administrative Agent, cease and (y) to receive the dividends, interest and
other distributions that it would otherwise be authorized to receive and
retain pursuant to Section 14(a)(ii) shall, upon written notice to such
Grantor by the Administrative Agent, cease, and all such rights shall
thereupon become vested in the Administrative Agent, which shall thereupon
have the sole right to exercise or refrain from exercising such voting and
other consensual rights and to receive and hold as Security Collateral
such dividends, interest and other distributions.
(ii) All dividends, interest and other distributions that are
received by any Grantor contrary to the provisions of paragraph (i) of
this Section 14(b) shall be received in trust for the benefit of the
Administrative Agent, shall be segregated from other funds of such Grantor
and shall be forthwith paid over to the Administrative Agent as Security
Collateral in the same form as so received (with any necessary
indorsement).
(iii) The Administrative Agent shall be authorized to send to each
Securities Intermediary or Commodity Intermediary as defined in and under
any Security Control Agreement a Notice of Exclusive Control as defined in
and under such Security Control Agreement.
Section 15. As to the Assigned Agreements. (a) Except to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect, each Grantor will at its expense perform and observe
all terms and provisions of the Assigned Agreements to be performed or observed
by it, maintain the Assigned Agreements to which it is a party in full force and
effect, enforce the Assigned Agreements to which it is a party in accordance
with the terms thereof and take all such action to such end as may be reasonably
requested from time to time by the Administrative Agent.
(b) Each Grantor hereby consents on its behalf and on behalf of
its Subsidiaries to the assignment and pledge to the Administrative Agent for
benefit of the Secured Parties of each Assigned Agreement to which it is a party
by any other Grantor hereunder.
Section 16. Payments Under the Assigned Agreements. (a) Each Grantor
agrees that, after the occurrence of any payment default or after the Lenders
have elected to exercise their remedies under Section 8.02 of the Credit
Agreement, all payments due or to become due under or in connection with such
Assigned Agreement will be made directly to the Cash Collateral Account.
(b) All moneys received or collected pursuant to Section 16(a)
above shall be applied as provided in Section 21(b).
Section 17. As to Letter-of-Credit Rights. Upon the occurrence and
during the continuance of an Event of Default, each Grantor will, promptly upon
written request by the Administrative Agent, (i) notify (and such Grantor hereby
authorizes the Administrative Agent to notify) the issuer and each nominated
person with respect to each of the Related Contracts consisting of letters of
credit that the proceeds thereof have been assigned to the Administrative Agent
hereunder and any payments due or to become due in respect thereof are to be
made
Del Monte Security Agreement
21
directly to the Administrative Agent or its designee and (ii) arrange for the
Administrative Agent to become the transferee beneficiary of letter of credit.
Section 18. Administrative Agent Appointed Attorney-in-Fact. Each
Grantor hereby irrevocably appoints the Administrative Agent such Grantor's
attorney-in-fact, with full authority in the place and stead of such Grantor and
in the name of such Grantor or otherwise, from time to time in the
Administrative Agent's discretion from and after the occurrence and during the
continuance of an Event of Default, to take any action and to execute any
instrument that the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation:
(a) if such Grantor has failed to do so, to obtain and adjust
insurance required to be paid to the Administrative Agent pursuant to
Section 11,
(b) to ask for, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due
under or in respect of any of the Collateral,
(c) to receive, indorse and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a) or
(b) above, and
(d) to file any claims or take any action or institute any
proceedings that the Administrative Agent may deem necessary or desirable
for the collection of any of the Collateral or otherwise to enforce
compliance with the terms and conditions of any Assigned Agreement or the
rights of the Administrative Agent with respect to any of the Collateral.
Section 19. Administrative Agent May Perform. If any Grantor fails
to perform any agreement contained herein, the Administrative Agent may, but
without any obligation to do so and without notice, itself perform, or cause
performance of, such agreement, and the expenses of the Administrative Agent
incurred in connection therewith shall be payable by such Grantor under Section
22.
Section 20. The Administrative Agent's Duties. (a) The powers
conferred on the Administrative Agent hereunder are solely to protect the
Secured Parties' interest in the Collateral and shall not impose any duty upon
it to exercise any such powers. Except for the safe custody of any Collateral in
its possession and the accounting for moneys actually received by it hereunder,
the Administrative Agent shall have no duty as to any Collateral, as to
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not
any Secured Party has or is deemed to have knowledge of such matters, or as to
the taking of any necessary steps to preserve rights against any parties or any
other rights pertaining to any Collateral. The Administrative Agent shall be
deemed to have exercised reasonable care in the custody and preservation of any
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which it accords its own property.
(b) Anything contained herein to the contrary notwithstanding, the
Administrative Agent may from time to time, when the Administrative Agent deems
it to be
Del Monte Security Agreement
22
necessary, appoint one or more subagents (each a "SUBAGENT") for the
Administrative Agent hereunder with respect to all or any part of the
Collateral. In the event that the Administrative Agent so appoints any Subagent
with respect to any Collateral, (i) the assignment and pledge of such Collateral
and the security interest granted in such Collateral by each Grantor hereunder
shall be deemed for purposes of this Security Agreement to have been made to
such Subagent, in addition to the Administrative Agent, for the ratable benefit
of the Secured Parties, as security for the Secured Obligations of such Grantor,
(ii) such Subagent shall automatically be vested, in addition to the
Administrative Agent, with all rights, powers, privileges, interests and
remedies of the Administrative Agent hereunder with respect to such Collateral,
and (iii) the term "Administrative Agent," when used herein in relation to any
rights, powers, privileges, interests and remedies of the Administrative Agent
with respect to such Collateral, shall include such Subagent; provided, however,
that no such Subagent shall be authorized to take any action with respect to any
such Collateral unless and except to the extent expressly authorized in writing
by the Administrative Agent.
Section 21. Remedies. If any Event of Default shall have occurred
and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party upon default under the UCC (whether or not the UCC applies to the
affected Collateral) and also may: (i) require each Grantor to, and each
Grantor hereby agrees that it will at its expense and upon request of the
Administrative Agent forthwith, assemble all or part of the Collateral as
directed by the Administrative Agent and make it available to the
Administrative Agent at a place and time to be designated by the
Administrative Agent that is reasonably convenient to both parties; (ii)
without notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any of the
Administrative Agent's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Administrative Agent may
deem commercially reasonable; (iii) occupy any premises owned or leased by
any of the Grantors where the Collateral or any part thereof is assembled
or located for a reasonable period in order to effectuate its rights and
remedies hereunder or under law, without obligation to such Grantor in
respect of such occupation; and (iv) exercise any and all rights and
remedies of any of the Grantors under or in connection with the
Collateral, or otherwise in respect of the Collateral, including, without
limitation, (A) any and all rights of such Grantor to demand or otherwise
require payment of any amount under, or performance of any provision of,
the Assigned Agreements, the Receivables, the Related Contracts and the
other Collateral, (B) withdraw, or cause or direct the withdrawal, of all
funds with respect to the Account Collateral and (C) exercise all other
rights and remedies with respect to the Assigned Agreements, the
Receivables, the Related Contracts and the other Collateral, including,
without limitation, those set forth in Section 9-607 of the UCC. Each
Grantor agrees that, to the extent notice of sale shall be required by
law, at least ten days' notice to such Grantor of the time and place of
any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Administrative Agent shall
not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Administrative Agent may adjourn any public or
private sale from time to time by
Del Monte Security Agreement
23
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(b) Any cash held by or on behalf of the Administrative Agent and
all cash proceeds received by or on behalf of the Administrative Agent in
respect of any sale of, collection from, or other realization upon all or
any part of the Collateral may, in the discretion of the Administrative
Agent, be held by the Administrative Agent as collateral for, and/or then
or at any time thereafter applied (after payment of any amounts payable to
the Administrative Agent pursuant to Section 22) by the Administrative
Agent for the ratable benefit of the Secured Parties against, all or any
part of the Secured Obligations, in the following manner:
(i) first, paid to the Agents for any amounts then owing to
the Agents pursuant to Section 11.04 of the Credit Agreement or
otherwise under the Loan Documents, ratably in accordance with such
respective amounts then owing to the Agents; and
(ii) second, ratably (A) paid to the Lenders and the Hedge
Banks, respectively, for any amounts then owing to them, in their
capacities as such, under the Loan Documents ratably in accordance
with such respective amounts then owing to such Lenders and the
Hedge Banks, provided that, for purposes of this Section 21, the
amount owing to any such Hedge Bank pursuant to any Secured Hedge
Agreement to which it is a party (other than any amount therefore
accrued and unpaid) shall be deemed to be equal to the Swap
Termination Value therefor and (B) deposited as Collateral in the
Cash Collateral Account up to an amount equal to 105% of the
aggregate Outstanding Amount of all outstanding L/C Obligations,
provided further that in the event that any such Letter of Credit is
drawn, the Administrative Agent shall pay to the Issuing Bank that
issued such Letter of Credit the amount held in the Cash Collateral
Account in respect of such Letter of Credit, provided further that,
to the extent that any such Letter of Credit shall expire or
terminate undrawn and as a result thereof the amount of the
Collateral in the Cash Collateral Account shall exceed 105% of the
aggregate Outstanding Amount of all then outstanding L/C
Obligations, such excess amount of such Collateral shall be applied
in accordance with the remaining order of priority set out in this
Section 21(b).
Any surplus of such cash or cash proceeds held by or on the behalf of the
Administrative Agent and remaining after payment in full of all the
Secured Obligations shall be paid over to the applicable Grantor or to
whomsoever may be lawfully entitled to receive such surplus.
(c) All payments received by any Grantor under or in connection
with any Assigned Agreement or otherwise in respect of the Collateral
shall be received in trust for the benefit of the Administrative Agent,
shall be segregated from other funds of such Grantor and shall be
forthwith paid over to the Administrative Agent in the same form as so
received (with any necessary indorsement).
Del Monte Security Agreement
24
(d) The Administrative Agent may, without notice to any Grantor
except as required by law and at any time or from time to time, charge,
set-off and otherwise apply all or any part of the Secured Obligations
against any funds held with respect to the Account Collateral or in any
other deposit account.
(e) In the event of any sale or other disposition of any of the
Intellectual Property Collateral of any Grantor, the goodwill symbolized
by any Trademarks subject to such sale or other disposition shall be
included therein, and such Grantor shall supply to the Administrative
Agent or its designee such Grantor's know-how and expertise, and documents
and things relating to any Intellectual Property Collateral subject to
such sale or other disposition, and such Grantor's customer lists and
other records and documents relating to such Intellectual Property
Collateral and to the manufacture, distribution, advertising and sale of
products and services of such Grantor.
(f) The Administrative Agent is authorized, in connection with any
sale of the Security Collateral pursuant to this Section 21, to deliver or
otherwise disclose to any prospective purchaser of the Security Collateral
any information in its possession relating to such Security Collateral.
Section 22. Indemnity and Expenses. (a) Whether or not the
transactions contemplated hereby are consummated, each Grantor shall indemnify
and hold each Indemnitee harmless from and against any and all liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, charges, expenses and disbursements (including the fees, charges
and disbursements of any counsel for any Indemnitee) of any kind or nature
whatsoever (excluding costs and expenses specifically referred to in Section
11.04) of the Credit Agreement which may at any time (including at any time
following repayment of the Loans, the termination of the Letters of Credit and
the termination, resignation or replacement of any Agent or replacement of any
Lender) be imposed on, incurred by or asserted against any such Indemnitee in
any way relating to or arising out of or in connection with the execution,
delivery, enforcement, performance or administration of this Agreement or any
other agreement, letter or instrument delivered in connection with the
transactions contemplated hereby or the consummation of the transactions
contemplated hereby or any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "INDEMNIFIED LIABILITIES"), in all cases, whether
or not caused by or arising, in whole or in part, out of the negligence of any
Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such Indemnified Liabilities are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted directly and primarily from the gross negligence or willful misconduct
of such Indemnified Person. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for
any indirect or consequential damages relating to this Agreement or any other
Loan Document or arising out of its activities in connection herewith or
therewith (whether before or after the date hereof). In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 22 applies,
Del Monte Security Agreement
25
such indemnity shall be effective whether or not such investigation, litigation
or proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnitee or any other Person, whether or not an Indemnitee is
otherwise a party thereto and whether or not any of the transactions
contemplated hereunder or under any of the other Loan Documents are consummated.
All amounts due under this Section 22 shall be payable within ten Business Days
after demand therefor. The agreements in this Section shall survive the
resignation of any Agent, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other
Obligations. Each Agent-Related Person and each Lender agrees that in the event
that any investigation, litigation or proceeding is asserted or threatened in
writing or instituted against it or any other Indemnitee, or any remedial,
removal or response action which is requested of it or any other Indemnitee, for
which any Agent-Related Person or Lender may desire indemnity or defense
hereunder, such Agent-Related Person or such Lender shall notify the Company in
writing of such event; provided that failure to so notify the Company shall not
affect the right of any Agent-Related Person or Lender to seek indemnification
under this Section.
(b) Each Grantor will upon demand pay to the Administrative Agent
the amount of any and all reasonable expenses, including, without limitation,
the reasonable fees and expenses of its counsel and of any experts and agents,
that the Administrative Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from or other realization upon, any of
the Collateral of such Grantor, (iii) the exercise or enforcement of any of the
rights of the Administrative Agent or the other Secured Parties hereunder or
(iv) the failure by such Grantor to perform or observe any of the provisions
hereof.
Section 23. Amendments; Waivers; Additional Grantors; Etc. (a) No
amendment or waiver of any provision of this Agreement, and no consent to any
departure by any Grantor herefrom, shall in any event be effective unless the
same shall be in writing and signed by the Administrative Agent, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. No failure on the part of any Secured Party to
exercise, and no delay in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
(b) Upon the execution and delivery by any Person of a security
agreement supplement in substantially the form of Exhibit A hereto (each a
"SECURITY AGREEMENT SUPPLEMENT"), such Person shall be referred to as an
"ADDITIONAL GRANTOR" and shall be and become a Grantor hereunder, and each
reference in this Agreement and the other Loan Documents to "Grantor" shall also
mean and be a reference to such Additional Grantor, and each reference in this
Agreement and the other Loan Documents to the "Collateral" shall also mean and
be a reference to the Collateral granted by such Additional Grantor and each
reference in this Agreement to a Schedule shall also mean and be a reference to
the schedules attached to such Security Agreement Supplement.
Del Monte Security Agreement
26
Section 24. Notices, Etc. (a) Unless otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including by facsimile transmission). All such written notices shall be
mailed, faxed or delivered, if to any Grantor, addressed to it at the address,
facsimile number or (subject to subsection (c) below), electronic mail address
set forth opposite its name on the signature pages hereof, if to any Agent or
any Lender, at its address, facsimile number or (subject to subsection (c)
below), electronic mail address specified in Section 11.02 of the Credit
Agreement, if to any Hedge Bank party to any Secured Hedge Agreement, at its
address, facsimile number or (subject to subsection (c) below), electronic mail
address specified in the Secured Hedge Agreement to which it is a party, or, as
to any party, at such other address as shall be designated by such party in a
written notice to each other party. All such notices and other communications
shall be deemed to be given or made upon the earlier to occur of (i) actual
receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if
delivered by mail, four Business Days after deposit in the mails, postage
prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed
by telephone; and (D) if delivered by electronic mail (which form of delivery is
subject to the provisions of subsection (c) below), when delivered. In no event
shall a voicemail message be effective as a notice, communication or
confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. This
Agreement may be transmitted and/or signed by facsimile. The effectiveness of
such document and signatures shall, subject to applicable law, have the same
force and effect as manually signed original and shall be binding on each
Grantor. The Administrative Agent may also require that any such document and
signatures be confirmed by a manually-signed original thereof; provided,
however, that the failure to request or deliver the same shall not limit the
effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Notices and other
communications to the Administrative Agent hereunder may be delivered or
furnished by electronic communications (including e-mail and internet or
intranet websites) pursuant to procedures approved by the Administrative Agent
and each Grantor. The Administrative Agent or any Grantor may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
Section 25. Continuing Security Interest; Assignments Under the
Credit Agreement. This Agreement shall create a continuing security interest in
the Collateral and shall (a) remain in full force and effect until the latest of
(i) the payment in full in cash of the Secured Obligations (other than the Cash
Management Obligations), (ii) the termination in full of the Commitments and
(iii) the termination or expiration of all Letters of Credit and all Secured
Hedge Agreements (or, in the case of Letters of Credit, the cash
collateralization thereof in an amount equal to 105% of the face value thereof),
(b) be binding upon each Grantor, its successors and assigns and (c) inure,
together with the rights and remedies of the Administrative Agent hereunder, to
the benefit of the Secured Parties and their respective successors, transferees
and assigns. Without limiting the generality of the foregoing clause (c), any
Lender may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitments, the Loans owing to it and
Del Monte Security Agreement
27
the Note or Notes, if any, held by it) to any other Person, and such other
Person shall thereupon become vested with all the benefits in respect thereof
granted to such Lender herein or otherwise, in each case as provided in Section
11.06 of the Credit Agreement.
Section 26. Release; Termination. (a) (x) Upon any sale, lease,
transfer or other disposition of any item of Collateral of any Grantor in
accordance with the terms of the Loan Documents (other than sales of Inventory
in the ordinary course of business), and (y) upon the occurrence of the
Collateral Release Date, the Administrative Agent will, at such Grantor's
expense, execute and deliver to such Grantor such documents as such Grantor
shall reasonably request to evidence the release of such item of Collateral from
the assignment and security interest granted hereby; provided, however, that, in
the case of a release pursuant to clause (x) above, (i) such Grantor shall have
delivered to the Administrative Agent, at least five Business Days prior to the
date of the proposed release, a certificate of such Grantor to the effect that
the transaction is in compliance with the Loan Documents together with a form of
release for execution by the Administrative Agent and (ii) the proceeds of any
such sale, lease, transfer or other disposition required to be applied, or any
payment to be made in connection therewith, in accordance with Section 2.05 of
the Credit Agreement shall, to the extent so required, be paid or made to, or in
accordance with the instructions of, the Administrative Agent when and as
required under Section 2.05 of the Credit Agreement. In addition, after December
31, 2005, the Administrative Agent agrees to release the security interest
granted hereunder by those Grantors that are Subsidiaries of the Borrower, and
to execute and deliver (at the Borrower's expense) all documents or other
instruments that the Borrower shall reasonably request to evidence such
termination and release, so long as at such time (x) no Default or Event of
Default has occurred and is continuing, (y) no such Grantor qualifies as a
Material Subsidiary and all such Grantors taken together as one entity would not
qualify as a Material Subsidiary and (z) the guaranty of such Grantors in favor
of the holders of any Subordinated Notes will be terminated simultaneously
therewith, subject to receipt by the Administrative Agent of a certificate of a
Responsible Officer of the Borrower as to the satisfaction of the conditions set
forth in the preceding clauses (x), (y) and (z), showing the calculations used
in determining compliance with clause (y). Notwithstanding any other provision
herein to the contrary, upon the consummation of any Qualified Receivables
Transaction (including without limitation any sales, conveyances or other
transfers of Receivables Program Assets thereunder), the security interest
granted hereunder in any Receivables Program Assets subject to such Qualified
Receivables Transaction shall be automatically released.
(b) Upon the latest of (i) the payment in full in cash of the
Secured Obligations, (ii) the termination in full of the Commitments and (iii)
the termination or expiration of all Letters of Credit and all Secured Hedge
Agreements (or, in the case of Letters of Credit, the Cash Collateralization
thereof in an amount equal to 105% of the face value thereof), the pledge and
security interest granted hereby shall terminate and all rights to the
Collateral shall revert to the applicable Grantor. Upon any such termination,
the Administrative Agent will, at the applicable Grantor's expense, execute and
deliver to such Grantor such documents as such Grantor shall reasonably request
to evidence such termination.
Section 27. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
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28
Section 28. The Mortgages. In the event that any of the Collateral
hereunder is also subject to a valid and enforceable Lien under the terms of any
Mortgage and the terms of such Mortgage are inconsistent with the terms of this
Agreement, then with respect to such Collateral, the terms of such Mortgage
shall be controlling in the case of fixtures and real estate leases, letting and
licenses of, and contracts and agreements relating to the lease of, real
property, and the terms of this Agreement shall be controlling in the case of
all other Collateral.
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Section 29. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, each Grantor has caused this Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
DEL MONTE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Senior Vice President and
Treasurer
Address for Notices: DEL MONTE FOODS COMPANY
One Market @ The Landmark
Xxx Xxxxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Senior Vice President and
Treasurer
Address for Notices: XXXX MAC IHC, INC.
One Market @ The Landmark
Xxx Xxxxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Vice President, Chief Financial
and Treasurer
Address for Notices: STAR-XXXX SAMOA, INC.
One Market @ The Landmark
Xxx Xxxxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Vice President, Chief Financial
and Treasurer
Address for Notices: MARINE TRADING PACIFIC, INC.
One Market @ The Landmark
Xxx Xxxxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Vice President, Chief Financial
and Treasurer
Del Monte Security Agreement
30
Address for Notices: STAR-XXXX MAURITIUS, INC.
One Market @ The Landmark
Xxx Xxxxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Vice President, Chief Financial
and Treasurer
Del Monte Security Agreement
31
SCHEDULE I TO THE
SECURITY AGREEMENT
LOCATION, CHIEF EXECUTIVE OFFICE, PLACE WHERE AGREEMENTS ARE
MAINTAINED, TYPE OF ORGANIZATION, JURISDICTION OF ORGANIZATION AND
ORGANIZATIONAL IDENTIFICATION NUMBER
CHIEF PLACE WHERE JURISDICTION ORGANIZAT-
EXECUTIVE AGREEMENTS ARE TYPE OF OF IONAL
GRANTOR LOCATION OFFICE MAINTAINED ORGANIZATION ORGANIZATION I.D. NO.
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Del Monte Security Agreement Schedule I
SCHEDULE II TO THE
SECURITY AGREEMENT
PLEDGED EQUITY AND PLEDGED DEBT
PART I
PERCENTAGE
CLASS OF OF
EQUITY CERTIFICATE NUMBER OUTSTANDING
GRANTOR ISSUER INTEREST PAR VALUE NO(S) OF SHARES SHARES
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PART II
DESCRIPTION OUTSTANDING
DEBT OF DEBT CERTIFICATE FINAL PRINCIPAL
GRANTOR ISSUER DEBT NO(S). MATURITY AMOUNT
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Del Monte Security Agreement Schedule II
SCHEDULE III TO THE
SECURITY AGREEMENT
LOCATIONS OF EQUIPMENT AND INVENTORY
[NAME OF GRANTOR]
LOCATIONS OF EQUIPMENT:
LOCATIONS OF INVENTORY:
[NAME OF GRANTOR]
LOCATIONS OF EQUIPMENT:
LOCATIONS OF INVENTORY:
[ETC.]
Del Monte Security Agreement Schedule III
SCHEDULE IV TO THE
SECURITY AGREEMENT
CHANGES IN NAME, LOCATION, ETC.
CHANGES IN THE GRANTOR'S NAME (INCLUDING NEW GRANTOR WITH A NEW NAME AND NAMES
ASSOCIATED WITH ALL PREDECESSORS IN INTEREST OF THE GRANTOR)
CHANGES IN THE GRANTOR'S LOCATION
CHANGES IN THE GRANTOR'S CHIEF EXECUTIVE OFFICE
CHANGES IN THE LOCATION OF EQUIPMENT AND INVENTORY
CHANGES IN THE PLACE WHERE AGREEMENTS ARE MAINTAINED
CHANGES IN THE TYPE OF ORGANIZATION
CHANGES IN THE JURISDICTION OF ORGANIZATION
CHANGES IN THE ORGANIZATIONAL IDENTIFICATION NUMBER
Del Monte Security Agreement Schedule IV
SCHEDULE V TO THE
SECURITY AGREEMENT
INTELLECTUAL PROPERTY
I. PATENTS
PATENT
GRANTOR TITLES COUNTRY PATENT NO. APPLIC. NO. FILING DATE ISSUE DATE
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II. DOMAIN NAMES AND TRADEMARKS
REG. APPLIC. FILING ISSUE
GRANTOR DOMAIN NAME/XXXX COUNTRY XXXX NO. NO. DATE DATE
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III. TRADE NAMES
NAMES
IV. COPYRIGHTS
REG. APPLIC. FILING ISSUE
GRANTOR TITLE OF WORK COUNTRY TITLE NO. NO. DATE DATE
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V. IP AGREEMENTS
GRANTOR IP AGREEMENTS
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Del Monte Security Agreement Schedule V
SCHEDULE VI TO THE
SECURITY AGREEMENT
Part I - Securities Accounts
Part II - Commodities Accounts
Del Monte Security Agreement Schedule VI
SCHEDULE VII TO THE
SECURITY AGREEMENT
COMMERCIAL TORT CLAIMS
[Describe nature of claim(s)-see Comment 5 to UCC Section 9-108]
Del Monte Security Agreement Schedule VII
SCHEDULE VIII TO THE
SECURITY AGREEMENT
LETTERS OF CREDIT
ACCOUNT PARTY ISSUER NOMINATED PERSON BENEFICIARY DATE
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Del Monte Security Agreement Schedule VIII
EXHIBIT A TO THE
SECURITY AGREEMENT
FORM OF SECURITY AGREEMENT SUPPLEMENT
[Date of Security Agreement Supplement]
Bank of America, N.A. ("BANK OF AMERICA"),
as the Administrative Agent for the
Secured Parties referred to in the
Credit Agreement referred to below
____________________________
____________________________
Attn: ___________________
Del Monte Corporation
Ladies and Gentlemen:
Reference is made to (i) the Credit Agreement dated as of February
8, 2005 (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"), among Del Monte Corporation, a
Delaware corporation, as the Borrower, Del Monte Foods Company, a Delaware
corporation, the Lenders party thereto, Bank of America, N.A. ("BANK OF
AMERICA"), as administrative agent, swing line lender and l/c issuer, Xxxxxx
Xxxxxxx Senior Funding, Inc., as syndication agent and JPMorgan Chase Bank,
Xxxxxx Trust and Savings Bank and Suntrust Bank, as co-documentation agents and
(ii) the Security Agreement dated February 8, 2005 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "SECURITY
AGREEMENT") made by the Grantors from time to time party thereto in favor of
Bank of America, as Administrative Agent (together with any successor
Administrative Agent appointed pursuant to Article IX of the Credit Agreement,
the "ADMINISTRATIVE AGENT") for the Secured Parties. Terms defined in the Credit
Agreement or the Security Agreement and not otherwise defined herein are used
herein as defined in the Credit Agreement or the Security Agreement.
SECTION 1. Grant of Security. The undersigned hereby grants to the
Administrative Agent, for the ratable benefit of the Secured Parties, a security
interest in, all of its right, title and interest in and to all of the
Collateral of the undersigned, whether now owned or hereafter acquired by the
undersigned, wherever located and whether now or hereafter existing or arising,
including, without limitation, the property and assets of the undersigned set
forth on the attached supplemental schedules to the Schedules to the Security
Agreement.
SECTION 2. Security for Obligations. The grant of a security
interest in, the Collateral by the undersigned under this Security Agreement
Supplement and the Security Agreement secures the payment of all Obligations of
the undersigned now or hereafter existing
Del Monte Security Agreement Exhibit A - Form of Security Agreement Supplement
under or in respect of the Loan Documents or the Secured Hedge Agreements,
whether direct or indirect, absolute or contingent, and whether for principal,
reimbursement obligations, interest, premiums, penalties, fees,
indemnifications, contract causes of action, costs, expenses or otherwise.
SECTION 3. Supplements to Security Agreement Schedules. The
undersigned has attached hereto supplemental Schedules I through VIII to
Schedules I through VIII, respectively, to the Security Agreement, and the
undersigned hereby certifies, as of the date first above written, that such
supplemental schedules are complete and correct in all material respects.
SECTION 4. Representations and Warranties. The undersigned hereby
makes each representation and warranty set forth in Section 8 of the Security
Agreement (as supplemented by the attached supplemental schedules) to the same
extent as each other Grantor.
SECTION 5. Obligations Under the Security Agreement. The undersigned
hereby agrees, as of the date first above written, to be bound as a Grantor by
all of the terms and provisions of the Security Agreement to the same extent as
each of the other Grantors. The undersigned further agrees, as of the date first
above written, that each reference in the Security Agreement to an "Additional
Grantor" or a "Grantor" shall also mean and be a reference to the undersigned.
SECTION 6. Governing Law. This Security Agreement Supplement shall
be governed by, and construed in accordance with, the laws of the State of New
York.
Very truly yours,
[NAME OF ADDITIONAL GRANTOR]
By _______________________________
Title:
Address for notices:
_______________________
_______________________
_______________________
Del Monte Security Agreement Exhibit A - Form of Security Agreement
Supplement
A-2
EXHIBIT B TO THE
SECURITY AGREEMENT
FORM OF CONSENT AND AGREEMENT
The undersigned hereby (a) acknowledges notice of, and consents to
the terms and provisions of, the Security Agreement dated February 8, 2005 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "SECURITY AGREEMENT", the terms defined therein being used herein as
therein defined) from ____________________ (the "GRANTOR") and certain other
grantors from time to time party thereto to Bank of America, N.A., as
Administrative Agent (the "ADMINISTRATIVE AGENT") for the Secured Parties
referred to therein, (b) consents in all respects to the pledge and assignment
to the Administrative Agent of all of the Grantor's right, title and interest
in, to and under the Assigned Agreement (as defined below) pursuant to the
Security Agreement, (c) acknowledges that the Grantor has provided it with
notice of the right of the Administrative Agent in the exercise of its rights
and remedies under the Security Agreement to make all demands, give all notices,
take all actions and exercise all rights of the Grantor under the Assigned
Agreement, and (d) agrees with the Administrative Agent that:
(1) A true copy of the agreement between the undersigned and the
Grantor dated ____________, ____ (the "ASSIGNED AGREEMENT"), including,
without limitation, all amendments, modifications, restatements and
supplements is attached hereto as Schedule 1. The Assigned Agreement is in
full force and effect, and the undersigned is not aware of any default
under the Assigned Agreement or any event that would give any party the
right to terminate or rescind the Assigned Agreement. No prepayments have
been made of any amounts to become due under the Assigned Agreement.
(2) The Administrative Agent or its designee shall be entitled to
exercise any and all rights and remedies of the Grantor under the Assigned
Agreement in accordance with the terms of the Security Agreement, and the
undersigned shall comply in all respects with such exercise.
(3) The undersigned will not, without providing at least 30 days'
prior notice to the Administrative Agent, cancel or terminate the Assigned
Agreement or consent to or accept any cancellation or termination thereof.
(4) In the event of a default by the Grantor in the performance of
any of its obligations under the Assigned Agreement, or upon the
occurrence or non-occurrence of any event or condition under the Assigned
Agreement which would immediately or with the passage of any applicable
grace period or the giving of notice, or both, enable the undersigned to
terminate or suspend its obligations under the Assigned Agreement, the
undersigned shall not terminate the Assigned Agreement until it first
gives the Administrative Agent written notice of the default and permits
the Administrative Agent to cure the default within a period of 90 days
after the later of (i) notice of default having been given to the
Administrative Agent by the undersigned and (ii) the expiration of the
applicable cure period provided in the Assigned Agreement for the Grantor
to cure the default.
Del Monte Security Agreement Exhibit B - Form of Consent and Agreement
(5) The undersigned shall deliver to the Administrative Agent,
concurrently with the delivery thereof to the Grantor, a copy of each
notice, request or demand given by the undersigned pursuant to the
Assigned Agreement.
(6) Except as specifically provided in this Consent and Agreement,
neither the Administrative Agent nor any other Secured Party shall have
any liability or obligation under the Assigned Agreement as a result of
this Consent and Agreement, the Security Agreement or otherwise.
(7) Upon the enforcement of the Security Agreement by the
Administrative Agent and the transfer of the Assigned Agreement to a
transferee, the undersigned will recognize the transferee as the
counterparty to the Assigned Agreement in the place and stead of the
Grantor.
This Consent and Agreement shall be binding upon the undersigned and
its successors and assigns, and shall inure, together with the rights and
remedies of the Administrative Agent hereunder, to the benefit of the Secured
Parties and their successors, transferees and assigns. This Consent and
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, the undersigned has duly executed this Consent
and Agreement as of the date set opposite its name below.
Dated: _______________, ____ [NAME OF OBLIGOR]
By _____________________________
Title:
Del Monte Security Agreement Exhibit B - Form of Consent and Agreement
B-2
EXHIBIT C TO THE
SECURITY AGREEMENT
FORM OF SECURITIES ACCOUNT CONTROL AGREEMENT
CONTROL AGREEMENT dated as of ________, ____, among____________, a
___________ (the "GRANTOR"), Bank of America, N.A., as Administrative Agent (the
"SECURED PARTY"), and _________, a _________ ("____________"), as securities
intermediary (the "SECURITIES INTERMEDIARY").
PRELIMINARY STATEMENTS:
(1) The Grantor has granted the Secured Party a security interest
(the "SECURITY INTEREST") in account no. _______________ maintained by the
Securities Intermediary for the Grantor (the "ACCOUNT").
(2) Terms defined in Article 8 or 9 of the Uniform Commercial Code
in effect in the State of New York ("N.Y. UNIFORM COMMERCIAL CODE") are used in
this Agreement as such terms are defined in such Article 8 or 9.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto hereby agree as follows:
SECTION 1. The Account. The Grantor and Securities Intermediary
represent and warrant to, and agree with, the Grantor and the Secured Party
that:
(a) The Securities Intermediary maintains the Account for the
Grantor, and all property held by the Securities Intermediary for the
account of the Grantor is, and will continue to be, credited to the
Account.
(b) The Account is a securities account. The Securities Intermediary
is the securities intermediary with respect to the property credited from
time to time to the Account. The Grantor is the entitlement holder with
respect to the property credited from time to time to the Account.
(c) The State of New York is, and will continue to be, the
Securities Intermediary's jurisdiction of organization for purposes of
Section 8-110(e) of the UCC so long as the Security Interest shall remain
in effect.
(d) Exhibit A attached hereto is a statement of the property
credited to the Account on the date hereof.
(e) The Grantor and Securities Intermediary do not know of any claim
to or interest in the Account or any property credited to the Account,
except for claims and interests of the parties referred to in this
Agreement.
Del Monte Security Agreement Exhibit C - Form of Securities Account Control
Agreement
SECTION 2. Control by Secured Party. The Securities Intermediary
will comply with all notifications it receives directing it to transfer or
redeem any property in the Account (each an "ENTITLEMENT ORDER") or other
directions concerning the Account (including, without limitation, directions to
distribute to the Secured Party proceeds of any such transfer or redemption or
interest or dividends on property in the Account) originated by the Secured
Party without further consent by the Grantor or any other person.
SECTION 3. Grantor's Rights in Account.
(a) Except as otherwise provided in this Section 3, the Securities
Intermediary will comply with Entitlement Orders originated by the Grantor
without further consent by the Secured Party.
(b) Until the Securities Intermediary receives a notice from the
Secured Party that the Secured Party will exercise exclusive control over the
Account (a "Notice of Exclusive Control"), the Securities Intermediary may
distribute to the Grantor all interest and regular cash dividends on property in
the Account.
(c) If the Securities Intermediary receives from the Secured Party a
Notice of Exclusive Control, the Securities Intermediary will cease:
(i) complying with Entitlement Orders or other directions concerning
the Account originated by the Grantor and
(ii) distributing to the Grantor interest and dividends on property
in the Account.
SECTION 4. Priority of Secured Party's Security Interest. (a) The
Securities Intermediary subordinates in favor of the Secured Party any security
interest, lien, or right of setoff it may have, now or in the future, against
the Account or property in the Account, except that the Securities Intermediary
will retain its prior lien on property in the Account to secure payment for
property purchased for the Account and normal commissions and fees for the
Account.
(b) The Securities Intermediary will not agree with any Person not
party to this Agreement that the Securities Intermediary will comply with
Entitlement Orders originated by such Person.
SECTION 5. Statements, Confirmations, and Notices of Adverse Claims.
(a) The Securities Intermediary will send copies of all statements and
confirmations for the Account simultaneously to the Grantor and the Secured
Party.
(b) When the Securities Intermediary knows of any claim or interest
in the Account or any property credited to the Account other than the claims and
interests of the parties referred to in this Agreement, the Securities
Intermediary will promptly notify the Secured Party and the Grantor of such
claim or interest.
Del Monte Security Agreement Exhibit C - Form of Securities Account Control
Agreement
C-2
SECTION 6. The Securities Intermediary's Responsibility. (a) Except
for permitting a withdrawal, delivery, or payment in violation of Section 3, the
Securities Intermediary will not be liable to the Secured Party for complying
with Entitlement Orders or other directions concerning the Account from the
Grantor that are received by the Securities Intermediary before the Securities
Intermediary receives and has a reasonable opportunity to act on a Notice of
Exclusive Control.
(b) The Securities Intermediary will not be liable to the Grantor or
the Secured Party for complying with a Notice of Exclusive Control or with an
Entitlement Order or other direction concerning the Account originated by the
Secured Party, even if the Grantor notifies the Securities Intermediary that the
Secured Party is not legally entitled to issue the Notice of Exclusive Control
or Entitlement Order or such other direction unless the Securities Intermediary
takes the action after it is served with an injunction, restraining order, or
other legal process enjoining it from doing so, issued by a court of competent
jurisdiction, and had a reasonable opportunity to act on the injunction,
restraining order or other legal process.
(c) This Agreement does not create any obligation of the Securities
Intermediary except for those expressly set forth in this Agreement and in Part
5 of Article 8 of the N.Y. Uniform Commercial Code. In particular, the
Securities Intermediary need not investigate whether the Secured Party is
entitled under the Secured Party's agreements with the Grantor or Secured Party
to give an Entitlement Order or other direction concerning the Account or a
Notice of Exclusive Control. The Securities Intermediary may rely on notices and
communications it believes given by the appropriate party.
SECTION 7. Indemnity. The Grantor will indemnify the Securities
Intermediary, its officers, directors, employees and agents against claims,
liabilities and expenses arising out of this Agreement (including, without
limitation, reasonable attorney's fees and disbursements), except to the extent
the claims, liabilities or expenses are caused by the Securities Intermediary's
gross negligence or willful misconduct.
SECTION 8. Termination; Survival. (a) The Secured Party may
terminate this Agreement by notice to the Securities Intermediary and the
Grantor. If the Secured Party notifies the Securities Intermediary that the
Security Interest has terminated, this Agreement will immediately terminate.
(b) The Securities Intermediary may terminate this Agreement on 60
days' prior notice to the Secured Party and the Grantor, provided that before
such termination the Securities Intermediary and the Grantor shall make
arrangements to transfer the property in the Account to another securities
intermediary that shall have executed, together with the Grantor, a control
agreement in favor of the Secured Party in respect of such property in
substantially the form of this Agreement or otherwise in form and substance
satisfactory to the Secured Party.
(c) Sections 6 and 7 will survive termination of this Agreement.
SECTION 9. Governing Law. This Agreement and the Account will be
governed by the law of the State of New York. The Securities Intermediary and
the Grantor may
Del Monte Security Agreement Exhibit C - Form of Securities Account Control
Agreement
C-3
not change the law governing the Account without the Secured Party's express
prior written agreement.
SECTION 10. Entire Agreement. This Agreement is the entire
agreement, and supersedes any prior agreements, and contemporaneous oral
agreements, of the parties concerning its subject matter.
SECTION 11. Amendments. No amendment of, or waiver of a right under,
this Agreement will be binding unless it is in writing and signed by the party
to be charged.
SECTION 12. Financial Assets. The Securities Intermediary agrees
with the Secured Party and the Grantor that, to the fullest extent permitted by
applicable law, all property credited from time to time to the Account will be
treated as financial assets under Article 8 of the N.Y. Uniform Commercial Code.
SECTION 13. Notices. A notice or other communication to a party
under this Agreement will be in writing (except that Entitlement Orders may be
given orally), will be sent to the party's address set forth under its name
below or to such other address as the party may notify the other parties and
will be effective on receipt.
SECTION 14. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Grantor, the Secured Party, and the
Securities Intermediary, and thereafter shall be binding upon and inure to the
benefit of the Grantor, the Secured Party and the Securities Intermediary and
their respective successors and assigns.
SECTION 15. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
[NAME OF GRANTOR]
By ____________________________
Title:
Address:
_______________________________
________________________________
Del Monte Security Agreement Exhibit C - Form of Securities Account Control
Agreement
C-4
BANK OF AMERICA, N.A., as
Administrative Agent
By ______________________________
Title:
Address:
___________________________________
___________________________________
[NAME OF SECURITIES
INTERMEDIARY]
By ________________________________
Title:
Address:
___________________________________
___________________________________
Del Monte Security Agreement Exhibit C - Form of Securities Account Control
Agreement
c-5
EXHIBIT D TO THE
SECURITY AGREEMENT
FORM OF COMMODITY ACCOUNT CONTROL AGREEMENT
CONTROL AGREEMENT dated as of ________, ____, among____________, a
___________ (the "GRANTOR"), Bank of America, N.A., as Administrative Agent (the
"SECURED PARTY"), and _________, a _________ ("____________"), as commodity
intermediary (the "COMMODITY INTERMEDIARY").
PRELIMINARY STATEMENTS:
(1) The Grantor has granted the Secured Party a security interest
(the "SECURITY INTEREST") in account no. _______________ maintained by the
Commodity Intermediary for the Grantor (the "Account").
(2) Terms defined in Article 8 or 9 of the Uniform Commercial Code
in effect in the State of New York ("N.Y. UNIFORM COMMERCIAL CODE") are
used in this Agreement as such terms are defined in such Article 8 or 9.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto hereby agree as follows:
SECTION 1. The Account. The Grantor and the Commodity Intermediary
represent and warrant to, and agree with, the Grantor and the Secured Party
that:
(a) The Commodity Intermediary maintains the Account for the
Grantor, and all commodity contracts held by the Commodity Intermediary
for the account of the Grantor is, and will continue to be, carried in the
Account.
(b) The Account is a commodity account. The Commodity Intermediary
is the commodity intermediary with respect to the commodity contracts
carried from time to time in the Account. The Grantor is the commodity
customer with respect to the commodity contracts carried from time to time
in the Account.
(c) The State of New York is, and will continue to be, the Commodity
Intermediary's jurisdiction of organization for purposes of Section
9-305(b) of the UCC so long as the Security Interest shall remain in
effect.
(d) Exhibit A attached hereto is a statement of the commodity
contracts carried in the Account on the date hereof.
(e) The Grantor and Commodity Intermediary do not know of any claim
to or interest in the Account or any commodity contract carried in the
Account, except for claims and interests of the parties referred to in
this Agreement.
Del Monte Security Agreement Exhibit D - Form of Commodities Account Control
Agreement
SECTION 2. Control by Secured Party. The Commodity Intermediary will
comply with all notifications it receives directing it to apply any value
distributed on account of any commodity contract or contracts carried in the
Account (each an "ENTITLEMENT ORDER") or other directions concerning the Account
originated by the Secured Party without further consent by the Grantor or any
other person.
SECTION 3. Grantor's Rights in Account.
(a) Except as otherwise provided in this Section 3, the Commodity
Intermediary will comply with Entitlement Orders originated by the Grantor
without further consent by the Secured Party.
(b) Until the Commodity Intermediary receives a notice from the
Secured Party that the Secured Party will exercise exclusive control over the
Account (a "NOTICE OF EXCLUSIVE CONTROL"), the Commodity Intermediary may act on
any directions originated by the Grantor concerning the Account.
(c) If the Commodity Intermediary receives from the Secured Party a
Notice of Exclusive Control, the Commodity Intermediary will cease:
(i) complying with Entitlement Orders or other directions concerning
the Account originated by the Grantor and
(ii) distributing to the Grantor any value distributed on account of
any commodity contract carried in the Account.
SECTION 4. Priority of Secured Party's Security Interest. (a) The
Commodity Intermediary subordinates in favor of the Secured Party any security
interest, lien, or right of setoff it may have, now or in the future, against
the Account or commodity contracts carried in the Account, except that the
Commodity Intermediary will retain its prior lien on commodity contracts in the
Account to secure payment for commodity contracts purchased for the Account and
normal commissions and fees for the Account.
(b) The Commodity Intermediary will not agree with any third party
that the Commodity Intermediary will comply with Entitlement Orders originated
by the third party.
SECTION 5. Statements, Confirmations, and Notices of Adverse Claims.
(a) The Commodity Intermediary will send copies of all statements and
confirmations for the Account simultaneously to the Grantor and the Secured
Party.
(b) When the Commodity Intermediary knows of any claim or interest
in the Account or any commodity contracts carried in the Account other than the
claims and interests of the parties referred to in this Agreement, the Commodity
Intermediary will promptly notify the Secured Party and the Grantor of such
claim or interest.
SECTION 6. The Commodity Intermediary's Responsibility. (a) The
Commodity Intermediary will not be liable to the Secured Party for complying
with Entitlement Orders or other directions concerning the Account from the
Grantor that are received by the
Del Monte Security Agreement Exhibit D - Form of Commodities Account Control
Agreement
D-2
Commodity Intermediary before the Commodity Intermediary receives and has a
reasonable opportunity to act on a Notice of Exclusive Control.
(b) The Commodity Intermediary will not be liable to the Grantor for
complying with a Notice of Exclusive Control or with an Entitlement Order or
other direction concerning the Account originated by the Secured Party, even if
the Grantor notifies the Commodity Intermediary that the Secured Party is not
legally entitled to issue the Notice of Exclusive Control or Entitlement Order
or such other direction unless the Commodity Intermediary takes the action after
it is served with an injunction, restraining order, or other legal process
enjoining it from doing so, issued by a court of competent jurisdiction, and had
a reasonable opportunity to act on the injunction, restraining order or other
legal process.
(c) This Agreement does not create any obligation of the Commodity
Intermediary except for those expressly set forth in this Agreement. In
particular, the Commodity Intermediary need not investigate whether the Secured
Party is entitled under the Secured Party's agreements with the Grantor to give
an Entitlement Order or other direction concerning the Account or a Notice of
Exclusive Control. The Commodity Intermediary may rely on notices and
communications it believes given by the appropriate party.
SECTION 7. Indemnity. The Grantor will indemnify the Commodity
Intermediary, its officers, directors, employees and agents against claims,
liabilities and expenses arising out of this Agreement (including, without
limitation, reasonable attorney's fees and disbursements), except to the extent
the claims, liabilities or expenses are caused by the Commodity Intermediary's
gross negligence or willful misconduct.
SECTION 8. Termination; Survival. (a) The Secured Party may
terminate this Agreement by notice to the Commodity Intermediary and the
Grantor. If the Secured Party notifies the Commodity Intermediary that the
Security Interest has terminated, this Agreement will immediately terminate.
(b) The Commodity Intermediary may terminate this Agreement on 60
days' prior notice to the Secured Party and the Grantor, provided that before
such termination the Commodity Intermediary and the Grantor shall make
arrangements to transfer the commodity contracts carried in the Account to
another commodity intermediary that shall have executed, together with the
Grantor, a control agreement in favor of the Secured Party in respect of such
commodity contracts in substantially the form of this Agreement or otherwise in
form and substance satisfactory to the Secured Party.
(c) Sections 6 and 7 will survive termination of this Agreement.
SECTION 9. Governing Law. This Agreement and the Account will be
governed by the law of the State of New York. The Commodity Intermediary and the
Grantor may not change the law governing the Account without the Secured Party's
express prior written agreement.
SECTION 10. Entire Agreement. This Agreement is the entire
agreement, and supersedes any prior agreements, and contemporaneous oral
agreements, of the parties concerning its subject matter.
Del Monte Security Agreement Exhibit D - Form of Commodities Account Control
Agreement
D-3
SECTION 11. Amendments. No amendment of, or waiver of a right under,
this Agreement will be binding unless it is in writing and signed by the party
to be charged.
SECTION 12. Commodity Contracts. The Commodity Intermediary agrees
with the Secured Party and the Grantor that, to the fullest extent permitted by
applicable law, all property carried from time to time in the Account will be
treated as commodity contracts under Article 8 of the N.Y. Uniform Commercial
Code.
SECTION 13. Notices. A notice or other communication to a party
under this Agreement will be in writing (except that Entitlement Orders may be
given orally), will be sent to the party's address set forth under its name
below or to such other address as the party may notify the other parties and
will be effective on receipt.
SECTION 14. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Grantor, the Secured Party and the
Commodity Intermediary, and thereafter shall be binding upon and inure to the
benefit of the Grantor, the Secured Party and the Commodity Intermediary and
their respective successors and assigns.
SECTION 15. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
[NAME OF GRANTOR]
By _____________________________
Title:
Address:
_________________________________
_________________________________
Del Monte Security Agreement Exhibit D - Form of Commodities Account Control
Agreement
D-4
BANK OF AMERICA, N.A., as
Administrative Agent
By _________________________________
Title:
Address:
_________________________________
_________________________________
[NAME OF COMMODITY
INTERMEDIARY]
By _________________________________
Title:
Address:
_________________________________
_________________________________
Del Monte Security Agreement Exhibit D - Form of Commodities Account Control
Agreement
D-5
EXHIBIT E TO THE
SECURITY AGREEMENT
FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT (as amended, amended
and restated, supplemented or otherwise modified from time to time, the "IP
SECURITY AGREEMENT") dated ________, ____, is made by the Persons listed on the
signature pages hereof (collectively, the "GRANTORS") in favor of Bank of
America, N.A. ("BANK OF AMERICA"), as Administrative Agent (the "ADMINISTRATIVE
AGENT") for the Secured Parties (as defined in the Credit Agreement referred to
below).
WHEREAS, Del Monte Corporation, a Delaware corporation, has entered
into a Credit Agreement dated as of February 8, 2005 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), with Del Monte Foods Company, a Delaware corporation, the Lenders
party thereto, Bank of America, N.A. ("BANK OF AMERICA"), as administrative
agent, swing line lender and l/c issuer, Xxxxxx Xxxxxxx Senior Funding, Inc., as
syndication agent and JPMorgan Chase Bank, Xxxxxx Trust and Savings Bank and
Suntrust Bank, as co-documentation agents. Terms defined in the Credit Agreement
and not otherwise defined herein are used herein as defined in the Credit
Agreement.
WHEREAS, as a condition precedent to the making of Loans and the
issuance of Letters of Credit by the Lenders under the Credit Agreement and the
entry into Secured Hedge Agreements by the Hedge Banks from time to time, each
Grantor has executed and delivered that certain Security Agreement dated
February 8, 2005 made by the Grantors to Bank of America, as the Administrative
Agent (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "SECURITY AGREEMENT").
WHEREAS, under the terms of the Security Agreement, the Grantors
have granted to the Administrative Agent, for the ratable benefit of the Secured
Parties, a security interest in, among other property, certain intellectual
property of the Grantors, and have agreed as a condition thereof to execute this
IP Security Agreement for recording with the U.S. Patent and Trademark Office,
the United States Copyright Office and other governmental authorities.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Grantor agrees as follows:
SECTION 1. Grant of Security. Each Grantor hereby grants to the
Administrative Agent for the ratable benefit of the Secured Parties a security
interest in all of such Grantor's right, title and interest in and to the
following (the "COLLATERAL"):
(i) the registered patents and patent applications set forth in
Schedule A hereto (the "PATENTS");
(ii) the registered trademark and service xxxx registrations and
applications set forth in Schedule B hereto (provided that no security
interest shall be granted in United States intent-to-use trademark
applications to the extent that, and solely during the
Del Monte Security Agreement Exhibit E - Form of Intellectual Property Security
Agreement
period in which, the grant of a security interest therein would impair the
validity or enforceability of such intent-to-use trademark applications
under applicable federal law), together with the goodwill symbolized
thereby (the "TRADEMARKS");
(iii) all copyrights, whether registered or unregistered, now owned
or hereafter acquired by such Grantor, including, without limitation, the
copyright registrations and applications and exclusive copyright licenses
set forth in Schedule C hereto (the "COPYRIGHTS");
(iv) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the foregoing, all
rights in the foregoing provided by international treaties or conventions,
all rights corresponding thereto throughout the world and all other rights
of any kind whatsoever of such Grantor accruing thereunder or pertaining
thereto;
(v) any and all claims for damages and injunctive relief for past,
present and future infringement, dilution, misappropriation, violation,
misuse or breach with respect to any of the foregoing, with the right, but
not the obligation, to xxx for and collect, or otherwise recover, such
damages; and
(vi) any and all proceeds of, collateral for, income, royalties and
other payments now or hereafter due and payable with respect to, and
supporting obligations relating to, any and all of the Collateral of or
arising from any of the foregoing.
SECTION 2. Security for Obligations. The grant of a security
interest in, the Collateral by each Grantor under this IP Security Agreement
secures the payment of all Obligations of such Grantor now or hereafter existing
under or in respect of the Loan Documents, whether direct or indirect, absolute
or contingent, and whether for principal, reimbursement obligations, interest,
premiums, penalties, fees, indemnifications, contract causes of action, costs,
expenses or otherwise.
SECTION 3. Recordation. Each Grantor authorizes and requests that
the Register of Copyrights, the Commissioner for Patents and the Commissioner
for Trademarks and any other applicable government officer record this IP
Security Agreement.
SECTION 4. Execution in Counterparts. This IP Security Agreement may
be executed in any number of counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 5. Grants, Rights and Remedies. This IP Security Agreement
has been entered into in conjunction with the provisions of the Security
Agreement. Each Grantor does hereby acknowledge and confirm that the grant of
the security interest hereunder to, and the rights and remedies of, the
Administrative Agent with respect to the Collateral are more fully set forth in
the Security Agreement, the terms and provisions of which are incorporated
herein by reference as if fully set forth herein.
SECTION 6. Governing Law. This IP Security Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Del Monte Security Agreement Exhibit E - Form of Intellectual Property Security
Agreement
E-2
IN WITNESS WHEREOF, each Grantor has caused this IP Security
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
DEL MONTE CORPORATION
By ______________________________
Name:
Title:
Address for Notices:
______________________________
______________________________
______________________________
[NAME OF GRANTOR]
By ______________________________
Name:
Title:
Address for Notices:
______________________________
______________________________
______________________________
[NAME OF GRANTOR]
By ______________________________
Name:
Title:
Address for Notices:
______________________________
______________________________
______________________________
[ETC.]
Del Monte Security Agreement Exhibit E - Form of Intellectual Property Security
Agreement
E-3
EXHIBIT F TO THE
SECURITY AGREEMENT
FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT SUPPLEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT SUPPLEMENT (this "IP
SECURITY AGREEMENT SUPPLEMENT") dated ________, ____, is made by the Person
listed on the signature page hereof (the "GRANTOR") in favor of Bank of America,
N.A. ("BANK OF AMERICA"), as Administrative Agent (the "ADMINISTRATIVE AGENT")
for the Secured Parties (as defined in the Credit Agreement referred to below).
WHEREAS, Del Monte Corporation, a Delaware corporation, has entered
into a Credit Agreement dated as of February 8, 2005 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), with Del Monte Foods Company, a Delaware corporation, the Lenders
party thereto, Bank of America, N.A. ("BANK OF AMERICA"), as administrative
agent, swing line lender and l/c issuer, Xxxxxx Xxxxxxx Senior Funding, Inc., as
syndication agent and JPMorgan Chase Bank, Xxxxxx Trust and Savings Bank and
Suntrust Bank, as co-documentation agents. Terms defined in the Credit Agreement
and not otherwise defined herein are used herein as defined in the Credit
Agreement.
WHEREAS, pursuant to the Credit Agreement, the Grantor and certain
other Persons have executed and delivered that certain Security Agreement dated
February 8, 2005 made by the Grantor and such other Persons to Bank of America,
as the Administrative Agent (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "SECURITY AGREEMENT") and that certain
Intellectual Property Security Agreement dated February 8, 2005 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"IP SECURITY AGREEMENT").
WHEREAS, under the terms of the Security Agreement, the Grantor has
granted to the Administrative Agent, for the ratable benefit of the Secured
Parties, a security interest in the Additional Collateral (as defined in Section
1 below) of the Grantor and has agreed as a condition thereof to execute this IP
Security Agreement Supplement for recording with the U.S. Patent and Trademark
Office, the United States Copyright Office and other governmental authorities.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Grantor agrees as follows:
SECTION 1. Grant of Security. Each Grantor hereby grants to the
Administrative Agent, for the ratable benefit of the Secured Parties, a security
interest in all of such Grantor's right, title and interest in and to the
following (the "COLLATERAL"):
(i) the registered patents and patent applications set forth in
Schedule A hereto (the "PATENTS");
(ii) the registered trademark and service xxxx registrations and
applications set forth in Schedule B hereto (provided that no security
interest shall be granted in
Del Monte Security Agreement Exhibit F - Form of Intellectual Property Security
Agreement Supplement
United States intent-to-use trademark applications to the extent that, and
solely during the period in which, the grant of a security interest
therein would impair the validity or enforceability of such intent-to-use
trademark applications under applicable federal law), together with the
goodwill symbolized thereby (the "TRADEMARKS");
(iii) the copyright registrations and applications and exclusive
copyright licenses set forth in Schedule C hereto (the "COPYRIGHTS");
(iv) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the foregoing, all
rights in the foregoing provided by international treaties or conventions,
all rights corresponding thereto throughout the world and all other rights
of any kind whatsoever of such Grantor accruing thereunder or pertaining
thereto;
(v) all any and all claims for damages and injunctive relief for
past, present and future infringement, dilution, misappropriation,
violation, misuse or breach with respect to any of the foregoing, with the
right, but not the obligation, to xxx for and collect, or otherwise
recover, such damages; and
(vi) any and all proceeds of, collateral for, income, royalties and
other payments now or hereafter due and payable with respect to, and
supporting obligations relating to, any and all of the foregoing or
arising from any of the foregoing.
SECTION 2. Supplement to Security Agreement. Schedule V to the
Security Agreement is, effective as of the date hereof, hereby supplemented to
add to such Schedule the Additional Collateral.
SECTION 3. Security for Obligations. The grant of a security
interest in the Additional Collateral by the Grantor under this IP Security
Agreement Supplement secures the payment of all Obligations of the Grantor now
or hereafter existing under or in respect of the Loan Documents, whether direct
or indirect, absolute or contingent, and whether for principal, reimbursement
obligations, interest, premiums, penalties, fees, indemnifications, contract
causes of action, costs, expenses or otherwise.
SECTION 4. Recordation. The Grantor authorizes and requests that the
Register of Copyrights, the Commissioner for Patents and the Commissioner for
Trademarks and any other applicable government officer to record this IP
Security Agreement Supplement.
SECTION 5. Grants, Rights and Remedies. This IP Security Agreement
Supplement has been entered into in conjunction with the provisions of the
Security Agreement. The Grantor does hereby acknowledge and confirm that the
grant of the security interest hereunder to, and the rights and remedies of, the
Administrative Agent with respect to the Additional Collateral are more fully
set forth in the Security Agreement, the terms and provisions of which are
incorporated herein by reference as if fully set forth herein.
SECTION 6. Governing Law. This IP Security Agreement Supplement
shall be governed by, and construed in accordance with, the laws of the State of
New York.
Del Monte Security Agreement Exhibit F - Form of Intellectual Property Security
Agreement Supplement
F-2
IN WITNESS WHEREOF, the Grantor has caused this IP Security
Agreement Supplement to be duly executed and delivered by its officer thereunto
duly authorized as of the date first above written.
[NAME OF GRANTOR]
By _______________________________
Name:
Title:
Address for Notices:
_______________________________
_______________________________
_______________________________
Del Monte Security Agreement Exhibit F - Form of Intellectual Property Security
Agreement Supplement
F-3
EXHIBIT G TO THE
SECURITY AGREEMENT
FORM OF CONSENT TO ASSIGNMENT OF LETTER OF CREDIT RIGHTS
To: BANK OF AMERICA, N.A., as Administrative Agent
[____________________]
[____________________]
[____________________]
[INSERT NAME OF BENEFICIARY], as Beneficiary
[____________________]
[____________________]
[____________________]
We refer to the [INSERT ALL IDENTIFYING INFORMATION WITH RESPECT TO
RELEVANT LETTER OF CREDIT] (as it may be amended, supplemented or otherwise
modified from time to time, the "Letter of Credit"), a true copy of which is
attached hereto. The Letter of Credit has been established in favor of [INSERT
NAME OF BENEFICIARY], as beneficiary (the "Beneficiary"), and we are the
[issuing bank (the "Issuing Bank")][nominated person (the "Nominated Person")]
required to give value thereunder pursuant to one [or more] drawing[s] upon the
satisfaction of the conditions stated in the Letter of Credit. The liability of
the [Issuing Bank][Nominated Person] for action or omissions under the Letter of
Credit is governed by the laws of [INSERT RELEVANT JURISDICTION], as chosen by
agreement in the Letter of Credit. The signatories to this consent letter are
the only persons obligated to give value under the Letter of Credit.
We hereby confirm that there is no term in the Letter of Credit or
other restriction which prohibits, restricts or requires any person's consent to
the Beneficiary's assignment of or creation of a security interest in the rights
to payment or performance under the Letter of Credit. We hereby consent to and
acknowledge the assignment by the Beneficiary of all proceeds of and rights to
payment and performance under the Letter of Credit in favor of Bank of America,
N.A., as Administrative Agent (the "Administrative Agent") pursuant to the
Security Agreement dated as of February 8, 2005 executed by the Beneficiary and
other parties thereto, as Grantor, in favor of the Administrative Agent, as such
agreement may be amended, amended and restated, supplemented or otherwise
modified from time to time (the "Security Agreement").
Del Monte Security Agreement Exhibit G - Form of Consent to Assignment of
Letter of Credit Rights
We hereby agree to pay, irrespective of, and without deduction for,
any counterclaim, defense, recoupment or set-off, all proceeds of the Letter of
Credit that would otherwise be paid to the Beneficiary directly to the
Administrative Agent to the following account:
[____________________]
[____________________]
[____________________]
[____________________]
We hereby confirm and agree that the Letter of Credit is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects and that the Administrative Agent shall have no liability or
obligation under or with respect to the Letter of Credit or any document related
thereto as a result of this consent letter, the Security Agreement or otherwise.
This consent letter may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute but one and the same consent letter. Delivery of an executed
counterpart of a signature page to this consent letter by telecopier shall be
effective as delivery of an original executed counterpart of this consent
letter.
This consent letter shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF ISSUING BANK]
By: ______________________
Name:
Title:
[NAME OF NOMINATED PERSON]
By: ______________________
Name:
Title:
Del Monte Security Agreement Exhibit G - Form of Consent to Assignment of
Letter of Credit Rights
G-2
The above is acknowledged and agreed to:
[NAME OF GRANTOR/BENEFICIARY]
By ________________________________
Name: _____________________________
Title: ____________________________
Address for Notices:
___________________________________
___________________________________
___________________________________
G-3
