INTERCOMPANY SECURITY AGREEMENT
SECURITY AGREEMENT (this "AGREEMENT"), dated as of April 15, 1999,
between THE XXXXXXX COMPANY, INC. (with its successors, the "GRANTOR") and
SUNBEAM CORPORATION (the "PARENT").
W I T N E S S E T H :
WHEREAS, the Parent and the Grantor are parties to the Credit
Agreement, dated as of March 30, 1998 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Parent, the
subsidiary borrowers referred to therein (including the Grantor, the
"SUBSIDIARY BORROWERS"), the lenders party thereto (the "LENDERS"), Xxxxxx
Xxxxxxx Senior Funding, Inc., as Syndication Agent, Bank of America National
Trust and Savings Association, as Documentation Agent, and First Union
National Bank, as administrative agent (the "ADMINISTRATIVE AGENT");
WHEREAS, in connection with the Credit Agreement, the Parent
executed a Parent Pledge and Security Agreement, dated as of March 30, 1998
(as amended, supplemented or otherwise modified from time to time, the
"PARENT PLEDGE AND SECURITY AGREEMENT"), between the Parent and the
Administrative Agent, pursuant to which, among other things, all Pledged
Instruments (as defined in the Parent Pledge and Security Agreement) in favor
of the Parent, including the Coleman Intercompany Note (as hereafter
defined), are pledged to the Administrative Agent, for the benefit of the
Lenders, to secure the Secured Obligations (as defined in the Parent Pledge
and Security Agreement), including without limitation, the obligations of the
Parent under the Credit Agreement;
WHEREAS, the Grantor has executed an Amended and Restated
Subordinated Intercompany Note, dated April 6, 1998 (as amended, supplemented
or otherwise modified from time to time, the "COLEMAN INTERCOMPANY NOTE"), in
favor of the Parent;
WHEREAS, in order to secure its obligations under the Coleman
Intercompany Note, the Grantor has agreed to grant a continuing security
interest in and to the Collateral (as hereafter defined) to secure the
Secured Intercompany Obligations (as hereafter defined); and
WHEREAS, pursuant to this Agreement and the Parent Pledge and
Security Agreement under which the Coleman Intercompany Note has been pledged
to the Administrative Agent, the security interests in the Collateral granted
by the Grantor pursuant to this Agreement, including all of the right, title
and interest of the Parent, as Secured Party (as hereinafter defined)
hereunder, have been pledged and collaterally assigned to the Administrative
Agent, for the benefhereunder, have been pledged and collaterally assigned to
the Administrative Agent, for the benefit of the Lenders, to secure the
Secured Obligations (as hereafter defined) it of the Lenders, to secure the
Secured Obligations (as hereafter defined) in accordance with the terms of
the Parent Pledge and Security Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. DEFINITIONS. Terms defined in the Coleman Intercompany
Note and not otherwise defined herein have, as used herein, the respective
meanings provided for therein. The following additional terms, as used
herein, have the following respective meanings:
"ACCOUNTS" means all "ACCOUNTS" (as defined in the Uniform
Commercial Code) now owned or hereafter acquired by the Grantor, and shall
also mean and include all accounts receivable, contract rights, book debts,
notes, drafts and other obligations or indebtedness owing to the Grantor
arising from the sale, lease or exchange of goods or other property by it
and/or the performance of services by it (including, without limitation, any
such obligation which might be characterized as an account, contract right or
general intangible under the Uniform Commercial Code in effect in any
jurisdiction) and all of the Grantor's rights in, to and under all purchase
orders for goods, services or other property, and all of the Grantor's rights
to any goods, services or other property represented by any of the foregoing
(including returned or repossessed goods and unpaid sellers' rights of
rescission, replevin, reclamation and rights to stoppage in transit) and all
monies due to or to become due to the Grantor under all contracts for the
sale, lease or exchange of goods or other property and/or the performance of
services by it (whether or not yet earned by performance on the part of the
Grantor), in each case whether now in existence or hereafter arising or
acquired including, without limitation, the right to receive the proceeds of
said purchase orders and contracts and all collateral security and guarantees
of any kind given by any Person with respect to any of the foregoing.
"COLEMAN COLLATERAL DOCUMENTS" has the meaning set forth in the
Credit Agreement.
"COLEMAN MERGER EFFECTIVE DATE" has the meaning set forth in the
Credit Agreement.
"COLLATERAL" has the meaning set forth in Section 3.
"COPYRIGHT LICENSE" means any written agreement now or hereafter in
existence granting to the Grantor any right to publication as to which a
Copyright is in existence, including, without limitation, the material
license agreements described in Schedule 1 to Exhibit D hereto.
"COPYRIGHT SECURITY AGREEMENT" means the Copyright Security
Agreement executed and delivered by the Grantor in favor of the Parent,
substantially in the form of Exhibit D hereto, as the same may be amended
from time to time.
"COPYRIGHTS" means all the following: (i) all copyrights under the
laws of the United States or any other country, all registrations and
recordings thereof, and all applications for copyrights under the laws of the
United States or any other country, including, without limitation,
registrations, recordings and applications in the United States Copyright
Office or in
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any similar office or agency of the United States or any other country or any
political subdivision thereof, including, without limitation, those
registered copyrights described in Schedule 1 to Exhibit E hereto, and (ii)
all extensions thereof.
"DOCUMENTS" means all "DOCUMENTS" (as defined in the Uniform
Commercial Code) or other receipts covering, evidencing or representing
goods, now owned or hereafter acquired by the Grantor.
"EQUIPMENT" means all "EQUIPMENT" (as defined in the Uniform
Commercial Code) now owned or hereafter acquired by the Grantor, including
without limitation all motor vehicles, trucks, trailers, railcars and barges,
and all accessions thereto.
"GENERAL INTANGIBLES" means all "general intangibles" (as defined
in the Uniform Commercial Code) now owned or hereafter acquired by the
Grantor, including, without limitation, (i) all obligations or indebtedness
owing to the Grantor (other than Accounts) from whatever source arising, (ii)
all Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks,
Trademark Licenses, rights in intellectual property, goodwill, trade names,
service marks, trade secrets, permits and licenses, (iii) all rights or
claims in respect of refunds for taxes paid and (iv) all rights in respect of
any pension plan or similar arrangement maintained for employees of an ERISA
Affiliate (as defined in the Credit Agreement).
"INSTRUMENTS" means all "INSTRUMENTS", "CHATTEL PAPER" or "LETTERS
OF CREDIT" (each as defined in the Uniform Commercial Code) evidencing,
representing, arising from or existing in respect of, relating to, securing
or otherwise supporting the payment of, any of the Accounts, including (but
not limited to) promissory notes, drafts, bills of exchange and trade
acceptances, now owned or hereafter acquired by the Grantor.
"INVENTORY" means all "INVENTORY" (as defined in the Uniform
Commercial Code), now owned or hereafter acquired by the Grantor, wherever
located, and shall also mean and include, without limitation, all raw
materials and other materials and supplies, work-in-process and finished
goods and any products made or processed therefrom and all substances, if
any, commingled therewith or added thereto.
"LIEN" has the meaning set forth in the Credit Agreement.
"PATENT LICENSE" means any written agreement now or hereafter in
existence granting to the Grantor any right to practice any invention on
which a Patent is in existence, including, without limitation, the material
license agreements described in Schedule 1 to Exhibit B hereto.
"PATENT SECURITY AGREEMENT" means the Patent Security Agreement
executed and delivered by the Grantor in favor of the Parent, substantially
in the form of Exhibit B hereto, as the same may be amended from time to time.
"PATENTS" means all of the following: (i) all letters patent of the
United States or any other country, all registrations and recordings thereof,
and all applications for letters patent
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of the United States or any other country, including, without limitation,
registrations, recordings and applications in the United States Patent and
Trademark Office or in any similar office or agency of the United States or
any other country or any political subdivision thereof, including, without
limitation, those described in Schedule 1 to Exhibit C hereto, and (ii) all
reissues, continuations, continuations-in-part or extensions thereof.
"PERFECTION CERTIFICATE" means a certificate substantially in the
form of Exhibit A, completed and supplemented with the schedules and
attachments contemplated thereby to the satisfaction of the Parent, and duly
executed by the chief legal officer of the Grantor.
"PROCEEDS" means all proceeds of, and all other profits, products,
rents or receipts, in whatever form, arising from the collection, sale,
lease, exchange, assignment, licensing or other disposition of, or other
realization upon, collateral, including without limitation all claims of the
Grantor against third parties for loss of, damage to or destruction of, or
for proceeds payable under, or unearned premiums with respect to, policies of
insurance in respect of, any collateral, and any condemnation or requisition
payments with respect to any collateral, in each case whether now existing or
hereafter arising.
"SECURED INTERCOMPANY OBLIGATIONS" means the obligations of the
Grantor to the Parent secured under this Agreement, including without
limitation, (i) all principal of and interest (including, without limitation,
any interest which accrues after or would accrue but for the commencement of
any case, proceeding or other action relating to the bankruptcy, insolvency
or reorganization of the Grantor, whether or not allowed or allowable as a
claim in any such proceeding) on the Coleman Intercompany Note, (ii) all
other amounts payable by the Grantor under the Coleman Intercompany Note and
(iii) any renewals or extensions of any of the foregoing.
"SECURED OBLIGATIONS" means the Secured Obligations under and as
defined in the Parent Pledge and Security Agreement.
"SECURED OBLIGATIONS REPAYMENT DATE" means the date on which all of
the following shall have occurred: (A) the payment in full of the Secured
Obligations, (B) the termination of the Commitments under and as defined in
the Credit Agreement and (C) the expiration or termination of all Letters of
Credit issued pursuant to and as defined in the Credit Agreement.
"SECURED PARTY" means the Parent; PROVIDED that until the Secured
Obligations Repayment Date the Security Interests and the Secured Party's
power, rights, remedies, benefits, protections, authority and functions as
the Secured Party have been collaterally assigned by the Parent to the
Administrative Agent to the extent set forth in Section 8(b) hereof and the
Parent Pledge and Security Agreement.
"SECURITY INTERESTS" means the security interests in the Collateral
granted hereunder securing the Secured Intercompany Obligations.
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"SUBSIDIARY BORROWER SECURITY AGREEMENT" means the Subsidiary
Borrower Security Agreement, dated as of February 12, 1999, between the
Grantor and the Administrative Agent, as the same may be amended from time to
time.
"TRADEMARK LICENSE" means any written agreement now or hereafter in
existence granting to the Grantor any right to use any Trademark, including,
without limitation, the material license agreements described in Schedule 1
to Exhibit D hereto.
"TRADEMARK SECURITY AGREEMENT" means the Trademark Security
Agreement executed and delivered by the Grantor in favor of the Parent,
substantially in the form of Exhibit C hereto, as the same may be amended
from time to time.
"TRADEMARKS" means all of the following: (i) all trademarks, trade
names, corporate names, company names, business names, fictitious business
names, trade styles, service marks, logos, other source or business
identifiers, designs and general intangibles of like nature, now existing or
hereafter adopted or acquired, all registrations and recordings hereof, and
all applications in connection therewith, including, without limitation,
registrations, recordings and applications in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision thereof,
including, without limitation, those trademark registrations and applications
described in Schedule 1 to Exhibit C hereto, and (ii) all reissues,
extensions or renewals thereof.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as in
effect from time to time in the State of New York; PROVIDED that if by reason
of mandatory provisions of law, the perfection or the effect of perfection or
non-perfection of the Security Interest in any Collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than New York,
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as in effect in
such other jurisdiction for purposes of the provisions hereof relating to
such perfection or effect of perfection or non-perfection.
Unless otherwise defined herein, or unless the context otherwise
requires, all terms used herein which are defined in the Uniform Commercial
Code shall have the meanings therein stated.
Section 2. REPRESENTATIONS AND WARRANTIES. The Grantor
represents and warrants as follows:
(a) The Grantor has good and marketable title to all of the
Collateral, free and clear of any Liens, other than (i) Permitted Liens
under and as defined in the Credit Agreement and (ii) on and after the
Coleman Merger Effective Date, the Liens in favor of the Administrative
Agent under the Coleman Collateral Documents. The Grantor has taken all
actions necessary under the Uniform Commercial Code to perfect its interest
in any Accounts purchased or otherwise acquired by it, as against its
assignors and creditors of its assignors.
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(b) The Grantor has not performed any acts which might prevent the
Secured Party from enforcing any of the terms and conditions of this
Agreement or which would limit the Secured Party in any such enforcement
other than the execution and delivery of the Subsidiary Borrower Security
Agreement and the Coleman Collateral Documents. Other than financing
statements or other similar or equivalent documents or instruments with
respect to (i) the Security Interests, (ii) the Liens granted to the
Administrative Agent under the Subsidiary Borrower Security Agreement,
(iii) Liens granted to a Subsidiary of the Parent in connection with the
Existing Receivables Program and (iv) on and after the Coleman Merger
Effective Date, the Liens in favor of the Administrative Agent under the
Coleman Collateral Documents, no financing statement, mortgage, security
agreement or similar or equivalent document or instrument covering all or
any part of the Collateral is on file or of record in any jurisdiction in
which such filing or recording would be effective to perfect a Lien on such
Collateral. No Collateral is in the possession of any Person (other than
the Grantor) asserting any claim thereto or security interest therein,
except that (x) the Secured Party or its designee may have possession of
Collateral as contemplated hereby and (y) on and after the Coleman Merger
Effective Date, the Administrative Agent also may have possession of
Collateral in its own right as contemplated by the Coleman Collateral
Documents.
(c) The information set forth in the Perfection Certificate delivered
to the Secured Party prior to the execution of this Agreement is correct
and complete. Not later than 60 days following the date of such delivery,
the Grantor shall furnish to the Secured Party file search reports from
each Uniform Commercial Code filing office set forth in Schedule 7 to its
Perfection Certificate confirming the filing information set forth in such
Schedule.
(d) The Security Interests constitute valid security interests under
applicable law securing the Secured Intercompany Obligations. When Uniform
Commercial Code financing statements with the collateral description in the
form specified in Exhibit B shall have been filed in the offices specified
in the Perfection Certificate, the Security Interests shall constitute
perfected security interests in the Collateral (except Inventory in
transit) to the extent that a security interest therein may be perfected by
filing pursuant to the Uniform Commercial Code, prior to all other Liens
and rights of others therein other than (i) Permitted Liens under and as
defined in the Credit Agreement and (ii) on and after the Coleman Merger
Effective Date, the Liens in favor of the Administrative Agent under the
Coleman Collateral Documents. With respect to the collateral granted to
the Administrative Agent under the Subsidiary Borrower Security Agreement,
the Security Interests granted under this Agreement on such collateral
shall constitute perfected second priority security interests. To the
extent that the federal patent and trademark laws are applicable to the
perfection of security interests in patents and trademarks, respectively,
when the Patent Security Agreement and the Trademark Security Agreement
have been filed with the United States Patent and Trademark Office within 3
months of the date hereof, the Security Interests shall constitute valid
and perfected security interests in all right, title and interest of the
Grantor in Patents and Trademarks which are the subject of issued U.S.
Patents or patent applications or U.S. federal trademark registrations or
applications, prior to all other Liens and rights of others
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therein except for (i) Permitted Encumbrances under and as defined in the
Credit Agreement and (ii) on and after the Coleman Merger Effective Date,
the Liens in favor of the Administrative Agent. When the Copyright
Security Agreement has been filed with the United States Copyright Office,
the Security Interests shall constitute valid and perfected security
interests in all right, title and interest of the Grantor in Copyrights
which are the subject of registrations in the United States Copyright
Office, prior to all other Liens and rights of others therein except for
(i) Permitted Encumbrances under and as defined in the Credit Agreement and
(ii) on and after the Coleman Merger Effective Date, the Liens in favor of
the Administrative Agent.
(e) The Inventory and Equipment are insured by insurance, with
financially sound and reputable insurance companies or through programs of
self-insurance (including levels of self-insured retention), in such
amounts and against such risks and, in the case of self-insurance, at such
levels and in such amounts (including without limitation comprehensive
general liability insurance and product liability insurance) as are
customarily maintained by companies engaged in the same or similar
businesses of the Grantor operating in the same or similar locations, which
insurance shall name the Secured Party as the loss payee for the proceeds
of any policy relating to such insurance covering damage to tangible
property of the Grantor.
(f) All Inventory manufactured by the Grantor has or will have been
produced in compliance with the applicable requirements of the Fair Labor
Standards Act, as amended.
Section 3. THE SECURITY INTERESTS. (a) In order to secure the full
and punctual payment of the Secured Intercompany Obligations in accordance with
the terms thereof, and to secure the payment and performance of all the
obligations of the Grantor hereunder and under the Coleman Intercompany Loan
Documents, the Grantor hereby assigns and pledges to the Parent, as Secured
Party, a continuing security interest in and to all of the following property of
the Grantor, whether now owned or existing or hereafter acquired or arising and
regardless of where located (all being collectively referred to as the
"COLLATERAL"):
(i) Accounts;
(ii) Inventory;
(iii) General Intangibles;
(iv) Documents;
(v) Instruments;
(vi) Equipment;
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(vii) All books and records (including, without limitation,
customer lists, credit files, computer programs, printouts and other
computer materials and records) of the Grantor pertaining to any of the
Collateral; and
(viii) All Proceeds of all or any of the Collateral described
in clauses 3(a)(i) through 3(a)(vii) hereof and all collateral security and
guarantees given by any Person with respect to all or any of the Collateral
described in clauses 3(a)(i) through 3(a)(vii) hereof.
(b) The Security Interests are granted as security only and shall not
subject the Secured Party to, or transfer or in any way affect or modify, any
obligation or liability of the Grantor with respect to any of the Collateral or
any transaction in connection therewith.
(c) Notwithstanding the foregoing, the Collateral shall not include
any contracts or agreements, including without limitation, any Copyright
License, Patent License or Trademark License to the extent the inclusion thereof
would violate a prohibition on assignment that is effective under relevant law.
Section 4. FURTHER ASSURANCES; COVENANTS. (a) The Grantor will
not change (i) its name, identity or corporate structure in any manner unless
it shall have given the Secured Party not less than 10 days' prior notice
thereof and delivered an opinion of counsel with respect thereto in
accordance with Section 4(l); (ii) the location of its chief executive
office or chief place of business from a location described in its Perfection
Certificate to a location not described in its Perfection Certificate unless
it shall have given the Secured Party not less than 30 days' prior notice
thereof and delivered an opinion of counsel with respect thereto in
accordance with Section 4(l); or (iii) the locations where it keeps or holds
any Collateral (other than Inventory in transit) or any records relating
thereto from a location described in its Perfection Certificate to a location
not described in its Perfection Certificate unless it gives the Secured Party
notice within 10 days thereof and delivers an opinion of counsel with respect
thereto in accordance with Section 4(l). The Grantor shall not in any event
change the location of any Collateral if such change would cause the Security
Interests in such Collateral to lapse or cease to be perfected.
(b) The Grantor will, from time to time, at its expense, execute,
deliver, file and record any statement, assignment, instrument, document,
agreement or other paper and take any other action (including, without
limitation, any filings of financing or continuation statements under the
Uniform Commercial Code and any filings with the United States Patent and
Trademark Office or the United States Copyright Office) that from time to
time may be necessary or desirable, or that the Secured Party may request, in
order to create, preserve, perfect, confirm or validate the Security
Interests or to enable the Secured Party (including the Administrative Agent
as collateral assignee) to obtain the full benefits of this Agreement, or to
enable the Secured Party to exercise and enforce any of its rights, powers
and remedies hereunder with respect to any of the Collateral; PROVIDED that
with respect to foreign intellectual property, the Grantor shall only be
required to take such action as is reasonably requested by the Secured Party,
taking into account the value of the foreign intellectual property and the
expense associated with complying with the foregoing. To the extent
permitted by applicable law, the
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Grantor hereby authorizes the Secured Party to execute and file financing
statements or continuation statements without the Grantor's signature
appearing thereon. The Grantor agrees that a carbon, photographic,
photostatic or other reproduction of this Agreement or of a financing
statement is sufficient as a financing statement. The Grantor shall pay the
costs of, or incidental to, any recording or filing of any financing or
continuation statements concerning the Collateral.
(c) If any Collateral is at any time in the possession or control
of any warehouseman, bailee or any of the Grantor's agents or processors upon
the occurrence and during the continuance of an Event of Default and upon the
written request of the Secured Party, the Grantor shall notify such
warehouseman, bailee, agent or processor of the Security Interests created
hereby and to hold all such Collateral for the Secured Party's account
subject to the Secured Party's instructions.
(d) The Grantor shall keep full and accurate books and records
relating to the Collateral, and stamp or otherwise xxxx such books and
records in such manner as the Secured Party may reasonably require in order
to reflect the Security Interests.
(e) The Grantor will immediately deliver and pledge each
Instrument to the Secured Party, appropriately endorsed to the Secured Party,
PROVIDED that so long as no Event of Default shall have occurred and be
continuing, the Grantor may retain for collection in the ordinary course any
Instruments (other than checks and drafts constituting payments in respect of
Accounts, as to which the provisions of Section 4(f) shall apply) received by
it in the ordinary course of business and the Secured Party shall, promptly
upon request of the Grantor, make appropriate arrangements for making any
other Instrument pledged by the Grantor available to it for purposes of
presentation, collection or renewal (any such arrangement to be effected, to
the extent deemed appropriate to the Secured Party, against trust receipt or
like document).
(f) The Grantor shall use its best efforts to cause to be
collected from its account debtors, as and when due, any and all amounts
owing under or on account of each Account (including, without limitation,
Accounts which are delinquent, such Accounts to be collected in accordance
with lawful collection procedures) and shall apply forthwith upon receipt
thereof all such amounts as are so collected to the outstanding balance of
such Account. Subject to the rights of the Secured Party hereunder if an
Event of Default shall have occurred and be continuing, the Grantor may allow
in the ordinary course of business as adjustments to amounts owing under its
Accounts (1) an extension or renewal of the time or times of payment, or
settlement for less than the total unpaid balance, which the Grantor finds
appropriate in accordance with sound business judgment and (2) a refund or
credit due as a result of returned or damaged merchandise, all in accordance
with the Grantor's ordinary course of business consistent with its historical
collection practices. The costs and expenses (including, without limitation,
attorneys' fees) of collection, whether incurred by the Grantor or the
Secured Party, shall be borne by the Grantor.
(g) Upon the occurrence and during the continuance of any Event of
Default, upon request of the Secured Party, the Grantor will promptly notify
(and the Grantor hereby authorizes the Secured Party so to notify) each
account debtor in respect of any Account or Instrument that such Collateral
has been assigned to the Secured Party hereunder, and that any
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payments due or to become due in respect of such Collateral are to be made
directly to the Secured Party or its designee.
(h) The Grantor shall, (i) as soon as practicable after the date
hereof, in the case of any single piece of Equipment in excess of $250,000
now owned constituting goods in which a security interest is perfected by a
notation on the certificate of title or similar evidence of the ownership of
such goods, and (1) within 10 days of acquiring any other similar Equipment
(x) having a value in excess of $250,000 or (y) having a value in excess of
$100,000, if the aggregate of all such items owned by the Grantor at any time
is greater than $1,000,000, deliver to the Secured Party any and all
certificates of title, applications for title or similar evidence of
ownership of such Equipment and shall cause the Secured Party to be named as
lienholder on any such certificate of title or other evidence of ownership.
The Grantor shall promptly inform the Secured Party of any additions to or
deletions from the Equipment for any single piece of Equipment in excess of
$500,000 and shall not permit any such items to become a fixture to real
estate or an accession to other personal property.
(i) Without the prior written consent of the Secured Party, the
Grantor will not sell, lease, exchange, assign or otherwise dispose of, or
grant any option with respect to, any Collateral except that, subject to the
rights of the Secured Party hereunder if an Event of Default shall have
occurred and be continuing, the Grantor may (x) sell, lease or exchange
Inventory and surplus or worn-out Equipment in the ordinary course of
business and (y) consummate any Asset Sale or other disposition permitted by
the terms of the Credit Agreement.
(j) Within 10 days following the execution of this Agreement, the
Grantor will cause the Secured Party to be named as an insured party and loss
payee on each insurance policy covering risks relating to any of its
Inventory and Equipment. The Grantor will deliver to the Secured Party, upon
request of the Secured Party, the insurance policies for such insurance or
certificates of insurance evidencing such coverage. Each such insurance
policy shall include effective waivers by the insurer of all claims for
insurance premiums against the Secured Party or the Lenders, provide for
coverage to the Secured Party regardless of the breach by the Grantor of any
warranty or representation made therein, not be subject to co-insurance,
provide that upon the occurrence and during the continuation of an Event of
Default, all insurance proceeds in excess of $200,000 per claim shall be
adjusted with and payable to the Secured Party and provide that no
cancellation, termination or material modification thereof shall be effective
until at least 30 days after receipt by the Secured Party of notice thereof.
The Grantor hereby appoints the Secured Party as its attorney-in-fact to make
proof of loss, claim for insurance and adjustments with insurers, and to
execute or endorse all documents, checks or drafts in connection with
payments made as a result of any insurance policies.
(k) The Grantor will, promptly upon request, provide to the
Secured Party all information and evidence it may reasonably request
concerning the Collateral to enable the Secured Party to enforce the
provisions of this Agreement.
(l) In the event the Grantor proposes to take any action
contemplated by Section 4(a)(i), 4(a)(ii) or 4(a)(iii), at the request of the
Secured Party, the Grantor shall, at the Grantor's cost and expense, and
prior to taking any such proposed action cause to be delivered to
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the Administrative Agent an opinion of counsel, satisfactory to the
Administrative Agent, substantially in the form of Exhibit F or otherwise in
form and substance, and covering such matters relating to such actions,
reasonably satisfactory to the Administrative Agent.
(m) The Grantor shall notify the Secured Party immediately if it
knows, or has reason to know, that any application or registration relating
to any Copyright, Patent or Trademark which is material to the Grantor's
business may become abandoned or dedicated, or of any adverse determination
or development (including, without limitation, the institution of, or any
such determination or development in, any proceeding in the United States
Copyright Office, the United States Patent and Trademark Office, or any
court) regarding the Grantor's ownership of any Copyright, Patent or
Trademark which is material to the Grantor's business, its right to register
the same, or to keep and maintain the same. In the event that any material
Copyright, Patent, or Trademark is infringed, misappropriated or diluted in
any material respect by a third party, the Grantor shall notify the Secured
Party promptly after it learns thereof and shall, unless the Grantor shall
reasonably determine that any of the following actions would be unsuccessful
or not commercially reasonable (without accounting for any liens on the
proceeds of any recovery), promptly xxx for infringement, misappropriation or
dilution and to recover any and all damages for such infringement,
misappropriation or dilution, and take such other actions as the Grantor
shall reasonably deem appropriate under the circumstances to protect such
Copyright, Patent or Trademark. The Grantor will give the Secured Party
quarterly notice of its filing of any application for the registration of any
Copyright with the United States Copyright Office or any Patent or Trademark
with the United States Patent and Trademark Office, or with any similar
office or agency in any other country or any political subdivision thereof,
either itself or through any agent, employee or licensee. The Grantor will
execute and deliver any and all agreements, instruments, documents and papers
the Secured Party may reasonably request to evidence the Security Interests
in such Copyright, Patent or Trademark and the goodwill and general
intangibles of the Grantor relating thereto or represented thereby, and the
Grantor hereby constitutes the Secured Party its attorney-in-fact to execute
and file all such writings for the foregoing purposes to the extent that the
Grantor fails or refuses to do so within 10 days of a request from the
Secured Party, all acts of such attorney being hereby ratified and confirmed;
such power, being coupled with an interest, shall be irrevocable until the
Secured Intercompany Obligations are paid in full.
Section 5. GENERAL AUTHORITY. The Grantor hereby irrevocably
appoints the Secured Party its true and lawful attorney, with full power of
substitution, in the name of the Grantor, the Secured Party or otherwise, for
the sole use and benefit of the Secured Party, but at the Grantor's expense,
to the extent not prohibited by applicable law, to exercise, at any time and
from time to time while an Event of Default has occurred and is continuing
and the Secured Party has notified the Grantor of its decision to so
exercise, all or any of the following powers with respect to all or any of
the Collateral:
(a) to demand, xxx for, collect, receive and give acquittance for any and
all monies due or to become due upon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto,
11
(c) to sell, transfer, assign or otherwise deal in or with the same or
the proceeds or avails thereof, as fully and effectually as if the Secured
Party were the absolute owner thereof, and
(d) to extend the time of payment of any or all thereof and to make any
allowance and other adjustments with reference thereto;
PROVIDED that the Secured Party shall give the Grantor not less than ten
days' prior notice of the time and place of any sale or other intended
disposition of any of the Collateral, except any Collateral which is
perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market. Such notice constitutes "REASONABLE
NOTIFICATION" within the meaning of Section 9-504(3) of the Uniform
Commercial Code. The Grantor hereby ratifies and confirms all that the
Secured Party, as said attorney, shall do or cause to be done by virtue of
this Section 5 and the other provisions of this Agreement. All powers,
authorizations and agencies contained in this Agreement are coupled with an
interest and shall be irrevocable until the Secured Intercompany Obligations
are paid in full.
Section 6. REMEDIES UPON EVENT OF DEFAULT. (a) If any Event of
Default shall have occurred and be continuing, the Secured Party may exercise
all the rights of a secured party under the Uniform Commercial Code (whether
or not in effect in the jurisdiction where such rights are exercised) and, in
addition, the Secured Party may, without being required to give any notice,
except as herein provided or as may be required by mandatory provisions of
law, (i) apply the cash, if any, then held by it as Collateral and (ii) if
there shall be no such cash or if such cash shall be insufficient to pay all
the Secured Intercompany Obligations in full, sell the Collateral or any part
thereof at public or private sale, for cash, upon credit or for future
delivery, and at such price or prices as the Secured Party may deem
satisfactory. Any Lender or Sunbeam Entity may be the purchaser of any or
all of the Collateral so sold at any public sale (or, if the Collateral is of
a type customarily sold in a recognized market or is of a type which is the
subject of widely distributed standard price quotations, at any private
sale). The Grantor will execute and deliver such documents and take such
other action as the Secured Party deems necessary or advisable in order that
any such sale may be made in compliance with law. Upon any such sale the
Secured Party shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale
shall hold the Collateral so sold absolutely and free from any claim or right
of whatsoever kind, including any equity or right of redemption of the
Grantor which may be waived, and the Grantor, to the extent permitted by law,
hereby specifically waives all rights of redemption, stay or appraisal which
it has or may have under any law now existing or hereafter adopted. The
notice (if any) of such sale shall (1) in the case of a public sale, state
the time and place fixed for such sale, and (2) in the case of a private
sale, state the day after which such sale may be consummated. Any such
public sale shall be held at such time or times within ordinary business
hours and at such place or places as the Secured Party may fix in the notice
of such sale. At any such sale the Collateral may be sold in one lot as an
entirety or in separate parcels, as the Secured Party may determine. The
Secured Party shall not be obligated to make any such sale pursuant to any
such notice. The Secured Party may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the same may be so adjourned. In
the case of any sale of all or any part of the
12
Collateral on credit or for future delivery, the Collateral so sold may be
retained by the Secured Party until the selling price is paid by the
purchaser thereof, but the Secured Party shall not incur any liability in the
case of the failure of such purchaser to take up and pay for the Collateral
so sold and, in the case of any such failure, such Collateral may again be
sold upon like notice. The Secured Party, instead of exercising the power of
sale herein conferred upon it, may proceed by a suit or suits at law or in
equity to foreclose the Security Interests and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
(b) For the purpose of enforcing any and all rights and remedies
under this Agreement the Secured Party may, at any time when an Event of
Default has occurred and is continuing, (i) require the Grantor to, and the
Grantor agrees that it will, at the Grantor's expense and upon the request of
the Secured Party, forthwith assemble all or any part of the Collateral as
directed by the Secured Party and make it available at a place designated by
the Secured Party which is, in its opinion, reasonably convenient to the
Secured Party and the Grantor, whether at the premises of the Grantor or
otherwise, (ii) to the extent permitted by applicable law, enter, with or
without process of law and without breach of the peace, any premises where
any of the Collateral is or may be located, and without charge or liability
to it seize and remove such Collateral from such premises, (iii) have access
to and use the Grantor's books and records relating to the Collateral and
(iv) prior to the disposition of the Collateral, store or transfer it without
charge in or by means of any storage or transportation facility owned or
leased by the Grantor, process, repair or recondition it or otherwise prepare
it for disposition in any manner and to the extent the Secured Party deems
appropriate and, in connection with such preparation and disposition, use
without charge any Trademark, trade name, Copyright, Patent or technical
process used by the Grantor. The Secured Party may also render any or all of
the Collateral unusable at the Grantor's premises and may dispose of such
Collateral on such premises without liability for rent or costs.
(c) Without limiting the generality of the foregoing, if any Event
of Default has occurred and is continuing,
(i) the Secured Party may license, or sublicense, whether
general, special or otherwise, and whether on an exclusive or
non-exclusive basis, any Copyrights, Patents or Trademarks included in
the Collateral throughout the world for such term or terms, on such
conditions and in such manner as the Secured Party shall in its sole
discretion determine; PROVIDED that such licenses and or sublicenses
do not violate the terms of any other license to which the Grantor is
a party;
(ii) the Secured Party may (without assuming any obligations
or liability thereunder), at any time and from time to time, enforce
(and shall have the exclusive right to enforce) against any licensee
or sublicensee all rights and remedies of the Grantor in, to and under
any Copyright Licenses, Patent Licenses or Trademark Licenses and take
or refrain from taking any action under any thereof, and the Grantor
hereby releases the Secured Party from, and agrees to hold the Secured
Party free and harmless from and against any claims arising out of,
any lawful action so taken or omitted to be taken with respect
thereto; and
13
(iii) upon request by the Secured Party, the Grantor will
execute and deliver to the Secured Party a power of attorney, in form
and substance satisfactory to the Secured Party, for the
implementation of any lease, assignment, license, sublicense, grant of
option, sale or other disposition of a Copyright, Patent or Trademark.
In the event of any such disposition pursuant to this Section, the
Grantor shall, upon request, and upon the execution of reasonable
confidentiality agreements, supply its know-how and expertise relating
to the manufacture and sale of the products bearing Trademarks or the
products or services made or rendered in connection with Patents, and
its customer lists and other records relating to such Patents or
Trademarks and to the distribution of said products, to the Secured
Party.
Section 7. APPLICATION OF PROCEEDS. (a) Upon the occurrence and
during the continuance of an Event of Default, the proceeds of any sale of,
or other realization upon, all or any part of the Collateral and any cash
held shall be applied by the Secured Party in the following order of
priorities:
FIRST, to payment of the expenses of such sale or other realization,
including reasonable compensation to agents and counsel for the Secured
Party, and all expenses, liabilities and advances incurred or made by the
Secured Party in connection therewith, and any other unreimbursed expenses
for which the Secured Party is to be reimbursed pursuant to Section 11
hereof;
SECOND, to the payment of unpaid principal (including all capitalized
interest) of the Secured Intercompany Obligations in accordance with the
provisions of the Coleman Intercompany Note;
THIRD, to the payment of accrued but unpaid interest on the Secured
Intercompany Obligations in accordance with the provisions of the Coleman
Intercompany Note;
FOURTH, to the ratable payment of all other Secured Intercompany
Obligations, until all Secured Intercompany Obligations shall have been
paid in full; and
FINALLY, to payment to the Grantor or its successors or assigns, or as
a court of competent jurisdiction may direct, of any surplus then remaining
from such proceeds.
(b) The Secured Party may make distributions hereunder in cash or in
kind or, on a ratable basis, in any combination thereof.
Section 8. APPOINTMENT OF ADMINISTRATIVE AGENT AS BAILEE;
ASSIGNMENT TO ADMINISTRATIVE AGENT; ACKNOWLEDGEMENT OF GRANTOR.
(a) In order to further perfect and protect the security interests
granted to the Administrative Agent under the Parent Pledge and Security
Agreement, including the Parent's pledge thereunder of the Security
Interests, the Parent hereby authorizes and appoints the Administrative Agent
to hold on the Parent's behalf and as its agent all Collateral granted
14
hereunder for purposes of possession and control under the Uniform Commercial
Code or other applicable law. The Administrative Agent, for itself and its
successors, hereby accepts such authorization and appointment and the Parent
hereby releases the Administrative Agent from any liability whatsoever (other
than liability resulting from the Administrative Agent's willful misconduct
or gross negligence) in connection with such authorization and appointment.
This authorization and appointment are a power coupled with an interest and
are irrevocable. It is understood and agreed that the Administrative Agent
may also hold Collateral for its own benefit.
(b) Effective immediately following the grant of the Security
Interests pursuant to Section 3 hereof and the foregoing authorization and
appointment of the Administrative Agent as its nominee and agent, and as more
fully provided in the Parent Pledge and Security Agreement, the Parent
pledges and collaterally assigns, until the Secured Obligations Repayment
Date, to the Administrative Agent all of its right, title and interest as the
Secured Party hereunder, including, without limitation, all of the powers,
rights, remedies, benefits, protections, authority and functions (but not the
obligations) of the Secured Party hereunder and the Administrative Agent, for
itself and its successors, hereby accepts such pledge and collateral
assignment. The foregoing pledge and collateral assignment are powers
coupled with an interest and shall be irrevocable until the Secured
Obligations Repayment Date. In furtherance of such pledge and collateral
assignment, the Parent will not exercise any rights or remedies under this
Agreement without the prior written consent of the Administrative Agent and
will exercise any of such powers, rights, remedies, benefits, protections,
authority and functions of the Secured Party under this Agreement as directed
to do so by the Administrative Agent; PROVIDED that after the occurrence and
during the continuance of a Default or an Event of Default, all such powers,
rights, remedies, benefits, protections, authority and functions shall be for
the sole use and benefit of, and shall be exercised solely by, the
Administrative Agent for the benefit of the Lenders and any conflict between
the interests of the Lenders and the interests of the Parent is hereby waived
by the Parent.
(c) The Grantor hereby acknowledges (i) receipt of a copy of the
Parent Pledge and Security Agreement; (ii) that pursuant to the Parent Pledge
and Security Agreement and this Agreement, the Parent has assigned to the
Administrative Agent, as collateral security for the Secured Obligations, all
of its right, title and interest in (A) the Secured Intercompany Obligations,
(B) the Coleman Intercompany Note and this Agreement and (C) the Security
Interests and any other collateral for the Secured Intercompany
Obligations now or hereafter granted by the Grantor to or for the benefit of
the Parent under this Agreement or any other Coleman Intercompany Loan
Document; and (iii) that pursuant to this Agreement and the Parent Pledge and
Security Agreement, the Administrative Agent is authorized, in accordance
with the terms of this Agreement and the Parent Pledge and Security
Agreement, to exercise the powers, rights, remedies, benefits, protections,
authority and functions of the Secured Party against the Grantor under this
Agreement and otherwise in respect of the Secured Intercompany Obligations.
(d) Notwithstanding anything to the contrary contained in this
Agreement, the Grantor hereby consents to the foregoing and independently
acknowledges and agrees, for the direct benefit of the Administrative Agent
and the Lenders, until the Secured Obligations Repayment Date, as follows:
15
(i) the representations and warranties made by the Grantor in this
Agreement shall inure to the benefit of the Administrative Agent and the
Lenders and each reference in such representations and warranties to the
Secured Party shall be deemed to be references to the Administrative Agent
for such purpose;
(ii) upon the occurrence and continuance of an Event of Default, the
Administrative Agent shall have the exclusive right to enforce , in the
name and stead of the Parent, all of the covenants and agreements made by
the Grantor under this Agreement and to exercise all of the powers, rights,
remedies, benefits, protections, authority and functions of the Secured
Party hereunder;
(iii) without the prior written consent of the Administrative Agent,
the Grantor shall not enter into any amendment, waiver or other
modification of the Secured Intercompany Obligations, the Coleman
Intercompany Note or the Coleman Intercompany Loan Documents;
(iv) the Grantor shall comply with all payment instructions delivered
by the Administrative Agent with respect to the Secured Intercompany
Obligations, if such instructions are accompanied by a written
representation that a Default or an Event of Default has occurred and is
continuing; and
(v) all of the indemnification, expense reimbursement,
authorizations and exculpatory provisions contained in this Agreement in
favor of the Secured Party shall also inure to the benefit of the
Administrative Agent.
(e) In accordance with Section 4(b), and in furtherance of the
Grantor's acknowledgments and agreements contained in Section 8(c) and
Section 8(d), the Grantor and the Secured Party shall as promptly as
practicable after the date hereof execute and deliver to the Administrative
Agent an amendment to this Agreement, and such other additional documents and
instruments (and cause to be delivered in connection therewith an opinion of
counsel), in each case as reasonably requested by, and in form and substance
reasonably satisfactory to, the Administrative Agent, pursuant to which the
Grantor shall grant directly to the Administrative Agent, for the benefit of
the Lenders, security interests in the Collateral to secure the Secured
Obligations, PROVIDED that the amount of the Secured Obligations so secured
(and any recourse to the Collateral, whether to collect the Secured
Obligations or the Secured Intercompany Obligations) shall in no event exceed
the amount of the Secured Intercompany Obligations outstanding from time to
time.
Section 9. EXCULPATORY PROVISIONS
(a) The Secured Party is irrevocably authorized to take all such
action as is provided to be taken by it as Secured Party hereunder and all
other action reasonable incidental thereto. As to any matters not expressly
provided for herein (including, without limitation, the timing and methods of
realization upon the Collateral) the Secured Party shall act or refrain from
acting in accordance with its discretion.
16
(b) Beyond the exercise of reasonable care in the custody thereof,
the Secured Party shall have no duty as to any Collateral in its possession
or control or in the possession or control of any agent or bailee or any
income thereon or as to the preservation of rights against prior parties or
any other rights pertaining thereto. The Secured Party shall be deemed to
have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own property, and shall not
be liable or responsible for any loss or damage to any of the Collateral, or
for any diminution in the value thereof, by reason of the act or omission of
any warehouseman, carrier, forwarding agency, consignee or other agent or
bailee selected by the Secured Party in good faith. Neither the Secured
Party nor any of its officers, directors, employees or agents shall be liable
for failure to demand, collect or realize upon any of the Collateral or for
any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Grantor or any other Person
or to take any other action whatsoever with regard to the Collateral or any
part thereof. The powers conferred on the Secured Party hereunder are solely
to protect the Secured Party's interests in the Collateral and shall not
impose any duty upon the Secured Party to exercise any such powers. The
Secured Party shall be accountable only for amounts that it actually receives
as a result of the exercise of such powers, and neither it nor any of its
officers, directors, employees or agents shall be responsible to the Grantor
for any act or failure to act hereunder.
Section 10. EXPENSES. In the event that any Grantor fails to
comply with the provisions of this Agreement, such that the value of any
Collateral or the validity, perfection, rank or value of any Security
Interest is thereby diminished or potentially diminished or put at risk, the
Secured Party may, but shall not be required to, effect such compliance on
behalf of the Grantor, and the Grantor shall reimburse the Secured Party for
the costs thereof on demand. All insurance expenses and all expenses of
protecting, storing, warehousing, appraising, insuring, handling,
maintaining, and shipping the Collateral, any and all excise, property,
sales, and use taxes imposed by any state, federal, or local authority on any
of the Collateral, or in respect of periodic appraisals and inspections of
the Collateral to the extent the same may be requested by the Secured Party
from time to time, or in respect of the sale or other disposition thereof,
shall be borne and paid by the Grantor; and if the Grantor fails to promptly
pay any portion thereof when due, the Secured Party may, at its option, but
shall not be required to, pay the same and charge the Grantor's account
therefor, and the Grantor agrees to reimburse the Secured Party therefor on
demand. All sums so paid or incurred by the Secured Party for any of the
foregoing and any and all other sums for which the Grantor may become liable
hereunder and all costs and expenses (including attorneys' fees, legal
expenses and court costs) reasonably incurred by the Secured Party in
enforcing or protecting the Security Interests or any of their rights or
remedies under this Agreement, shall, together with interest thereon until
paid at the rate applicable to the Coleman Intercompany Note plus 2%, be
additional Secured Obligations hereunder.
Section 11. TERMINATION OF SECURITY INTERESTS; RELEASE OF
COLLATERAL. (a) Upon the repayment in full of all Secured Intercompany
Obligations, the Security Interests shall terminate and all rights to the
Collateral shall revert to the Grantor.
(b) Upon the consummation of any sale or exchange of Collateral
permitted by clause (x) of Section 4(i), the Security Interests created
hereby in the Collateral subject to such
17
sale or exchange (but not in any Proceeds arising from such sale or exchange)
shall cease immediately without any further action on the part of the Secured
Party.
(c) Except as provided otherwise in the Credit Agreement, upon the
consummation of any Asset Sale or other disposition permitted by the terms of
the Credit Agreement, the Secured Party shall release the Collateral (but not
any Proceeds thereof) sold pursuant to such Asset Sale or other disposition.
(d) Other than the releases of Collateral effected by subsection
(b) or permitted pursuant to subsection (c), prior to the Secured Obligations
Repayment Date, the Secured Party shall not release any of the Collateral
without the prior written consent of the Administrative Agent and the
Lenders.
(e) Upon any termination of the Security Interests or release of
Collateral in accordance with this Section, the Secured Party will, at the
expense of the Grantor, execute and deliver to the Grantor such documents as
the Grantor shall reasonably request to evidence the termination of the
Security Interests or the release of such Collateral, as the case may be.
Section 12. NOTICES. All notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy to the address and telecopy number of such party and the
Administrative Agent set forth on the signature pages hereof. Each Party
shall provide copies of all such notices and other communications in a like
manner to the Administrative Agent. Any party hereto and the Administrative
Agent may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto and the
Administrative Agent. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt.
Section 13. WAIVERS, NON-EXCLUSIVE REMEDIES. No failure on the
part of the Secured Party to exercise, and no delay in exercising and no
course of dealing with respect to, any right under this Agreement or any
other Coleman Intercompany Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise by the Secured Party of any right
under this Agreement or any other Coleman Intercompany Loan Document preclude
any other or further exercise thereof or the exercise of any other right.
The rights in this Agreement and the Coleman Intercompany Loan Documents are
cumulative and are not exclusive of any other remedies provided by law.
Section 14. SUCCESSORS AND ASSIGNS. This Agreement is for the
benefit of the Parent and its successors and assigns (including the
Administrative Agent for the benefit of the Lenders pursuant to the Parent
Pledge and Security Agreement and Section 8 hereof). This Agreement shall be
binding on the Grantor and its successors and assigns.
Section 15. CHANGES IN WRITING. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing, signed by the Grantor, the Parent and the Administrative
Agent.
18
Section 16. NEW YORK LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, except as
otherwise required by mandatory provisions of law and except to the extent
that remedies provided by the laws of any jurisdiction other than New York
are governed by the laws of such jurisdiction.
Section 17. SEVERABILITY. If any provision hereof is invalid or
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in favor of the Parent,
the Administrative Agent and the Lenders in order to carry out the intentions
of the parties hereto as nearly as may be possible; and (ii) the invalidity
or unenforceability of any provision hereof in any jurisdiction shall not
affect the validity or enforceability of such provision in any other
jurisdiction.
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
THE XXXXXXX COMPANY, INC.
By /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President & Treasurer
Address for Notices:
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
telecopy: (000) 000-0000
SUNBEAM CORPORATION
By /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
Address for Notices:
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxx
telecopy: (000) 000-0000
ACKNOWLEDGED AND AGREED:
FIRST UNION NATIONAL BANK,
as Administrative Agent
By /s/ X. X. Xxxxxxx
-----------------
Name: X. X. Xxxxxxx
Title: Senior Vice President
Address for Notices:
One First Union Center
301 South College Street, DC-5
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
telecopy: (000) 000-0000
EXHIBIT A
PERFECTION CERTIFICATE
The undersigned, the chief legal officer of THE XXXXXXX COMPANY,
INC., a Delaware corporation (the "GRANTOR"), hereby certifies with reference
to the Intercompany Security Agreement dated as of April __, 1999 between the
Grantor and SUNBEAM CORPORATION, (terms defined therein being used herein as
therein defined), to each Secured Party, the Administrative Agent and each
Lender as follows:
1. NAMES. (a) The exact company name of the Grantor as it appears
in its certificate of incorporation or certificate of formation is as follows:
(b) Set forth below is each other company name the Grantor has had
within the past five years, together with the date of the relevant change:
(c) Except as set forth in Schedule 1, the Grantor has not changed
its identity or company structure in any way within the past five years.
[Changes in identity or company structure would include mergers, consolidations
and acquisitions, as well as any change in the form, nature or jurisdiction of
organization. If any such change has occurred, include in Schedule 1 the
information required by paragraphs 1, 2 and 3 of this certificate as to each
acquiree or constituent party to a merger or consolidation.]
(d) The following is a list of all other names (including trade
names or similar appellations) used by the Grantor or any of its divisions or
other business units at any time during the past five years:
2. Current Locations. (a) The chief executive office of the
Grantor is located at the following address:
MAILING ADDRESS COUNTY STATE
(b) The following are all the locations where the Grantor
maintains any books or records relating to any Accounts:
MAILING ADDRESS COUNTY STATE
(c) The following are all the places of business of the Grantor
not identified above:
MAILING ADDRESS COUNTY STATE
(d) The following are all the locations where the Grantor
maintains any Inventory not identified above:
MAILING ADDRESS COUNTY STATE
(e) The following are the names and addresses of all Persons other
than the Grantor which have possession of any of the Grantor's Inventory:
MAILING ADDRESS COUNTY STATE
3. PRIOR LOCATIONS. (a) Set forth below is the information
required by subparagraphs 2(a), 2(b) and 2(c) above with respect to each
location or place of business maintained by the Grantor at any time during
the past five years:
(b) Set forth below is the information required by subparagraphs
2(d) and 2(e) above with respect to each location or bailee where or with
whom Inventory has been lodged at any time during the past four months:
4. UNUSUAL TRANSACTIONS. Except as set forth in Schedule 4, all
Accounts have been originated by the Grantor and all Inventory and Equipment
has been acquired by the Grantor in the ordinary course of its business.
5. FILE SEARCH REPORTS. Attached hereto as Schedule 5(A) is a
true copy of a file search report conducted by [Lexis] in each jurisdiction
identified in paragraph 2 or 3 above with respect to each name set forth in
paragraph 1 above. Attached hereto as Schedule 5(B) is a
2
true copy of each financing statement or other filing identified in such file
search reports as supplied to us by [Lexis].
6. UNIFORM COMMERCIAL CODE FILINGS. A duly signed financing
statement on Form UCC-1 in substantially the form of Schedule 6(A) hereto
will be duly filed in the Uniform Commercial Code filing office in each
jurisdiction identified in paragraph 2 hereof.
7. SCHEDULE OF FILINGS. Within 30 days of the date hereof a
schedule in the form of Schedule 7 hereto setting forth filing information
with respect to the filings described in paragraph 6 above will be delivered
to the Secured Party.
8. FILING FEES. All filing fees and taxes payable in connection
with the filings described in paragraph 6 above have been or will be paid.
IN WITNESS WHEREOF, we have hereunto set our hands this __ day of
April, 1999.
THE XXXXXXX COMPANY, INC.
By
Name:
Title:
3
EXHIBIT B
DESCRIPTION OF COLLATERAL
EXHIBIT A
TO
UCC FINANCING STATEMENT
DEBTOR: SECURED PARTY: ASSIGNEE:
The Xxxxxxx Company, Inc. Sunbeam Corporation First Union National Bank, as
0000 Xxxxxxxxx Xxxxxx Xxxxx 2381 Executive Center Drive Administrative Agent
Xxxx Xxxxx, Xxxxxxx 00000 Xxxx Xxxxx, Xxxxxxx 00000 One First Union Center
301 South College Street, DC-5
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
All of the following property now owned or at any time hereafter
acquired by the Debtor or in which the Debtor now has or at any time in the
future may acquire any right, title or interest (collectively, the
"COLLATERAL"):
1. Accounts;
2. Inventory;
3. General Intangibles;
4. Documents;
5. Instruments;
6. Equipment;
7. the Pledged Securities, and all organizational documents,
together with all of its rights and privileges thereunder, with respect to
the Pledged Securities, and all income and profits thereon, and all
interest, dividends and other payments and distributions with respect
thereto;
8. all indebtedness now or hereafter owed to the Debtor by any of
its Subsidiaries (whether or not evidenced by Instruments);
9. all investments made by the Debtor in any of its Subsidiaries;
10. all Investment Property;
11. all books and records (including, without limitation, customer
lists, credit files, computer programs, printouts and other computer
materials and records) of the Debtor pertaining to any of the Collateral;
and
12. all Proceeds of all or any of the collateral described in clauses
1 through 11 hereof, including without limitation, all dividends or other
income from the Investment Property or the Pledged Securities, collections
thereon or distributions or payments with respect thereto, and all
collateral security and guarantees given by any Person with respect to all
or any of the collateral described in clauses 1 through 11 hereof.
As used herein, the following terms shall have the following meanings:
"ACCOUNTS " means all "ACCOUNTS" (as defined in the Uniform
Commercial Code) now owned or hereafter acquired by the Debtor, and shall
also mean and include all accounts receivable, contract rights, book debts,
notes, drafts and other obligations or indebtedness owing
2
to the Debtor arising from the sale, lease or exchange of goods or other
property by it and/or the performance of services by it (including,
without limitation, any such obligation which might be characterized as
an account, contract right or general intangible under the Uniform
Commercial Code in effect in any jurisdiction) and all of the Debtor's
rights in, to and under all purchase orders for goods, services or other
property, and all of the Debtor's rights to any goods, services or other
property represented by any of the foregoing (including returned or
repossessed goods and unpaid sellers' rights of rescission, replevin,
reclamation and rights to stoppage in transit) and all monies due to or
to become due to the Debtor under all contracts for the sale, lease or
exchange of goods or other property and/or the performance of services
by it (whether or not yet earned by performance on the part of the
Debtor), in each case whether now in existence or hereafter arising or
acquired including, without limitation, the right to receive the
proceeds of said purchase orders and contracts and all collateral
security and guarantees of any kind given by any Person with respect to
any of the foregoing.
"COPYRIGHT LICENSE" means any written agreement now or hereafter in
existence granting to the Debtor any right to publication as to which a
Copyright is in existence.
"COPYRIGHTS" means all the following: (i) all copyrights under the
laws of the United States or any other country, all registrations and
recordings thereof, and all applications for copyrights under the laws of
the United States or any other country, including, without limitation,
registrations, recordings and applications in the United States Copyright
Office or in any similar office or agency of the United States or any other
country or any political subdivision thereof and (ii) all extensions
thereof.
"DOCUMENTS" means all "DOCUMENTS" (as defined in the Uniform
Commercial Code) or other receipts covering, evidencing or representing
goods, now owned or hereafter acquired by the Debtor.
"EQUIPMENT" means all "EQUIPMENT" (as defined in the Uniform
Commercial Code) now owned or hereafter acquired by the Debtor, including
without limitation all motor vehicles, trucks, trailers, railcars and
barges, and all accessions thereto.
"GENERAL INTANGIBLE" means all "general intangibles" (as defined in
the Uniform Commercial Code) now owned or hereafter acquired by the Debtor,
including, without limitation, (i) all obligations or indebtedness owing to
the Debtor (other than Accounts) from whatever source arising, (ii) all
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks,
Trademark Licenses, rights in intellectual property, goodwill, trade names,
service marks, trade secrets, permits and licenses, (iii) all rights or
claims in respect of refunds for taxes paid and (iv) all rights in respect
of any pension plan or similar arrangement maintained for employees.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"INSTRUMENTS" means all "INSTRUMENTS", "CHATTEL PAPER" or "LETTERS OF
CREDIT" (each as defined in the Uniform Commercial Code) evidencing,
representing, arising from or existing in respect of, relating to, securing
or otherwise supporting the payment of, any of the Accounts, including (but
not limited to) promissory notes, drafts, bills of exchange and trade
acceptances, now owned or hereafter acquired by the Debtor.
"INTERCOMPANY PLEDGE AND SECURITY AGREEMENT" means the Intercompany
Pledge and Security Agreement, dated as of April 15, 1999, between the
Debtor and the Secured Party, as amended, supplemented or otherwise
modified from time to time.
3
"INVENTORY" means all "INVENTORY" (as defined in the Uniform
Commercial Code), now owned or hereafter acquired by the Debtor, wherever
located, and shall also mean and include, without limitation, all raw
materials and other materials and supplies, work-in-process and finished
goods and any products made or processed therefrom and all substances, if
any, commingled therewith or added thereto.
"INVESTMENT PROPERTY" means all "INVESTMENT PROPERTY" as such term is
defined in Section 9-115 of the Uniform Commercial Code.
"PATENT LICENSE" means any written agreement now or hereafter in
existence granting to the Debtor any right to practice any invention on
which a Patent is in existence.
"PATENTS" means all of the following: (i) all letters patent of the
United States or any other country, all registrations and recordings
thereof, and all applications for letters patent of the United States or
any other country, including, without limitation, registrations, recordings
and applications in the United States Patent and Trademark Office or in any
similar office or agency of the United States or any other country or any
political subdivision thereof, and (ii) all reissues, continuations,
continuations-in-part or extensions thereof.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLEDGED INSTRUMENTS" means any instrument pledged or required to be
pledged to the Secured Party pursuant to the Intercompany Pledge and
Security Agreement.
"PLEDGED SECURITIES" means the Pledged Instruments and the Pledged
Stock.
"PLEDGED STOCK" means any capital stock, membership or limited
liability interest or other equity interests required to be pledged to the
Secured Party pursuant to the Intercompany Pledge and Security Agreement.
"PROCEEDS" means all proceeds of, and all other profits, products,
rents or receipts, in whatever form, arising from the collection, sale,
lease, exchange, assignment, licensing or other disposition of, or other
realization upon, collateral, including without limitation all claims of
the Debtor against third parties for loss of, damage to or destruction of,
or for proceeds payable under, or unearned premiums with respect to,
policies of insurance in respect of, any collateral, and any condemnation
or requisition payments with respect to any collateral, in each case
whether now existing or hereafter arising.
"SUBSIDIARY" means any subsidiary of the Debtor.
"TRADEMARK LICENSE" means any written agreement now or hereafter in
existence granting to the Debtor any right to use any Trademark.
"TRADEMARKS" means all of the following: (i) all trademarks, trade
names, corporate names, company names, business names, fictitious business
names, trade styles, service marks, logos, other source or business
identifiers, designs and general intangibles of like nature, now existing
or hereafter adopted or acquired, all registrations and recordings hereof,
and all applications in connection therewith, including, without
limitation, registrations, recordings and applications in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, and (ii) all reissues, extensions or renewals thereof.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
EXHIBIT C
PATENT SECURITY AGREEMENT
(PATENTS, PATENT APPLICATIONS AND PATENT LICENSES)
WHEREAS, THE XXXXXXX COMPANY (the "GRANTOR"), owns, or in the case
of licenses, is party to, the Patent Collateral (as defined below);
WHEREAS, the Grantor has executed an Amended and Restated
Subordinated Intercompany Note, dated April 6, 1998, as amended, in favor of
Sunbeam Corporation (the "COLEMAN INTERCOMPANY NOTE");
WHEREAS, pursuant to the terms of an Intercompany Security
Agreement, dated as of the date hereof (as such agreement may be further
amended from time to time, the "SECURITY AGREEMENT"; unless otherwise
specifically defined herein, each term used herein which is defined in the
Security Agreement has the meaning assigned to such term in the Security
Agreement), between the Grantor and Sunbeam Corporation, together with its
successors and assigns, the "GRANTEE"), the Grantor has granted to the
Grantee, a continuing security interest in substantially all the assets of
the Grantor, including all right, title and interest of the Grantor in, to
and under the Patent Collateral (as defined herein), whether now owned or
existing or hereafter acquired or arising, to secure the Secured Intercompany
Obligations, including without limitation, the obligations of the Grantor
under the Coleman Intercompany Note;
WHEREAS, pursuant to the Security Agreement and the Parent Pledge
and Security Agreement under which the Coleman Intercompany Note has been
pledged to the Administrative Agent, the Security Interests in the Collateral
granted by the Grantor pursuant to this Agreement and the Security Agreement,
including all of the Grantee's right, title and interest as Secured Party,
have been collaterally assigned to the Administrative Agent, for the benefit
of the Lenders, to secure the Secured Obligations in accordance with the
terms of the Parent Pledge and Security Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, in order to secure the full
and punctual payment of the Secured Intercompany Obligations in accordance
with the terms thereof and to secure the performance of all the obligations
of the Grantor hereunder and under the Coleman Intercompany Loan Documents,
the Grantor hereby grants the Grantee, a continuing security interest in all
of the Grantor's right, title and interest in and to all of the following
(all of the following items or types of property being herein collectively
referred to as the "PATENT COLLATERAL"), whether now owned or existing or
hereafter acquired or arising:
(i) each Patent owned by Grantors, including, without
limitation, each Patent referred to in Schedule 1 hereto;
(ii) each Patent License, including, without limitation, each
Patent License identified in Schedule 1 hereto; and
(iii) all proceeds of and revenues from the foregoing, including,
without limitation, all proceeds of and revenues from any claim by the
Grantor against third parties for past, present or future infringement
of any Patent owned by the Grantor, including, without limitation, any
Patent referred to in Schedule 1 hereto (including, without
limitation, any such Patent issuing from any application referred to
in Schedule I hereto), and all rights and benefits of the Grantor
under any Patent License, including, without limitation, any Patent
License identified in Schedule 1 hereto.
The Grantor hereby irrevocably constitutes and appoints Grantee and
any officer or agent thereof, with full power of substitution, as its true
and lawful attorney-in-fact with full power and authority in the name of the
Grantor or in its name, from time to time, in the Grantee's discretion, so
long as any Event of Default has occurred and is continuing, to take with
respect to the Patent Collateral any and all appropriate action which the
Grantor might take with respect to the Patent Collateral and to execute any
and all documents and instruments which may be necessary or desirable to
carry out the terms of this Patent Security Agreement and to accomplish the
purposes hereof.
Except to the extent permitted by the Credit Agreement, the Grantor
agrees not to sell, license, exchange, assign or otherwise transfer or
dispose of, or grant any rights with respect to, or mortgage or otherwise
encumber, any of the Patent Collateral, except (i) for licenses issued to
contract manufacturers in the ordinary course of business and (ii) to the
extent such activities would not adversely effect the value of the Patent
Collateral taken as a whole.
The foregoing security interest is granted in conjunction with the
security interests granted to the Grantee pursuant to the Security Agreement.
The Grantor does hereby further acknowledge and affirm that the rights and
remedies of the Grantee 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 are incorporated by reference herein as if
fully set forth herein.
The Grantor hereby further acknowledges and agrees that all of the
Grantee's right, title and interest as Grantee under this Agreement and as
"Secured Party" under the Security Agreement, and all of the Collateral
granted pursuant to the Coleman Intercompany Collateral Documents, have been
collaterally assigned by the Grantee pursuant to the Parent Pledge and
Security Agreement to the Administrative Agent, for the benefit of the
Lenders and that contemporaneously herewith the Grantee shall execute and
deliver a separate patent security agreement in the form attached as Exhibit
A hereto in favor of the Administrative Agent to further evidence such
collateral assignment.
2
IN WITNESS WHEREOF, the Grantor has caused this Patent Security
Agreement to be duly executed by its officer thereunto duly authorized as of
the ____ day of April, 1999.
THE XXXXXXX COMPANY, INC.
By
----------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED:
SUNBEAM CORPORATION,
as Secured Party
By
----------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, ______________________, a Notary Public in and for said
County, in the State aforesaid, DO HEREBY CERTIFY, that ______________________,
_______________ of THE XXXXXXX COMPANY, INC., personally known to me to be the
same person whose name is subscribed to the foregoing instrument as such
_________________, appeared before me this day in person and acknowledged that
(s)he signed, executed and delivered the said instrument as her/his own free
and voluntary act and as the free and voluntary act of said Company, for the
uses and purposes therein set forth being duly authorized so to do.
GIVEN under my hand and Notarial Seal this ___ day of April,
1999.
[Seal]
Signature of notary public
My Commission expires __________
EXHIBIT D
TRADEMARK SECURITY AGREEMENT
(TRADEMARKS, TRADEMARK REGISTRATIONS, TRADEMARK
APPLICATIONS AND TRADEMARK LICENSES)
WHEREAS, THE XXXXXXX COMPANY, INC. (the "GRANTOR"), owns, or in the
case of licenses, is party to, the Trademark Collateral (as defined below);
WHEREAS, the Grantor has executed an Amended and Restated
Subordinated Intercompany Note, dated April 6, 1998, as amended, in favor of
Sunbeam Corporation ("COLEMAN INTERCOMPANY NOTE");
WHEREAS, pursuant to the terms of an Intercompany Security
Agreement, dated as of the date hereof (as such agreement may be further
amended from time to time, the "SECURITY AGREEMENT"; unless otherwise
specifically defined herein, each term used herein which is defined in the
Security Agreement has the meaning assigned to such term in the Security
Agreement), between the Grantor and Sunbeam Corporation, together with its
successors and assigns, the "GRANTEE"), the Grantor has granted to the
Grantee, a continuing security interest in substantially all the assets of
the Grantor, including all right, title and interest of the Grantor in, to
and under the Trademark Collateral (as defined herein), whether now owned or
existing or hereafter acquired or arising, to secure the Secured Intercompany
Obligations, including without limitation, the obligations of the Grantor
under the Coleman Intercompany Note;
WHEREAS, pursuant to the Security Agreement and the Parent Pledge
and Security Agreement under which the Coleman Intercompany Note has been
pledged to the Administrative Agent, the Security Interests in the Collateral
granted by the Grantor pursuant to this Agreement and the Security Agreement,
including all of the Grantee's right, title and interest as Secured Party,
have been collaterally assigned to the Administrative Agent, for the benefit
of the Lenders, to secure the Secured Obligations in accordance with the
terms of the Parent Pledge and Security Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, in order to secure the full
and punctual payment of the Secured Intercompany Obligations in accordance
with the terms thereof and to secure the performance of all the obligations
of the Grantor hereunder and under the Coleman Intercompany Loan Documents,
the Grantor hereby grants the Grantee, a continuing security interest in all
of the Grantor's right, title and interest in and to all of the following
(all of the following items or types of property being herein collectively
referred to as the "TRADEMARK COLLATERAL"), whether now owned or existing or
hereafter acquired or arising:
(i) each Trademark owned by the Grantor, including, without
limitation, each Trademark registration and application referred to in
Schedule 1 hereto, and all of the goodwill of the business connected
with the use of, or symbolized by, each Trademark;
(ii) each Trademark License including, without limitation, each
Trademark License identified in Schedule 1 hereto; and
(iii) all proceeds of and revenues from the foregoing, including,
without limitation, all proceeds of and revenues from any claim by the
Grantor against third parties for past, present or future unfair
competition with, or violation of intellectual property rights in
connection with or injury to, or infringement or dilution of, any
Trademark owned by the Grantor, or for injury to the goodwill
associated with any such Trademark, including, without limitation, any
Trademark referred to in Schedule 1 hereto, and all rights and
benefits of the Grantor under any Trademark License, including,
without limitation, any Trademark License identified in Schedule 1
hereto.
The Grantor hereby irrevocably constitutes and appoints the Grantee
and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full power and authority in the name of
the Grantor or in its name, from time to time, in the Grantee's discretion,
so long as any Event of Default has occurred and is continuing, to take with
respect to the Trademark Collateral any and all appropriate action which the
Grantor might take with respect to the Trademark Collateral and to execute
any and all documents and instruments which may be necessary or desirable to
carry out the terms of this Trademark Security Agreement and to accomplish
the purposes hereof.
Except to the extent permitted by the Credit Agreement, the Grantor
agrees not to sell, license, exchange, assign or otherwise transfer or
dispose of, or grant any rights with respect to, or mortgage or otherwise
encumber, any of the foregoing Trademark Collateral except for (i) licenses
issued to contract manufacturers in the ordinary course of business and (ii)
to the extent such activities would not adversely affect the value of the
Trademark Collateral taken as a whole.
The foregoing security interest is granted in conjunction with the
security interests granted to the Grantee pursuant to the Security Agreement.
The Grantor does hereby further acknowledge and affirm that the rights and
remedies of the Grantee 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 are incorporated by reference
herein as if fully set forth herein.
The Grantor hereby further acknowledges and agrees that all of the
Grantee's right, title and interest as Grantee under this Agreement and as
Secured Party under the Security Agreement, and all of the Collateral granted
pursuant to the Coleman Intercompany Collateral Documents, have been
collaterally assigned by the Grantee pursuant to the Parent Pledge and
Security Agreement to the Administrative Agent, for the benefit of the
Lenders and that contemporaneously herewith the Grantee shall execute and
deliver a separate trademark security agreement in the form attached as
Exhibit A hereto in favor of the Administrative Agent to further evidence
such collateral assignment.
2
IN WITNESS WHEREOF, the Grantor has caused this Trademark Security
Agreement to be duly executed by its officer thereunto duly authorized as of the
____ day of April, 1999.
THE XXXXXXX COMPANY, INC.
By
Name:
Title:
ACKNOWLEDGED AND AGREED:
SUNBEAM CORPORATION,
as Secured Party
By
-----------------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, ______________________, a Notary Public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY, that _________________________,
_______________ of THE XXXXXXX COMPANY, INC., personally known to me to be the
same person whose name is subscribed to the foregoing instrument as such
_________________, appeared before me this day in person and acknowledged that
(s)he signed, executed and delivered the said instrument as her/his own free and
voluntary act and as the free and voluntary act of said Company, for the uses
and purposes therein set forth being duly authorized so to do.
GIVEN under my hand and Notarial Seal this ___ day of April, 1999.
[Seal]
Signature of notary public
My Commission expires __________
EXHIBIT E
COPYRIGHT SECURITY AGREEMENT
(COPYRIGHTS, COPYRIGHT REGISTRATIONS, COPYRIGHT
APPLICATIONS AND COPYRIGHT LICENSES)
WHEREAS, THE XXXXXXX COMPANY, INC. (the "GRANTOR"), owns, or in the
case of licenses, is party to, the Copyright Collateral (as defined below);
WHEREAS, the Grantor has executed an Amended and Restated
Subordinated Intercompany Note, dated April 6, 1998, as amended, in favor of
Sunbeam Corporation ("COLEMAN INTERCOMPANY NOTE");
WHEREAS, pursuant to the terms of an Intercompany Security
Agreement, dated as of the date hereof (as such agreement may be further
amended from time to time, the "SECURITY AGREEMENT"; unless otherwise
specifically defined herein, each term used herein which is defined in the
Security Agreement has the meaning assigned to such term in the Security
Agreement), between the Grantor and Sunbeam Corporation, together with its
successors and assigns, the "GRANTEE"), the Grantor has granted to the
Grantee, a continuing security interest in substantially all the assets of
the Grantor, including all right, title and interest of the Grantor in, to
and under the Copyright Collateral (as defined herein), whether now owned or
existing or hereafter acquired or arising, to secure the Secured Intercompany
Obligations, including without limitation, the obligations of the Grantor
under the Coleman Intercompany Note;
WHEREAS, pursuant to the Security Agreement and the Parent Pledge
and Security Agreement under which the Coleman Intercompany Note has been
pledged to the Administrative Agent, the security interests in the Collateral
granted by the Grantor pursuant to this Agreement and the Security Agreement,
including all of the Grantee's right, title and interest as Secured Party
have been collaterally assigned to the Administrative Agent, for the benefit
of the Lenders, to secure the Secured Obligations in accordance with the
terms of the Parent Pledge and Security Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, in order to secure the full
and punctual payment of the Secured Intercompany Obligations in accordance
with the terms thereof and to secure the performance of all the obligations
of the Grantor hereunder and under the Coleman Intercompany Loan Documents,
the Grantor hereby grants the Grantee, a continuing security interest in all
of the Grantor's right, title and interest in and to all of the following
(all of the following items or types of property being herein collectively
referred to as the "COPYRIGHT COLLATERAL"), whether now owned or existing or
hereafter acquired or arising:
(i) each Copyright owned by the Grantor, including, without
limitation, each Copyright registration or application therefor
referred to in Schedule 1 hereto;
(ii) each Copyright Licenses, including, without limitation,
each Copyright License identified in Schedule 1 hereto; and
(iii) all proceeds of and revenues from, accounts and general
intangibles arising out of, the foregoing, including, without
limitation, all proceeds of and revenues from any claim by the Grantor
against third parties for past, present or future infringement of any
Copyright, including, without limitation, any Copyright owned by the
Grantor referred to in Schedule 1 annexed hereto, and all rights and
benefits of the Grantor under any Copyright License, including,
without limitation, any Copyright License identified in Schedule 1
hereto.
The Grantor hereby irrevocably constitutes and appoints the Grantee
and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full power and authority in the name of
the Grantor or in its name, from time to time, in the Grantee's discretion,
so long as any Event of Default has occurred and is continuing, to take with
respect to the Copyright Collateral any and all appropriate action which the
Grantor might take with respect to the Copyright Collateral and to execute
any and all documents and instruments which may be necessary or desirable to
carry out the terms of this Copyright Security Agreement and to accomplish
the purposes hereof.
Except to the extent permitted by the Credit Agreement, the Grantor
agrees not to sell, license, exchange, assign or otherwise transfer or
dispose of, or grant any rights with respect to, or mortgage or otherwise
encumber, any of the foregoing Copyright Collateral, except (i) with respect
to the issuance of copyright licenses and (ii) to the extent such activities
would not adversely affect the value of the Copyright Collateral taken as a
whole.
The foregoing security interest is granted in conjunction with the
security interests granted to the Grantee pursuant to the Security Agreement.
The Grantor does hereby further acknowledge and affirm that the rights and
remedies of the Grantee 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 are incorporated by reference
herein as if fully set forth herein.
The Grantor hereby further acknowledges and agrees that all of the
Grantee's right, title and interest as Grantee under this Agreement and as
"Secured Party" under the Security Agreement, and all of the Collateral
granted pursuant to the Coleman Intercompany Collateral Documents, have been
collaterally assigned by the Grantee pursuant to the Parent Pledge and
Security Agreement to the Administrative Agent, for the benefit of the
Lenders and that contemporaneously herewith the Grantee shall execute and
deliver a separate copyright security agreement in the form attached as
Exhibit A hereto in favor of the Administrative Agent to further evidence
such collateral assignment.
2
IN WITNESS WHEREOF, the Grantor has caused this Copyright Security
Agreement to be duly executed by its officer thereunto duly authorized as of
the _____ day of April, 1999.
THE XXXXXXX COMPANY, INC.
By
Name:
Title:
ACKNOWLEDGED AND AGREED:
SUNBEAM CORPORATION,
as Secured Party
By
--------------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, ______________________, a Notary Public in and for said
County, in the State aforesaid, DO HEREBY CERTIFY, that
_________________________, _______________ of THE XXXXXXX COMPANY, INC.,
personally known to me to be the same person whose name is subscribed to the
foregoing instrument as such _________________, appeared before me this day in
person and acknowledged that (s)he signed, executed and delivered the said
instrument as her/his own free and voluntary act and as the free and voluntary
act of said Company, for the uses and purposes therein set forth being duly
authorized so to do.
GIVEN under my hand and Notarial Seal this ___ day of April,
1999.
[Seal]
Signature of notary public
My Commission expires __________
EXHIBIT F
OPINION OF COUNSEL FOR GRANTOR
* * * *
1. The Security Agreement creates a valid security interest, for
the benefit of the Secured Party, in all Collateral (as defined in the
Intercompany Security Agreement) to the extent the Uniform Commercial Code,
the United States Copyright Act (the "CA"), the United States Patent Act (the
"PA") or the United States Trademark Act (the "TA") is applicable thereto
(the "SECURITY INTEREST").
2. Uniform Commercial Code financing statements and amendments
thereto (collectively, the "FINANCING STATEMENTS") have been filed in the
filing offices listed in Schedule 7 to the Perfection Certificate (the
"FILING JURISDICTIONS"), which are all of the offices in which filings are
required to perfect the Security Interest, to the extent the Security
Interest may be perfected by filing under the Uniform Commercial Code, and no
further filing or recording of any document or instrument or other action
will be required so to perfect the Security Interest, except that (i)
continuation statements with respect to each Financing Statement must be
filed within six months prior to the last day of each consecutive five-year
period beginning on the filing date; (ii) additional filings may be necessary
if the Grantor changes its name, identity or company structure or the
jurisdiction in which its places of business, its chief executive office or
the Collateral are located; and (iii) we express no opinion on the perfection
of, or need for further filing or recording to perfect, the Security Interest
in goods now or hereafter located in any jurisdiction other than the Filing
Jurisdictions.
3. Based solely upon our review of the search report dated ______
of [search firm], a copy of which is attached hereto, there are
(a) no Uniform Commercial Code financing statements which name
the Grantor as debtor or seller and cover any of the Collateral, other
than the Financing Statements and the financing statements with
respect to (i) Permitted Liens annexed as Schedule 5(A) to the
Perfection Certificate, (ii) the Liens granted to the Administrative
Agent under the Subsidiary Borrower Security Agreement and (iii) Liens
granted to a Subsidiary of the Parent in connection with the Existing
Receivables program, listed in the available records in the Uniform
Commercial Code filing offices set forth in paragraphs 2 and 3 of the
Perfection Certificate, which include all of the offices prescribed
under the Uniform Commercial Code as the offices in which filings
should have been made to perfect security interests in the Collateral;
and
(b) no notices of the filing of any federal tax lien (filed
pursuant to Section 6323 of the Internal Revenue Code) or any lien of
the Pension Benefit Guaranty Corporation (filed pursuant to Section
4068 of ERISA) covering any of the Collateral listed in the available
records in the Uniform Commercial Code filing office in state of
Grantor's chief executive office, which is the only office having
files which must be searched in order to fully determine the existence
of notices of the filing of federal tax liens (filed pursuant to
Section 6323 of the
Internal Revenue Code) and liens of the Pension Benefit Guaranty
Corporation (filed pursuant to Section 4068 of ERISA) on the
Collateral.
4. The Security Interest validly secures the payment of all
future loans made by the Parent to the Grantor pursuant to the Coleman
Intercompany Note after the date hereof, whether or not at the time such
loans are made an Event of Default or any event not within the control of the
Parent has relieved or may relieve the Parent from their obligations to make
such loans, and is perfected to the extent set forth in paragraph 2 above
with respect to such future loans. Insofar as the priority thereof is
governed by the Uniform Commercial Code, the Security Interest has the same
priority with respect to such future loans as it does with respect to loans
made on the date hereof.
2
