[EXECUTION COPY]
AMENDED AND RESTATED BORROWER SECURITY AGREEMENT
This AMENDED AND RESTATED BORROWER SECURITY AGREEMENT (as amended,
supplemented, amended and restated or otherwise modified from time to
time, this "Security Agreement"), dated as of September 11, 1998 (amending and
restating the Borrower Security Agreement, dated as of February 13, 1998 (the
"Existing Security Agreement")), is made by XXXXX XXXXX, a New York general
partnership (the "Grantor"), in favor of FLEET NATIONAL BANK, as administrative
agent (together with its successor(s) thereto, in such capacity the
"Administrative Agent") for each of the Secured Parties.
W I T N E S S E T H:
WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated
as of September 11, 1998 (amending and restating in its entirety that certain
Credit Agreement, dated as of February 13, 1998 (as amended prior to the
Amendment Effective Date, the "Existing Credit Agreement") (as so amended and
restated, and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among the Grantor, each of the Parent Guarantors named therein,
the various financial institutions as are, or may from time to time become,
parties thereto (each individually a "Lender" and collectively the "Lenders"),
DLJ Capital Funding, Inc., as the Syndication Agent, Fleet National Bank, as
the Administrative Agent and Credit Lyonnais New York Branch, as the
Documentation Agent, the Lenders and the Issuer have extended Commitments to
make Credit Extensions to the Grantor;
WHEREAS, as a condition precedent to the making of the Credit
Extensions under the Existing Credit Agreement, the Grantor was required to
execute and deliver the Existing Security Agreement; and
WHEREAS, the Grantor has requested that the Existing Security
Agreement be amended and restated in its entirety to read as hereinafter set
forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the
Lenders and the Issuer to make and maintain Credit Extensions to the Grantor
pursuant to the Credit Agreement and to induce the Secured Parties to enter
into Rate Protection Agreement(s), the Grantor agrees, for the benefit of each
Secured Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Security Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Collateral" is defined in Section 2.1.
"Collateral Account" is defined in Section 4.3(b).
"Computer Hardware and Software Collateral" means:
(a) all computer and other electronic data processing
hardware, integrated computer systems, central processing units,
memory units, display terminals, printers, features, computer
elements, card readers, tape drives, hard and soft disk drives,
cables, electrical supply hardware, generators, power equalizers,
accessories and all peripheral devices and other related computer
hardware;
(b) all software programs (including both source code, object
code and all related applications and data files), whether now owned,
licensed or leased or hereafter acquired by the Grantor, designed for
use on the computers and electronic data processing hardware described
in clause (a) above;
(c) all firmware associated therewith;
(d) all documentation (including flow charts, logic diagrams,
manuals, guides and specifications) with respect to such hardware,
software and firmware described in the preceding clauses (a) through
(c); and
(e) all rights with respect to all of the foregoing,
including any and all copyrights, licenses, options, warranties,
service contracts, program services, test rights, maintenance rights,
support rights, improvement rights, renewal rights and
indemnifications and any substitutions, replacements, additions or
model conversions of any of the foregoing.
"Copyright Collateral" means all copyrights (including all copyrights
for semiconductor chip product mask works) of the Grantor, whether statutory or
common law, registered or unregistered, now or hereafter in force throughout
the world including all of the Grantor's right, title and interest in and to
all copyrights registered in the United States Copyright Office or anywhere
else in the world and also including the copyrights referred to in Item A of
Schedule IV
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attached hereto, and all applications for registration thereof, whether pending
or in preparation, all copyright licenses, including each copyright license
referred to in Item B of Schedule IV attached hereto, the right to xxx for
past, present and future infringements of any thereof, all rights corresponding
thereto throughout the world, all extensions and renewals of any thereof and
all proceeds of the foregoing, including licenses, royalties, income, payments,
claims, damages and proceeds of suit.
"Credit Agreement" is defined in the first recital.
"Equipment" is defined in clause (a) of Section 2.1.
"Existing Credit Agreement" is defined in the first recital.
"Existing Security Agreement" is defined in the preamble.
"Grantor" is defined in the preamble.
"Intellectual Property Collateral" means, collectively, the Computer
Hardware and Software Collateral, the Copyright Collateral, the Patent
Collateral, the Trademark Collateral and the Trade Secrets Collateral.
"Inventory" is defined in clause (b) of Section 2.1
"Lender" and "Lenders" are defined in the first recital.
"Patent Collateral" means:
(a) all letters patent and applications for letters patent
throughout the world, including all patent applications in preparation
for filing anywhere in the world and including each patent and patent
application referred to in Item A of Schedule II attached hereto;
(b) all reissues, divisions, continuations,
continuations-in-part, extensions, renewals and reexaminations of any
of the items described in clause (a);
(c) all patent licenses, including each patent license
referred to in Item B of Schedule II attached hereto; and
(d) all proceeds of, and rights associated with, the
foregoing (including license royalties and proceeds of infringement
suits), the right to xxx third parties for past, present or future
infringements of any patent or patent application, including any
patent or patent application referred to in Item A of Schedule II
attached hereto, and for breach or
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enforcement of any patent license, including any patent license
referred to in Item B of Schedule II attached hereto, and all
rights corresponding thereto throughout the world.
"Receivables" is defined in clause (c) of Section 2.1.
"Related Contracts" is defined in clause (c) of Section 2.1.
"Security Agreement" is defined in the preamble.
"Trademark Collateral" means:
(a) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles,
service marks, certification marks, collective marks, logos, other
source of business identifiers, prints and labels on which any of the
foregoing have appeared or appear, designs and general intangibles of
a like nature (all of the foregoing items in this clause (a) being
collectively called a "Trademark"), now existing anywhere in the world
or hereafter adopted or acquired, whether currently in use or not, all
registrations and recordings thereof and all applications in
connection therewith, whether pending or in preparation for filing,
including registrations, recordings and applications in the United
States Patent and Trademark Office or in any office or agency of the
United States of America or any State thereof or any foreign country,
including those referred to in Item A of Schedule III attached hereto;
(b) all Trademark licenses, including each Trademark license
referred to in Item B of Schedule III attached hereto;
(c) all reissues, extensions or renewals of any of the items
described in clauses (a) and (b);
(d) all of the goodwill of the business connected with the
use of, and symbolized by the items described in, clauses (a) and (b);
and
(e) all proceeds of, and rights associated with, the
foregoing, including any claim by the Grantor against third
parties for past, present or future infringement or dilution of
any Trademark, Trademark registration or Trademark license,
including any Trademark, Trademark registration or Trademark
license referred to in Item A and Item B of Schedule III attached
hereto, or for any injury to the goodwill associated with the use
of any such Trademark or for breach or enforcement of any
Trademark license.
"Trade Secrets Collateral" means all common law and statutory trade
secrets and all other confidential or proprietary or useful information and all
know-how obtained by or used in or contemplated at any time for use in the
business of the Grantor (all of the foregoing being
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collectively called a "Trade Secret"), whether or not such Trade Secret has
been reduced to a writing or other tangible form, including all documents and
things embodying, incorporating or referring in any way to such Trade Secret,
all Trade Secret licenses, including each Trade Secret license referred to in
Schedule V attached hereto, and including the right to xxx for and to enjoin
and to collect damages for the actual or threatened misappropriation of any
Trade Secret and for the breach or enforcement of any such Trade Secret
license.
"U.C.C." means the Uniform Commercial Code, as in effect from time to
time in the State of New York.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Security
Agreement, including its preamble and recitals, have the meanings provided in
the Credit Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or in
the Credit Agreement or the context otherwise requires, terms for which
meanings are provided in the U.C.C. are used in this Security Agreement,
including its preamble and recitals, with such meanings.
ARTICLE II
SECURITY INTEREST
SECTION 2.1. Grant of Security. The Grantor hereby (x) confirms the
assignments, pledges and grants that it previously made to the Administrative
Agent for its benefit and the ratable benefit of each of the Secured Parties
pursuant to the Existing Security Agreement and (y) not in limitation of such
assignments, pledges and grants but as a supplement thereto, assigns and
pledges to the Administrative Agent for its benefit and the ratable benefit of
each of the Secured Parties, and hereby grants to the Administrative Agent for
its benefit and the ratable benefit of each of the Secured Parties, a security
interest in all of the following, whether now or hereafter existing or acquired
by the Grantor (the "Collateral"):
(a) all equipment in all of its forms of the Grantor,
wherever located, including all parts thereof and all accessions,
additions, attachments, improvements, substitutions and
replacements thereto and therefor and all accessories related thereto
(any and all of the foregoing being the "Equipment");
(b) all inventory in all of its forms of the Grantor,
wherever located, including
(i) all raw materials and work in process therefor,
finished goods thereof, and materials used or consumed in the
manufacture or production thereof,
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(ii) all goods in which the Grantor has an interest
in mass or a joint or other interest or right of any kind
(including goods in which the Grantor has an interest or
right as consignee), and
(iii) all goods which are returned to or repossessed
by the Grantor,
and all accessions thereto, products thereof and documents therefor
(any and all such inventory, materials, goods, accessions, products
and documents being the "Inventory");
(c) all accounts, contracts, contract rights, chattel paper,
documents, instruments, and general intangibles (including tax
refunds) of the Grantor, whether or not arising out of or in
connection with the sale or lease of goods or the rendering of
services, and all rights of the Grantor now or hereafter existing in
and to all security agreements, guaranties, leases and other contracts
securing or otherwise relating to any such accounts, contracts,
contract rights, chattel paper, documents, instruments, and general
intangibles (any and all such accounts, contracts, contract rights,
chattel paper, documents, instruments, and general intangibles being
the "Receivables" (provided, however, that Receivables shall not
include Prescription Receivables sold to Pharmacy Fund pursuant to the
Rapid Remit Program), and any and all such security agreements,
guaranties, leases and other contracts being the "Related Contracts")
(provided, however, that Related Contracts shall not include the Rapid
Remit Program Documents);
(d) all Intellectual Property Collateral of the Grantor;
(e) all books, records, writings, data bases, information and
other property relating to, used or useful in connection with,
evidencing, embodying, incorporating or referring to, any of the
foregoing in this Section 2.1;
(f) all of the Grantor's other property and rights of every
kind and description and interests therein; and
(g) all products, offspring, rents, issues, profits, returns,
income and proceeds of and from any and all of the foregoing
Collateral (including proceeds which constitute property of the types
described in clauses (a), (b), (c), (d), (e) and (f), proceeds
deposited from time to time in the Collateral Account and in any lock
boxes of the Grantor, and, to the extent not otherwise included, all
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).
Notwithstanding the foregoing, "Collateral" shall not include any general
intangibles or other rights arising under any contracts, instruments, licenses
or other documents as to which the grant of a security interest would
constitute a violation of a valid and enforceable restriction in favor of
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a third party on such grant, unless and until any required consents shall have
been obtained. The Grantor agrees to use its commercially reasonable best
efforts to obtain any such required consent.
SECTION 2.2. Security for Obligations. This Security Agreement secures
the payment of all Obligations of the Grantor now or hereafter existing under
the Credit Agreement, the Notes and each other Loan Document to which the
Grantor is or may become a party, whether for principal, interest, costs, fees,
expenses or otherwise.
SECTION 2.3. Continuing Security Interest; Transfer of Notes. This
Security Agreement shall create a continuing security interest in the
Collateral and shall
(a) remain in full force and effect until payment in full in
cash of all Obligations, the termination or expiration of all Letters
of Credit, the termination of all Rate Protection Agreements and the
termination of all Commitments,
(b) be binding upon the Grantor, its successors, transferees
and assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative
Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (c), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all the rights and benefits in respect thereof
granted to such Lender under any Loan Document (including this Security
Agreement) or otherwise, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of Section 11.11 and Article X of
the Credit Agreement. Upon the payment in full in cash of all Obligations, the
termination or expiration of all Letters of Credit, the termination of all Rate
Protection Agreements and the termination of all Commitments, the security
interest granted herein shall terminate and all rights to the Collateral shall
revert to the Grantor. Upon any such termination, the Administrative Agent
will, at the Grantor's sole expense, execute and deliver to the Grantor such
documents as the Grantor shall reasonably request to evidence such termination.
Upon any sale or other transfer of Collateral permitted by the terms of Section
7.2.9 of the Credit Agreement, the security interest created hereunder in such
Collateral (but not in the proceeds thereof) shall be deemed to be
automatically released and the Administrative Agent will, at the Grantor's sole
expense, execute and deliver to the Grantor such documents as the Grantor shall
reasonably request to evidence such release.
SECTION 2.4. Grantor Remains Liable. Anything herein to the contrary
notwithstanding
(a) the Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein,
and shall perform all of its duties and
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obligations under such contracts and agreements to the same extent as
if this Security Agreement had not been executed,
(b) the exercise by the Administrative Agent of any of its
rights hereunder shall not release the Grantor from any of its duties
or obligations under any such contracts or agreements included in the
Collateral, and
(c) neither the Administrative Agent nor any other Secured
Party shall have any obligation or liability under any such contracts
or agreements included in the Collateral by reason of this Security
Agreement, nor shall the Administrative Agent or any other Secured
Party be obligated to perform any of the obligations or duties of the
Grantor thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. The Grantor represents
and warrants to each Secured Party as set forth in this Article III.
SECTION 3.2. Location of Collateral, etc. All of the Equipment,
Inventory and lock boxes of the Grantor are located at the places specified in
Item A, Item B and Item C, respectively, of Schedule I hereto. None of the
Equipment and Inventory has, within the four months preceding the Closing Date
(if then owned by the Grantor), been located at any place other than the places
specified in Item A and Item B, respectively, of Schedule I hereto except as
set forth in a footnote thereto. The place(s) of business and chief executive
office of the Grantor and the office(s) where the Grantor keeps its records
concerning the Receivables, and all originals of all chattel paper which
evidence Receivables, are located at the address set forth in Item D of
Schedule I hereto. The Grantor has no trade names other than those set forth in
Item E of Schedule I hereto. During the four months preceding the Closing Date,
the Grantor has not been known by any legal name different from the one set
forth on the signature page hereto, nor has the Grantor been the subject of any
merger or other corporate reorganization, except as set forth in Item F of
Schedule I hereto. If the Collateral includes any Inventory located in the
State of California, the Grantor is not a "retail merchant" within the meaning
of Section 9102 of the Uniform Commercial Code - Secured Transactions of the
State of California. All Receivables evidenced by a promissory note or other
instrument, negotiable document or chattel paper have been duly endorsed and
accompanied by duly executed instruments of transfer or assignment, all in form
and substance satisfactory to the Administrative Agent and delivered and
pledged to the Administrative Agent pursuant to Section 4.8. The Grantor is not
a party to any Federal, state or local government contract except as set forth
in Item G of Schedule I hereto.
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SECTION 3.3. Ownership, No Liens, etc. The Grantor owns its Collateral
free and clear of any Lien, security interest, charge or encumbrance except for
the security interest created by this Security Agreement and except as
permitted by the Credit Agreement. No effective financing statement or other
instrument similar in effect covering all or any part of the Collateral is on
file in any recording office, except such as may have been filed in favor of
the Administrative Agent relating to this Security Agreement or as have been
filed in connection with Liens permitted pursuant to Section 7.2.3 of the
Credit Agreement or as to which a duly executed termination statement relating
to such financing statement or other instrument has been delivered to the
Administrative Agent on the Closing Date.
SECTION 3.4. Possession and Control. The Grantor has exclusive
possession and control of its Equipment and Inventory.
SECTION 3.5. Negotiable Documents, Instruments and Chattel Paper. The
Grantor has, contemporaneously herewith, delivered to the Administrative Agent
possession of all originals of all negotiable documents, instruments and
chattel paper currently owned or held by the Grantor (duly endorsed in blank,
if requested by the Administrative Agent).
SECTION 3.6. Intellectual Property Collateral. With respect to any
Intellectual Property Collateral the loss, impairment or infringement of which
might have a Material Adverse Effect:
(a) such Intellectual Property Collateral is subsisting and
has not been adjudged invalid or unenforceable, in whole or in part;
(b) such Intellectual Property Collateral is valid and
enforceable;
(c) the Grantor has made all necessary filings and
recordations to protect its interest in such Intellectual Property
Collateral, including recordations of all of its interests in the
Patent Collateral and Trademark Collateral in the United States Patent
and Trademark Office and in corresponding offices in countries in
which the failure to so file and/or record could reasonably be
expected to have a Material Adverse Effect and its claims to the
Copyright Collateral in the United States Copyright Office and in
corresponding offices in countries in which the failure to so file
and/or record could reasonably be expected to have a Material Adverse
Effect;
(d) the Grantor is the exclusive owner of the entire and
unencumbered right, title and interest in and to such Intellectual
Property Collateral and no claim has been made that the use of such
Intellectual Property Collateral does or may violate the asserted
rights of any third party; and
(e) the Grantor has performed and will continue to perform
all acts and has paid and will continue to pay all required fees and
taxes to maintain each and every such item
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of Intellectual Property Collateral in full force and effect
throughout the world, as applicable.
The Grantor owns directly or is entitled to use by license or otherwise, all
patents, Trademarks, Trade Secrets, copyrights, mask works, licenses,
technology, know-how, processes and rights with respect to any of the foregoing
used in, necessary for or of importance to the conduct of the Grantor's
business.
SECTION 3.7. Validity, etc. This Security Agreement creates a valid
first priority security interest in the Collateral securing the payment of the
Obligations, and
(a) in the case of Collateral comprised of certificated
securities or instruments, upon the delivery of such Collateral to the
Administrative Agent, such security interest will be a first priority
perfected security interest;
(b) in the case of Collateral comprised of uncertificated
securities with respect to which a security interest therein may not
be perfected under applicable law by the filing of a Uniform
Commercial Code financing statement, upon a "transfer" (as such term
is used in Section 8-313 of the U.C.C.) of such Collateral to the
Administrative Agent, such security interest will be a first priority
perfected security interest; and
(c) in the case of all other Collateral, upon the filing of
the Uniform Commercial Code financing statements delivered by the
Grantor to the Administrative Agent with respect to such Collateral,
such security interest will be a first priority perfected security
interest.
The Grantor has filed all Uniform Commercial Code financing statements referred
to above in the appropriate offices therefor (or has provided the
Administrative Agent with copies thereof suitable for filing in such offices),
and has taken all of the other actions referred to above necessary to create
perfected, first-priority security interests in the applicable Collateral.
SECTION 3.8. Authorization, Approval, etc. Except as have been
obtained or made and are in full force and effect (or otherwise provided for to
the satisfaction of the Agents), no authorization, approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required either
(a) for the grant by the Grantor of the security interest
granted hereby or for the execution, delivery and performance of this
Security Agreement by the Grantor, or
(b) for the perfection of or the exercise by the
Administrative Agent of its rights and remedies hereunder.
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SECTION 3.9. Compliance with Laws. The Grantor is in compliance with
the requirements of all applicable laws (including the provisions of the Fair
Labor Standards Act), rules, regulations and orders of every governmental
authority, the non-compliance with which could reasonably be expected to have a
Material Adverse Effect or which could reasonably be expected to materially
adversely affect the value of the Collateral or the worth of the Collateral as
collateral security.
ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. The Grantor covenants and agrees that,
so long as any portion of the Obligations shall remain unpaid, any Letters of
Credit shall be outstanding, any Rate Protection Agreements shall remain in
full force and effect, or any Lender shall have any outstanding Commitment, the
Grantor will, unless the Required Lenders shall otherwise consent in writing,
perform, comply with and be bound by the obligations set forth in this Article
IV.
SECTION 4.2. As to Equipment and Inventory. The Grantor hereby
agrees that it shall
(a) keep all the Equipment and Inventory (other than
Inventory sold in the ordinary course of business) at the places
therefor specified in Section 3.2 or, upon 30 days' prior written
notice to the Administrative Agent, at such other places in a
jurisdiction where all representations and warranties set forth in
Article III (including Section 3.7) shall be true and correct, and all
action required pursuant to the first sentence of Section 4.8 shall
have been taken with respect to the Equipment and Inventory;
(b) cause the Equipment to be maintained and preserved as
required by Section 7.1.3 of the Credit Agreement; and promptly
furnish to the Administrative Agent a statement respecting any loss or
damage to any of such material Equipment; and
(c) pay promptly when due all property and other material
taxes, assessments and governmental charges or levies imposed upon,
and all claims (including claims for labor, materials and supplies)
against, the Equipment and Inventory, except to the extent the
validity thereof is being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
have been set aside.
SECTION 4.3. As to Receivables.
(a) The Grantor shall keep its place(s) of business and chief
executive office and the office(s) where it keeps its records
concerning the Receivables, and all originals of all chattel paper
which evidences Receivables, located at the address(es) set forth in
Item D
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of Schedule I hereto, or, upon 30 days' prior written notice to the
Administrative Agent, at such other locations in a jurisdiction
where all actions required by the first sentence of Section 4.8 shall
have been taken with respect to the Receivables; not change its name
except upon 30 days' prior written notice to the Administrative Agent;
hold and preserve such records and chattel paper; and permit
representatives of the Administrative Agent at any time during normal
business hours to inspect and make abstracts from such records and
chattel paper. In addition, the Grantor shall give the Administrative
Agent a supplement to Schedule I hereto on each date a Compliance
Certificate is required to be delivered to the Administrative Agent
under the Credit Agreement, which shall set forth any changes to the
information set forth in Section 3.2.
(b) Upon written notice by the Administrative Agent to the
Grantor pursuant to this Section 4.3(b), all proceeds of Collateral
received by the Grantor shall be delivered in kind to the
Administrative Agent for deposit to a deposit account (the "Collateral
Account") of the Grantor maintained with the Administrative Agent, and
the Grantor shall not commingle any such proceeds, and shall hold
separate and apart from all other property, all such proceeds in
express trust for the benefit of the Administrative Agent until
delivery thereof is made to the Administrative Agent. The
Administrative Agent will not give the notice referred to in the
preceding sentence unless there shall have occurred and be continuing
a Default of the nature set forth in Section 8.1.9 of the Credit
Agreement or an Event of Default.
(c) The Administrative Agent shall have the right to apply
any amount in the Collateral Account to the payment of any Obligations
which are due and payable or payable upon demand, or to the payment of
any Obligations at any time that an Event of Default shall exist.
SECTION 4.4. As to Collateral.
(a) Until the occurrence and continuance of a Default of
the nature set forth in Section 8.1.9 of the Credit Agreement or
an Event of Default, and such time as the Administrative Agent
shall notify the Grantor of the revocation of such power and
authority the Grantor (i) may in the ordinary course of its
business (except as otherwise permitted under the Credit
Agreement), at its own expense, sell, lease or furnish under the
contracts of service any of the Inventory normally held by the
Grantor for such purpose, and use and consume, in the ordinary
course of its business (except as otherwise permitted under the
Credit Agreement), any raw materials, work in process or
materials normally held by the Grantor for such purpose, (ii)
will, at its own expense, endeavor to collect, as and when due,
all amounts due with respect to any of the Collateral, including
the taking of such action with respect to such collection as the
Administrative Agent may reasonably request following the
occurrence of a Default of the nature set forth in Section 8.1.9
of the Credit Agreement or an Event of Default or, in the absence
of such request, as the Grantor may deem advisable, and (iii) may
grant, in the ordinary course of
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business (except as otherwise permitted under the Credit Agreement),
to any party obligated on any of the Collateral, any rebate, refund
or allowance to which such party may be lawfully entitled, and
may accept, in connection therewith, the return of goods, the
sale or lease of which shall have given rise to such Collateral.
The Administrative Agent, however, may, at any time following a
Default of the nature set forth in Section 8.1.9 of the Credit
Agreement or an Event of Default, whether before or after any
revocation of such power and authority or the maturity of any of
the Obligations, notify any parties obligated on any of the
Collateral to make payment to the Administrative Agent of any
amounts due or to become due thereunder and enforce collection of
any of the Collateral by suit or otherwise and surrender,
release, or exchange all or any part thereof, or compromise or
extend or renew for any period (whether or not longer than the
original period) any indebtedness thereunder or evidenced
thereby. Upon request of the Administrative Agent following a
Default of the nature set forth in Section 8.1.9 of the Credit
Agreement or an Event of Default, the Grantor will, at its own
expense, notify any parties obligated on any of the Collateral to
make payment to the Administrative Agent of any amounts due or to
become due thereunder.
(b) Following a Default of the nature set forth in Section
8.1.9 of the Credit Agreement or an Event of Default, the
Administrative Agent is authorized to endorse, in the name of the
Grantor, any item, howsoever received by the Administrative Agent,
representing any payment on or other proceeds of any of the
Collateral.
SECTION 4.5. As to Intellectual Property Collateral. The Grantor
covenants and agrees to comply with the following provisions as such provisions
relate to any Intellectual Property Collateral of the Grantor:
(a) the Grantor shall not, unless the Grantor shall either
(i) reasonably and in good faith determine (and notice of such
determination shall have been delivered to the Administrative Agent)
that any of the Patent Collateral is of negligible economic value to
the Grantor, or (ii) have a valid business purpose to do otherwise, do
any act, or omit to do any act, whereby any of the Patent Collateral
may lapse or become abandoned or dedicated to the public or
unenforceable.
(b) the Grantor shall not, and the Grantor shall not permit
any of its licensees to, unless the Grantor shall either (i)
reasonably and in good faith determine (and notice of such
determination shall have been delivered to the Administrative Agent)
that any of the Trademark Collateral is of negligible economic value
to the Grantor, or (ii) have a valid business purpose to do otherwise,
(i) fail to continue to use any of the Trademark
Collateral in order to maintain all of the Trademark
Collateral in full force free from any claim of abandonment
for non-use,
-13-
(ii) fail to maintain as in the past the quality of
products and services offered under all of the Trademark
Collateral,
(iii) fail to employ all of the Trademark Collateral
registered with any Federal or state or foreign authority
with an appropriate notice of such registration,
(iv) adopt or use any other Trademark which is
confusingly similar or a colorable imitation of any of the
Trademark Collateral,
(v) use any of the Trademark Collateral registered
with any Federal or state or foreign authority except for the
uses for which registration or application for registration
of all of the Trademark Collateral has been made, and
(vi) do or permit any act or knowingly omit to do
any act whereby any of the Trademark Collateral may lapse or
become invalid or unenforceable.
(c) the Grantor shall not, unless the Grantor shall either
(i) reasonably and in good faith determine (and notice of such
determination shall have been delivered to the Administrative Agent)
that any of the Copyright Collateral or any of the Trade Secrets
Collateral is of negligible economic value to the Grantor, or (ii)
have a valid business purpose to do otherwise, do or permit any act or
knowingly omit to do any act whereby any of the Copyright Collateral
or any of the Trade Secrets Collateral may lapse or become invalid or
unenforceable or placed in the public domain except upon expiration of
the end of an unrenewable term of a registration thereof.
(d) the Grantor shall notify the Administrative Agent
immediately if it knows, or has reason to know, that any application
or registration relating to any material item of the Intellectual
Property Collateral may become abandoned or dedicated to the public or
placed in the public domain or invalid or unenforceable, or of any
adverse determination or development (including the institution of, or
any such determination or development in, any proceeding in the United
States Patent and Trademark Office, the United States Copyright Office
or any foreign counterpart thereof or any court) regarding the
Grantor's ownership of any of the Intellectual Property Collateral,
its right to register the same or to keep and maintain and enforce the
same.
(e) in no event shall the Grantor or any of its agents,
employees, designees or licensees file an application for the
registration of any Intellectual Property Collateral with the United
States Patent and Trademark Office, the United States Copyright Office
or any similar office or agency in any other country or any political
subdivision thereof, unless it promptly informs the Administrative
Agent, and upon request of the Administrative Agent, executes and
delivers any and all agreements, instruments, documents and papers as
the Administrative Agent may reasonably request to evidence
-14-
the Administrative Agent's security interest in such Intellectual
Property Collateral and the goodwill and general intangibles of the
Grantor relating thereto or represented thereby.
(f) the Grantor shall take all necessary steps, including in
any proceeding before the United States Patent and Trademark Office,
the United States Copyright Office or any similar office or agency in
any other country or any political subdivision thereof, to maintain
and pursue any application (and to obtain the relevant registration)
filed with respect to, and to maintain any registration of, the
Intellectual Property Collateral, including the filing of applications
for renewal, affidavits of use, affidavits of incontestability and
opposition, interference and cancellation proceedings and the payment
of fees and taxes (except to the extent that dedication, abandonment
or invalidation is permitted under the foregoing clauses (a), (b) and
(c)).
(g) the Grantor shall, contemporaneously herewith, execute
and deliver to the Administrative Agent a Trademark Security Agreement
in the form of Exhibit B hereto, and shall execute and deliver to the
Administrative Agent any other document required to acknowledge or
register or perfect the Administrative Agent's interest in any part of
the Intellectual Property Collateral.
SECTION 4.6. Insurance. The Grantor will maintain or cause to be
maintained with responsible insurance companies insurance with respect to its
business and properties (including the Equipment and Inventory) against such
casualties and contingencies and of such types and in such amounts as is
required pursuant to the Credit Agreement and will, upon the request of the
Administrative Agent, furnish a certificate of a reputable insurance broker
setting forth the nature and extent of all insurance maintained by the Grantor
in accordance with this Section.
SECTION 4.7. Transfers and Other Liens. The Grantor shall not:
(a) sell, assign (by operation of law or otherwise) or
otherwise dispose of any of the Collateral, except Inventory in the
ordinary course of business or as permitted by the Credit Agreement;
or
(b) create or suffer to exist any Lien or other charge or
encumbrance upon or with respect to any of the Collateral to secure
Indebtedness of any Person or entity, except for the security interest
created by this Security Agreement and except as permitted by the
Credit Agreement.
SECTION 4.8. Further Assurances, etc. The Grantor agrees that, from
time to time at its own expense, it will promptly execute and deliver 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, preserve and protect any security interest granted or purported to
be granted hereby or to enable the Administrative Agent to exercise and enforce
its rights and
-15-
remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, the Grantor will
(a) xxxx conspicuously each document included in the
Inventory, each chattel paper included in the Receivables and each
Related Contract and, at the request of the Administrative Agent, each
of its records pertaining to the Collateral with a legend, in form and
substance satisfactory to the Administrative Agent, indicating that
such document, chattel paper, Related Contract or Collateral is
subject to the security interest granted hereby;
(b) if any Receivable shall be evidenced by a promissory note
or other instrument, negotiable document or chattel paper, deliver and
pledge to the Administrative Agent hereunder such promissory note,
instrument, negotiable document or chattel paper duly endorsed and
accompanied by duly executed instruments of transfer or assignment,
all in form and substance satisfactory to the Administrative Agent;
(c) execute and file such financing or continuation
statements, or amendments thereto, and such other instruments or
notices (including any assignment of claim form under or pursuant to
the federal assignment of claims statute, 31 U.S.C. ss. 3726, any
successor or amended version thereof or any regulation promulgated
under or pursuant to any version thereof), as may be necessary or
desirable, or as the Administrative Agent may request, in order to
perfect and preserve the security interests and other rights granted
or purported to be granted to the Administrative Agent hereby; and
(d) furnish to the Administrative Agent, from time to time at
the Administrative Agent's request, statements and schedules further
identifying and describing the Collateral and such other reports in
connection with the Collateral as the Administrative Agent may
reasonably request, all in reasonable detail.
With respect to the foregoing and the grant of the security interest hereunder,
the Grantor hereby authorizes the Administrative Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all
or any part of the Collateral without the signature of the Grantor where
permitted by law. A carbon, photographic or other reproduction of this Security
Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law.
ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1. Administrative Agent Appointed Attorney-in-Fact. The
Grantor hereby irrevocably appoints the Administrative Agent the Grantor's
attorney-in-fact, with full authority
-16-
in the place and stead of the Grantor and in the name of the Grantor or
otherwise, from time to time in the Administrative Agent's discretion,
following the occurrence and continuation of a Default of the nature set forth
in Section 8.1.9 of the Credit Agreement or an Event of Default, to take any
action and to execute any instrument which the Administrative Agent may deem
necessary or advisable to accomplish the purposes of this Security Agreement,
including:
(a) to ask, 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;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause
(a) above;
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Administrative Agent with respect to any of
the Collateral; and
(d) to perform the affirmative obligations of the Grantor
hereunder (including all obligations of the Grantor pursuant to
Section 4.8).
The Grantor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. Administrative Agent May Perform. If the Grantor fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by the
Grantor pursuant to Section 6.2.
SECTION 5.3. Administrative Agent Has No Duty. In addition to, and not
in limitation of, Section 2.4, the powers conferred on the Administrative Agent
hereunder are solely to protect its interest (on behalf of the Secured Parties)
in the Collateral and shall not impose any duty on it to exercise any such
powers. Except for reasonable care 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 or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
SECTION 5.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose as the Grantor
reasonably requests in writing at times other than upon the occurrence and
during the
-17-
continuance of any Event of Default, but failure of the Administrative Agent to
comply with any such request at any time shall not in itself be deemed a
failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain 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 on default under the U.C.C. (whether or not the U.C.C.
applies to the affected Collateral) and also may
(i) require the Grantor to, and the 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 to be
designated by the Administrative Agent which is reasonably
convenient to both parties, and
(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. The Grantor agrees
that, to the extent notice of sale shall be required by law,
at least ten days' prior notice to the 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 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) All cash proceeds received by the Administrative Agent in
respect of any sale of, collection from, or other realization upon,
all or any part of the Collateral shall be applied by the
Administrative Agent against, all or any part of the Obligations as
follows:
(i) first, to the payment of any amounts payable to
the Administrative Agent pursuant to Section 11.3 of the
Credit Agreement and Section 6.2;
-18-
(ii) second, to the equal and ratable payment of
Obligations, in accordance with each Secured Party's
Obligations owing to it under or pursuant to the Credit
Agreement or any other Loan Document, or under or pursuant to
any Hedging Obligation included in the Obligations as to each
Secured Party, applied
(A) first to fees and expense
reimbursements then due to such Secured Party,
(B) then to interest due to such Secured
Party,
(C) then to pay or prepay principal of the
Loans owing to, or to reduce the "credit exposure"
of, such Secured Party under such Hedging
Obligation, as the case may be, and
(D) then to pay the remaining outstanding
Obligations and cash collateralize all Letter of
Credit Outstandings;
(iii) third, without duplication of any amounts paid
pursuant to clause (b)(ii) above, to the Indemnified Parties
to the extent of any amounts owing pursuant to Section 11.4
of the Credit Agreement; and
(iv) fourth, to be held as additional collateral
security until the payment in full in cash of all of the
Obligations, the termination or expiration of all Letters of
Credit, the termination of all Rate Protection Agreements and
the termination of all Commitments, after which such
remaining cash proceeds shall be paid over to the Grantor or
to whomsoever may be lawfully entitled to receive such
surplus.
For purposes of this Security Agreement, the "credit exposure" at any
time of any Secured Party with respect to a Hedging Obligation to
which such Secured Party is a party shall be determined at such time
in accordance with the customary methods of calculating credit
exposure under similar arrangements by the counterparty to such
arrangements, taking into account potential interest rate movements
and the respective termination provisions and notional principal
amount and term of such Hedging Obligation.
SECTION 6.2. Indemnity and Expenses.
(a) The Grantor agrees to indemnify the Administrative Agent
from and against any and all claims, losses and liabilities arising
out of or resulting from this Security Agreement (including
enforcement of this Security Agreement), except claims, losses or
liabilities resulting from the Administrative Agent's gross negligence
or wilful misconduct.
-19-
(b) The Grantor will upon demand pay to the Administrative
Agent the amount of any and all reasonable expenses, including the
reasonable fees and disbursements of its counsel and of any experts
and agents, which the Administrative Agent may incur in connection
with
(i) the administration of this Security Agreement,
(ii) the custody, preservation, use or operation of,
or the sale of, collection from, or other realization upon,
any of the Collateral,
(iii) the exercise or enforcement of any of the
rights of the Administrative Agent or the Secured Parties
hereunder, and
(iv) the failure by the Grantor to perform or
observe any of the provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Security Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 7.2. Amendments; etc. No amendment to or waiver of any
provision of this Security Agreement nor consent to any departure by the
Grantor herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Administrative Agent (on behalf of the Lenders or the
Required Lenders, as the case may be), and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 7.3. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic communication) and mailed or telecopied or delivered to either
party hereto, addressed to such party at the address of such party specified in
the Credit Agreement. All such notices and other communications, when mailed
and properly addressed with postage prepaid or if properly addressed and sent
by pre-paid courier service, shall be deemed given when received; any such
notice or communication, if transmitted by telecopier, shall be deemed given
when transmitted and electronically confirmed.
SECTION 7.4. Section Captions. Section captions used in this Security
Agreement are for convenience of reference only, and shall not affect the
construction of this Security Agreement.
-20-
SECTION 7.5. Severability. Wherever possible each provision of this
Security Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Security Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Security Agreement.
SECTION 7.6. Counterparts. This Security Agreement may be executed by
the parties hereto in several counterparts, each of which shall be deemed an
original and all of which shall constitute together but one and the same
agreement.
SECTION 7.7. Governing Law, Entire Agreement, etc. THIS SECURITY
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY
OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN
RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK. THIS SECURITY AGREEMENT AND THE OTHER LOAN
DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ANY PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
-21-
IN WITNESS WHEREOF, the Grantor has caused this Security Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
XXXXX XXXXX
By Xxxxx Xxxxx Inc., a
general Partner
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and Chief Financial
Officer
By DRI I Inc., a general partner
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and Chief Financial
Officer
FLEET NATIONAL BANK,
as Administrative Agent
By /s/ Authorized Signatory
-------------------------------
Name:
Title:
-22-
SCHEDULE I
to Borrower
Security Agreement
Item A. Location of Equipment
Description Location
----------- --------
1.
2.
3.
Item B. Location of Inventory
Description Location
----------- --------
1.
2.
3.
Item C. Location of Lock Boxes
Contact
Bank Name and Address Account Number Person
--------------------- -------------- ------
1.
2.
3.
Item D. Place(s) of Business and Chief Executive Office
1.
2.
3.
Item E. Trade Names
1.
2.
3.
Item F. Merger or Other Corporate Reorganization
1.
2.
3.
Item G. Government Contracts
1.
2.
3.
SCHEDULE II
to Borrower
Security Agreement
Item A. Patents
Issued Patents
--------------
*Country Patent No. Issue Date Inventor(s) Title
-------- ---------- ---------- ----------- -----
Pending Patent Applications
---------------------------
*Country Serial No. Filing Date Inventor(s) Title
-------- ---------- ----------- ----------- -----
Patent Applications in Preparation
----------------------------------
Expected
*Country Docket No. Filing Date Inventor(s) Title
-------- ---------- ----------- ----------- -----
Item B. Patent Licenses
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
----------- -------- -------- --------- ---------- --------
--------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
SCHEDULE III
to Borrower
Security Agreement
Item A. Trademarks
Registered Trademarks
---------------------
*Country Trademark Registration No. Registration Date
-------- --------- ---------------- -----------------
Pending Trademark Applications
------------------------------
*Country Trademark Serial No. Filing Date
-------- --------- ---------- -----------
Trademark Applications in Preparation
-------------------------------------
Expected Products/
*Country Trademark Docket No. Filing Date Services
-------- --------- ---------- ----------- ---------
Item B. Trademark Licenses
*Country or Effective Expiration
Territory Trademark Licensor Licensee Date Date
----------- --------- -------- -------- --------- ----------
--------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
SCHEDULE IV
to Borrower
Security Agreement
Item A. Copyrights/Mask Works
Registered Copyrights/Mask Works
--------------------------------
*Country Registration No. Registration Date Author(s) Title
-------- ---------------- ----------------- --------- -----
Copyright/Mask Work Pending Registration Applications
-----------------------------------------------------
*Country Serial No. Filing Date Author(s) Title
-------- ---------- ----------- --------- -----
Copyright/Mask Work Registration Applications in Preparation
------------------------------------------------------------
Expected
*Country Docket No. Filing Date Author(s) Title
-------- ---------- ----------- ---------- -----
Item B. Copyright/Mask Work Licenses
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
----------- -------- -------- ---------- ----------- -------
--------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
SCHEDULE V
to Borrower
Security Agreement
Trade Secret or Know-How Licenses
---------------------------------
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
----------- -------- -------- --------- ----------- -------
--------
* List items related to the United States first for ease of
recordation. List items related to other countries next, grouped by
country and in alphabetical order by country name.
EXHIBIT A
to Borrower
Security Agreement
PATENT SECURITY AGREEMENT
This PATENT SECURITY AGREEMENT (this "Agreement"), dated as of
__________ __, ____, is made between XXXXX XXXXX, a New York general
partnership (the "Grantor"), and FLEET NATIONAL BANK, as Administrative Agent
(together with its successor(s) thereto in such capacity, the "Administrative
Agent") for each of the Secured Parties;
W I T N E S S E T H :
WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated
as of September 11, 1998 (amending and restating in its entirety that certain
Credit Agreement, dated as of February 13, 1998 (as amended prior to the
Amendment Effective Date, the "Existing Credit Agreement") (as so amended and
restated, and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among the Grantor, each of the Parent Guarantors named therein,
the various financial institutions as are, or may from time to time become,
parties thereto (each individually a "Lender" and collectively the "Lenders"),
DLJ Capital Funding, Inc., as the Syndication Agent, Fleet National Bank, as
the Administrative Agent and Credit Lyonnais New York Branch, as the
Documentation Agent, the Lenders and the Issuer have extended Commitments to
make Credit Extensions to the Grantor;
WHEREAS, in connection with the Credit Agreement, the Grantor has
executed and delivered an Amended and Restated Borrower Security Agreement,
dated as of September 11, 1998 (amending and restating in its entirety that
certain Borrower Security Agreement, dated as of February 13, 1998 (as amended
prior to the Amendment Effective Date, the "Existing Security Agreement") (as
so amended and restated, and together with all amendments, supplements,
restatements and other modifications, if any, from time to time thereafter made
thereto, the "Security Agreement");
WHEREAS, as a condition precedent to the making and maintenance of the
Credit Extensions under the Credit Agreement, the Grantor is required to
execute and deliver this Agreement and to grant to the Administrative Agent a
continuing security interest in all of the Patent Collateral (as defined below)
to secure all Obligations; and
WHEREAS, the Grantor has duly authorized the execution, delivery and
performance of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Lenders and the Issuer
to make and maintain Credit Extensions to the Grantor pursuant to the Credit
Agreement, and to induce the Secured Parties to enter into Rate Protection
Agreements, the Grantor agrees, for the benefit of each Secured Party, as
follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided (or incorporated by reference) in the
Security Agreement.
SECTION 2. Grant of Security Interest. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, to
secure all of the Obligations, the Grantor does hereby mortgage, pledge and
hypothecate to the Administrative Agent, and grant to the Administrative Agent
a security interest in, for its benefit and the benefit of each Secured Party,
all of the following property (the "Patent Collateral"), whether now owned or
hereafter acquired or existing by it:
(a) all letters patent and applications for letters patent
throughout the world, including all patent applications in preparation
for filing anywhere in the world and including each patent and patent
application referred to in Item A of Attachment 1 attached hereto;
(b) all reissues, divisions, continuations,
continuations-in-part, extensions, renewals and reexaminations of any
of the items described in clause (a);
(c) all patent licenses, including each patent license
referred to in Item B of Attachment 1 attached hereto; and
(d) all proceeds of, and rights associated with, the
foregoing (including license royalties and proceeds of infringement
suits), the right to xxx third parties for past, present or future
infringements of any patent or patent application, including any
patent or patent application referred to in Item A of Attachment 1
attached hereto, and for breach or enforcement of any patent license,
including any patent license referred to in Item B of Attachment 1
attached hereto, and all rights corresponding thereto throughout the
world.
SECTION 3. Security Agreement. This Agreement has been executed and
delivered by the Grantor for the purpose of registering the security interest
of the Administrative Agent in the Patent Collateral with the United States
Patent and Trademark Office and corresponding offices in other countries of the
world. The security interest granted hereby has been granted as a supplement
to, and not in limitation of, the security interest granted to the
Administrative Agent for its benefit and the benefit of each Secured Party
under the Security Agreement. The Security Agreement (and all rights and
remedies of the Administrative Agent and each Secured Party thereunder) shall
remain in full force and effect in accordance with its terms.
-2-
SECTION 4. Release of Security Interest. Upon payment in full in cash
of all Obligations, the termination or expiry of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments, the Administrative Agent shall, at the Grantor's expense, execute
and deliver to the Grantor all instruments and other documents as may be
necessary or proper to release the lien on and security interest in the Patent
Collateral which has been granted hereunder.
SECTION 5. Acknowledgment. The Grantor does hereby further acknowledge
and affirm that the rights and remedies of the Administrative Agent with
respect to the security interest in the Patent Collateral granted hereby are
more fully set forth in the Security Agreement, the terms and provisions of
which (including the remedies provided for therein) are incorporated by
reference herein as if fully set forth herein.
SECTION 6. Loan Document, etc. This Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions of the Credit Agreement.
SECTION 7. Counterparts. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
XXXXX XXXXX
By Xxxxx Xxxxx Inc., a general partner
By
-------------------------------
Name:
Title:
By DRI I Inc., a general partner
By
-------------------------------
Name:
Title:
FLEET NATIONAL BANK, as
Administrative Agent
By
-----------------------------------
Name:
Title:
-4-
ATTACHMENT 1
to Borrower Patent
Security Agreement
Item A. Patents
Issued Patents
--------------
*Country Patent No. Issue Date Inventor(s) Title
-------- ---------- ---------- ----------- -----
Pending Patent Applications
---------------------------
*Country Serial No. Filing Date Inventor(s) Title
-------- ---------- ----------- ----------- -----
Patent Applications in Preparation
----------------------------------
Expected
*Country Docket No. Filing Date Inventor(s) Title
-------- ---------- ----------- ----------- -----
Item B. Patent Licenses
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
----------- -------- -------- --------- ---------- -------
EXHIBIT B
to Borrower
Security Agreement
TRADEMARK SECURITY AGREEMENT
This TRADEMARK SECURITY AGREEMENT (as amended, supplemented, amended
and restated or otherwise modified from time to time, this "Agreement"), dated
as of September 11, 1998 (amending and restating the Trademark Security
Agreement, dated as of February 13, 1998 (the "Existing Agreement")), is made
between XXXXX XXXXX, a New York general partnership (the "Grantor"), and FLEET
NATIONAL BANK, as Administrative Agent (together with its successor(s) thereto
in such capacity, the "Administrative Agent") for each of the Secured Parties;
W I T N E S S E T H :
WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated
as of September 11, 1998 (amending and restating in its entirety that certain
Credit Agreement, dated as of February 13, 1998 (as amended prior to the
Amendment Effective Date, the "Existing Credit Agreement") (as so amended and
restated, and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among the Grantor, each of the Parent Guarantors named therein,
the various financial institutions as are, or may from time to time become,
parties thereto (each individually a "Lender" and collectively the "Lenders"),
DLJ Capital Funding, Inc., as the Syndication Agent, Fleet National Bank, as
the Administrative Agent and Credit Lyonnais New York Branch, as the
Documentation Agent, the Lenders and the Issuer have extended Commitments to
make Credit Extensions to the Grantor;
WHEREAS, in connection with the Credit Agreement, the Grantor has
executed and delivered an Amended and Restated Borrower Security Agreement,
dated as of September 11, 1998 (amending and restating in its entirety that
certain Borrower Security Agreement, dated as of February 13, 1998 (as amended
prior to the Amendment Effective Date, the "Existing Security Agreement") (as
so amended and restated, and together with all amendments, supplements,
restatements and other modifications, if any, from time to time thereafter made
thereto, the "Security Agreement");
WHEREAS, as a condition precedent to the making of the Credit
Extensions under the Existing Credit Agreement, the Grantor was required to
execute and deliver this Agreement and to grant to the Administrative Agent a
continuing security interest in all of the Trademark Collateral (as defined
below) to secure all Obligations; and
WHEREAS, the Grantor has requested that the Existing Agreement be
amended and restated in its entirety to read as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Lenders and the Issuer
to make and maintain Credit Extensions to the Grantor pursuant to the Credit
Agreement, and to induce the Secured Parties to enter into Rate Protection
Agreements, the Grantor agrees, for the benefit of each Secured Party, as
follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided (or incorporated by reference) in the
Security Agreement.
SECTION 2. Grant of Security Interest. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, to
secure all of the Obligations, the Grantor does hereby (x) confirm the
mortgage, pledge and grant that it previously made to the Administrative Agent
for its benefit and the ratable benefit of each of the Secured Parties pursuant
to the Existing Agreement and (y) not in limitation of such assignments,
pledges and grants but as a supplement thereto, assigns and pledges to the
Administrative Agent for its benefit and the ratable benefit of each of the
Secured Parties, and hereby grants to the Administrative Agent for its benefit
and the ratable benefit of each of the Secured Parties, a security interest in
all of the following property (the "Trademark Collateral"), whether now owned
or hereafter acquired or existing by it:
(a) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles,
service marks, certification marks, collective marks, logos, other
source of business identifiers, prints and labels on which any of the
foregoing have appeared or appear, designs and general intangibles of
a like nature (all of the foregoing items in this clause (a) being
collectively called a "Trademark"), now existing anywhere in the world
or hereafter adopted or acquired, whether currently in use or not, all
registrations and recordings thereof and all applications in
connection therewith, whether pending or in preparation for filing,
including registrations, recordings and applications in the United
States Patent and Trademark Office or in any office or agency of the
United States of America or any State thereof or any foreign country,
including those referred to in Item A of Attachment 1 attached hereto;
(b) all Trademark licenses, including each Trademark license
referred to in Item B of Attachment 1 attached hereto;
(c) all reissues, extensions or renewals of any of the items
described in clauses (a) and (b);
-2-
(d) all of the goodwill of the business connected with the
use of, and symbolized by the items described in, clauses (a) and (b);
and
(e) all proceeds of, and rights associated with, the
foregoing, including any claim by the Grantor against third parties
for past, present or future infringement or dilution of any Trademark,
Trademark registration or Trademark license, including any Trademark,
Trademark registration or Trademark license referred to in Item A and
Item B of Attachment 1 attached hereto, or for any injury to the
goodwill associated with the use of any such Trademark or for breach
or enforcement of any Trademark license.
SECTION 3. Security Agreement. This Agreement has been executed and
delivered by the Grantor for the purpose of registering the security interest
of the Administrative Agent in the Trademark Collateral with the United States
Patent and Trademark Office and corresponding offices in other countries of the
world. The security interest granted hereby has been granted as a supplement
to, and not in limitation of, the security interest granted to the
Administrative Agent for its benefit and the benefit of each Secured Party
under the Security Agreement. The Security Agreement (and all rights and
remedies of the Administrative Agent and each Secured Party thereunder) shall
remain in full force and effect in accordance with its terms.
SECTION 4. Release of Security Interest. Upon payment in full in cash
of all Obligations, the termination or expiry of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments, the Administrative Agent shall, at the Grantor's expense, execute
and deliver to the Grantor all instruments and other documents as may be
necessary or proper to release the lien on and security interest in the
Trademark Collateral which has been granted hereunder.
SECTION 5. Acknowledgment. The Grantor does hereby further acknowledge
and affirm that the rights and remedies of the Administrative Agent with
respect to the security interest in the Trademark Collateral granted hereby are
more fully set forth in the Security Agreement, the terms and provisions of
which (including the remedies provided for therein) are incorporated by
reference herein as if fully set forth herein.
SECTION 6. Loan Document, etc. This Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions of the Credit Agreement.
SECTION 7. Counterparts. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
XXXXX XXXXX
By Xxxxx Xxxxx Inc., a general partner
By
-------------------------------
Name:
Title:
By DRI I Inc., a general partner
By
-------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By
------------------------------------
Name:
Title:
-4-
ATTACHMENT 1
to Borrower Trademark
Security Agreement
Item A. Trademarks
Registered Trademarks
---------------------
*Country Trademark Registration No. Registration Date
-------- --------- ---------------- -----------------
Pending Trademark Applications
------------------------------
*Country Trademark Serial No. Filing Date
-------- --------- ---------- -----------
Trademark Applications in Preparation
-------------------------------------
Expected Products/
*Country Trademark Docket No. Filing Date Services
-------- --------- ---------- ----------- ---------
--------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
Item B. Trademark Licenses
*Country or Effective Expiration
Territory Trademark Licensor Licensee Date Date
----------- --------- -------- -------- --------- -----------
EXHIBIT C
to Borrower
Security Agreement
COPYRIGHT SECURITY AGREEMENT
This COPYRIGHT SECURITY AGREEMENT (this "Agreement"), dated as of
__________ __, ____, is made between XXXXX XXXXX, a New York general
partnership (the "Grantor"), and FLEET NATIONAL BANK, as Administrative Agent
(together with its successor(s) thereto in such capacity, the "Administrative
Agent") for each of the Secured Parties;
W I T N E S S E T H :
WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated
as of September 11, 1998 (amending and restating in its entirety that certain
Credit Agreement, dated as of February 13, 1998 (as amended prior to the
Amendment Effective Date, the "Existing Credit Agreement") (as so amended and
restated, and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among the Grantor, each of the Parent Guarantors named therein,
the various financial institutions as are, or may from time to time become,
parties thereto (each individually a "Lender" and collectively the "Lenders"),
DLJ Capital Funding, Inc., as the Syndication Agent, Fleet National Bank, as
the Administrative Agent and Credit Lyonnais New York Branch, as the
Documentation Agent, the Lenders and the Issuer have extended Commitments to
make Credit Extensions to the Grantor;
WHEREAS, in connection with the Credit Agreement, the Grantor has
executed and delivered an Amended and Restated Borrower Security Agreement,
dated as of September 11, 1998 (amending and restating in its entirety that
certain Borrower Security Agreement, dated as of February 13, 1998 (as amended
prior to the Amendment Effective Date, the "Existing Security Agreement") (as
so amended and restated, and together with all amendments, supplements,
restatements and other modifications, if any, from time to time thereafter made
thereto, the "Security Agreement");
WHEREAS, as a condition precedent to the making and maintenance of the
Credit Extensions under the Credit Agreement, the Grantor is required to
execute and deliver this Agreement and to grant to the Administrative Agent a
continuing security interest in all of the Copyright Collateral (as defined
below) to secure all Obligations; and
WHEREAS, the Grantor has duly authorized the execution, delivery and
performance of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Lenders and the Issuer
to make and maintain Credit Extensions to the Grantor pursuant to the Credit
Agreement, and to induce the Secured Parties to enter into Rate Protection
Agreements, the Grantor agrees, for the benefit of each Secured Party, as
follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided (or incorporated by reference) in the
Security Agreement.
SECTION 2. Grant of Security Interest. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, to
secure all of the Obligations, the Grantor does hereby mortgage, pledge and
hypothecate to the Administrative Agent, and grant to the Administrative Agent
a security interest in, for its benefit and the benefit of each Secured Party,
all of the following property (the "Copyright Collateral"), whether now owned
or hereafter acquired or existing by it, being all copyrights (including all
copyrights for semi-conductor chip product mask works) of the Grantor, whether
statutory or common law, registered or unregistered, now or hereafter in force
throughout the world including all of the Grantor's right, title and interest
in and to all copyrights registered in the United States Copyright Office or
anywhere else in the world and also including the copyrights referred to in
Item A of Attachment 1 attached hereto, and all applications for registration
thereof, whether pending or in preparation, all copyright licenses, including
each copyright license referred to in Item B of Attachment 1 attached hereto,
the right to xxx for past, present and future infringements of any thereof, all
rights corresponding thereto throughout the world, all extensions and renewals
of any thereof and all proceeds of the foregoing, including licenses,
royalties, income, payments, claims, damages and proceeds of suit.
SECTION 3. Security Agreement. This Agreement has been executed and
delivered by the Grantor for the purpose of registering the security interest
of the Administrative Agent in the Copyright Collateral with the United States
Copyright Office and corresponding offices in other countries of the world. The
security interest granted hereby has been granted as a supplement to, and not
in limitation of, the security interest granted to the Administrative Agent for
its benefit and the benefit of each Secured Party under the Security Agreement.
The Security Agreement (and all rights and remedies of the Administrative Agent
and each Secured Party thereunder) shall remain in full force and effect in
accordance with its terms.
SECTION 4. Release of Security Interest. Upon payment in full in cash
of all Obligations, the termination or expiry of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments, the Administrative Agent shall, at the Grantor's expense, execute
and deliver to the Grantor all instruments and other documents as may be
necessary or proper to release the lien on and security interest in the
Copyright Collateral which has been granted hereunder.
-2-
SECTION 5. Acknowledgment. The Grantor does hereby further acknowledge
and affirm that the rights and remedies of the Administrative Agent with
respect to the security interest in the Copyright Collateral granted hereby are
more fully set forth in the Security Agreement, the terms and provisions of
which (including the remedies provided for therein) are incorporated by
reference herein as if fully set forth herein.
SECTION 6. Loan Document, etc. This Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions of the Credit Agreement.
SECTION 7. Counterparts. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
XXXXX XXXXX
By Xxxxx Xxxxx Inc., a general partner
By
------------------------------
Name:
Title:
By DRI I Inc., a general partner
By
------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By
----------------------------------
Name:
Title:
-4-
ATTACHMENT 1
to Borrower Copyright
Security Agreement
Item A. Copyrights/Mask Works
Registered Copyrights/Mask Works
--------------------------------
*Country Registration No. Registration Date Author(s) Title
-------- ---------------- ----------------- --------- -----
Copyright/Mask Work Pending Registration Applications
-----------------------------------------------------
*Country Serial No. Filing Date Author(s) Title
-------- ---------- ----------- --------- -----
Copyright/Mask Work Registration Applications in Preparation
------------------------------------------------------------
Expected
*Country Docket No. Filing Date Author(s) Title
-------- ---------- ----------- --------- -----
--------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
Item B. Copyright/Mask Work Licenses
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
----------- -------- -------- --------- ---------- -------
