Contract
Exhibit
10.2
EXECUTION
COPY
|
dated
as of
September
28, 2007,
among
THE
SUBSIDIARIES OF SPECTRUM BRANDS, INC.
IDENTIFIED
HEREIN
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
the Collateral Agent
|
|
Definitions
|
||
|
Credit
Agreement
|
1
|
|
|
Other
Defined Terms
|
1
|
|
|
Guarantee
|
||
|
5
|
||
|
Guarantee
|
6
|
|
|
Guarantee
of Payment
|
6
|
|
|
No
Limitations
|
7
|
|
|
Reinstatement
|
7
|
|
|
Agreement
To Pay; Subrogation
|
7
|
|
|
Information
|
||
|
Security
Interests in Personal Property
|
||
|
Security
Interest
|
7
|
|
|
Representations
and Warranties
|
8
|
|
|
Covenants
|
9
|
|
|
Other
Actions
|
12
|
|
|
Remedies
|
||
|
Remedies
Upon Default
|
14
|
|
|
Application
of Proceeds
|
16
|
|
|
Indemnity,
Subrogation and Subordination
|
||
|
Indemnity
and Subrogation
|
17
|
|
|
Contribution
and Subrogation
|
17
|
|
|
Subordination
|
18
|
|
|
Miscellaneous
|
||
|
Notices
|
18
|
|
|
Waivers;
Amendment
|
18
|
|
|
Collateral
Agent’s Fees and Expenses; Indemnification
|
19
|
|
|
Successors
and Assigns
|
19
|
|
|
Survival
of Agreement
|
20
|
|
|
Counterparts;
Effectiveness; Several Agreement
|
20
|
|
|
Severability
|
20
|
|
|
Right
of Set-Off
|
21
|
|
|
Governing
Law; Jurisdiction; Consent to Service of Process
|
21
|
|
|
WAIVER
OF JURY TRIAL
|
22
|
|
|
Headings
|
22
|
|
|
Security
Interest Absolute
|
22
|
|
|
Termination
or Release
|
22
|
|
|
Additional
Subsidiaries
|
23
|
|
|
Collateral
Agent Appointed Attorney-in-Fact
|
23
|
|
|
Schedules
|
|
| Subsidiary Loan Parties | |
|
Exhibits
|
|
|
Form
of Supplement
|
|
|
Exhibit
II
|
Form
of Perfection Certificate
|
ABL
GUARANTEE AND COLLATERAL AGREEMENT dated as of September 28, 2007, among
SPECTRUM BRANDS, INC., a Wisconsin corporation (the
“Borrower”), the SUBSIDIARIES of the Borrower
identified herein and WACHOVIA BANK, NATIONAL ASSOCIATION, as the Collateral
Agent.
Reference
is made to the Credit Agreement dated as of September 28, 2007 (as amended,
supplemented or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, the other Loan Parties party
thereto, the Lenders party thereto, Wachovia Bank, National Association,
as the
Administrative Agent, the Collateral Agent and an LC Issuer, and Xxxxxxx
Xxxxx
Credit Partners L.P., as the Syndication Agent. The Lenders and the
LC Issuers have agreed to extend credit to the Borrower subject to the terms
and
conditions set forth in the Credit Agreement. The obligations of the
Lenders and the LC Issuers to extend such credit are conditioned upon, among
other things, the execution and delivery of this Agreement. The
Subsidiary Loan Parties are, or are Affiliates of, the Borrower, will derive
substantial benefits from the extension of credit to the Borrower pursuant
to
the Credit Agreement and are willing to execute and deliver this Agreement
in
order to induce the Lenders and the LC Issuers to extend such
credit. Accordingly, the parties hereto agree as
follows:
Definitions
SECTION
1.01. Credit
Agreement. (a) Capitalized terms used in this Agreement
(including the preliminary statement hereto) and not otherwise defined herein
have the meanings specified in the Credit Agreement. All terms
defined in the New York UCC (as defined herein) and not defined in this
Agreement or in the Credit Agreement have the meanings specified therein;
the
term “instrument” shall have the meaning specified in Article 9 of the
New York UCC.
(b) The
rules of construction specified in Section 1.02 of the Credit Agreement
also apply to this Agreement.
“ABL
Collateral” means any and all of the following assets and property
of any Loan Party, whether real, personal or mixed: (a) all Accounts (other
than Accounts arising under contracts for the sale of Non-ABL Collateral)
and
related Records; (b) all Chattel Paper; (c) all Deposit Accounts and
all cash, checks and other negotiable instruments, funds and other evidences
of
payment held therein (but not any identifiable Proceeds of Non-ABL Collateral);
(d) all Inventory; (e) solely to the extent evidencing, governing,
securing or otherwise related to the items referred to in the preceding
clauses (a), (b), (c) and (d), all Documents, General Intangibles (other
than Intellectual Property), Instruments, Investment Property and Letter
of
Credit Rights; (f) all books and
records
related to the foregoing; and (g) all Proceeds, including insurance
Proceeds, of any and all of the foregoing and all collateral, security and
guarantees given by any Person with respect to any of the
foregoing. Notwithstanding clause (g) of the immediately preceding
sentence, “ABL Collateral” shall not include any assets referred to in clauses
(a) through (j) and (l) of the definition of “Non-ABL Collateral” that are not
included in clause (e) above. All capitalized terms used in this
definition and not defined elsewhere in this Agreement have the meanings
assigned to them in the New York UCC.
“Account”
has the meaning assigned to such term in Section 9-102 of the New York
UCC.
“Account
Debtor” means any Person who is or who may become obligated to any
Loan Party under, with respect to or on account of an Account.
“Borrower”
has the meaning assigned to such term in the preliminary statement to this
Agreement.
“Copyright
License” means any written agreement, now or hereafter in effect,
granting any right to any third party under any copyright now or hereafter
owned
by any Loan Party or that such Loan Party otherwise has the right to license,
or
granting any right to any Loan Party under any copyright now or hereafter
owned
by any third party, and all rights of such Loan Party under any such
agreement.
“Copyrights”
means all of the following now owned or hereafter acquired by any Loan
Party: (a) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as
author, assignee, transferee or otherwise, and (b) all registrations and
applications for registration of any such copyright in the United States or
any other country, including registrations, recordings, supplemental
registrations and pending applications for registration in the
United States Copyright Office.
“Credit
Agreement” has the meaning assigned to such term in the
preliminary statement to this Agreement.
“Intellectual
Property” means all intellectual and similar property of every
kind and nature now owned or hereafter acquired by any Loan Party, including
inventions, designs, Patents, Copyrights, Licenses, Trademarks, trade secrets,
confidential or proprietary technical and business information, know-how,
show-how or other proprietary data or information, rights in software and
databases and rights in all embodiments or fixations thereof and rights in
related documentation, registrations and franchises, and all additions,
improvements and accessions to any of the foregoing.
“Inventory”
has the meaning assigned to such term in Section 9-102 of the New York
UCC.
“Lender
Party” means each Lender, each Agent, each Arranger, each LC
Issuer and each of their respective Affiliates (including any Person that
is a
Lender, an Agent or an LC Issuer (or that is such an Affiliate) as of the
Closing Date but
subsequently
ceases to be a Lender, an Agent or an LC Issuer (or such an Affiliate), as
the
case may be, if such Person is a counterparty to any Swap Contract with any
Loan
Party or provides any cash management services to any Loan Party).
“License”
means any Patent License, Trademark License, Copyright License or other license
or sublicense agreement to which any Loan Party is a party.
“Loan
Parties” means, collectively, the Borrower and the Subsidiary Loan
Parties.
“New York
UCC” means the Uniform Commercial Code as from time to time in
effect in the State of New York.
“Non-ABL
Collateral” means any and all of the following
assets and property of any Loan Party, whether real, personal or mixed: (a)
all
Investment Property; (b) all Documents; (c) all General Intangibles; (d)
all
Intellectual Property; (e) all Equipment; (f) all real property (including
both
fee and leasehold interests) and fixtures; (g) all Instruments; (h) all
insurance; (i) all Letter of Credit Rights; (j) all Commercial Tort Claims;
(k)
all other assets and property not constituting ABL Collateral; (l) all books
and
records related to the foregoing; and (m) all Proceeds, including insurance
Proceeds, of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the
foregoing. Notwithstanding the foregoing, “Non-ABL Collateral” shall
not include any assets or property included in clause (e) of the definition
of
“ABL Collateral” or any assets or property excluded pursuant to the terms of the
Term Collateral Documents. All capitalized terms used in this
definition and not defined elsewhere in this Agreement have the meanings
assigned to them in the New York UCC.
“Obligations”
means (a) the due and punctual payment by the Borrower of (i) the
principal of and interest (including interest accruing during the pendency
of
any bankruptcy, insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding) on the Loans, when and
as
due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, (ii) each payment required to be made by the
Borrower under any Loan Document in respect of any Letter of Credit, when
and as
due, including payments in respect of reimbursement of LC Disbursements,
interest thereon (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless
of
whether allowed or allowable in such proceeding) and obligations to provide
cash
collateral and (iii) all other monetary obligations of the Borrower to any
of the Secured Parties under the Credit Agreement and each of the other Loan
Documents, including expense reimbursement obligations and indemnification
obligations, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred, and any interest thereon accruing,
during the pendency of any bankruptcy, insolvency, receivership or other
similar
proceeding, regardless of whether allowed or allowable in such proceeding),
(b) the due and punctual payment of all the monetary obligations of each
other Loan Party under or pursuant to the Credit Agreement and each of the
other
Loan Documents (including monetary obligations incurred, and any
interest
thereon accruing, during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), (c) the due and punctual payment and
performance of all monetary obligations of each Loan Party under each Swap
Contract with a counterparty that is a Lender Party (whether such Swap Contract
is in effect on the Closing Date or entered into after the Closing Date),
other
than any such Swap Contract with respect to which the Lender Party that is
the
counterparty thereto shall have agreed in writing that such Swap Contract
shall
be deemed not to be a “Swap Contract” for purposes of this clause (c) (a copy of
such writing to be delivered to the Collateral Agent), and (d) the due and
punctual payment and performance of all monetary obligations of each Loan
Party
to any Lender Party in respect of cash management services (including treasury,
depository, overdraft, credit or debit card (including non-card e-payable
services), electronic funds transfer and other cash management arrangements)
(other than cash management services provided after (i) the principal of
each Loan and all LC Disbursements, interest and fees payable under the Credit
Agreement have been paid in full, (ii) all Commitments under the Credit
Agreement have been reduced to zero and (iii) no LC Issuer shall have any
obligation to issue Letters of Credit under the Credit Agreement and no Letter
of Credit shall be outstanding (other than any Letter of Credit the obligations
under which have been cash collateralized in full or supported in full by
letters of credit of other banks naming the applicable LC Issuer as the
beneficiary, in each case, in a manner satisfactory to the applicable LC
Issuer)).
“Patent
License” means any written agreement, now or hereafter in effect,
granting to any third party any right to make, use or sell any invention
on
which a patent, now or hereafter owned by any Loan Party or that any Loan
Party
otherwise has the right to license, is in existence, or granting to any Loan
Party any right to make, use or sell any invention on which a patent, now
or
hereafter owned by any third party, is in existence, and all rights of any
Loan
Party under any such agreement.
“Patents”
means all of the following now owned or hereafter acquired by any Loan
Party: (a) all letters patent of the United States or the
equivalent thereof in any other country, all registrations and recordings
thereof, and all applications for letters patent of the United States or
the equivalent thereof in any other country, including registrations, recordings
and pending applications in the United States Patent and Trademark Office
or any similar offices in any other country and (b) all reissues,
continuations, divisions, continuations-in-part, renewals or extensions thereof,
and the inventions disclosed or claimed therein, including the right to make,
use and/or sell the inventions disclosed or claimed therein.
“Perfection
Certificate” means a certificate substantially in the form of
Exhibit II, completed and supplemented with the schedules and attachments
contemplated thereby, and duly executed by a Responsible Officer of the
Borrower.
“Proceeds”
has the meaning assigned to such term in Section 9-102 of the New York
UCC.
“Secured
Parties” means (a) the Lenders, (b) the Administrative
Agent, (c) the Collateral Agent, (d) the Syndication Agent,
(e) the Arrangers, (f) the LC Issuers, (g) the Lender Parties to
whom any of the Obligations are owed and (h) the permitted successors and
assigns of each of the foregoing.
“Security
Interest” has the meaning assigned to such term in
Section 3.01(a).
“Subsidiary
Loan Parties” means (a) the Subsidiaries identified on
Schedule I and (b) each other Subsidiary that becomes a party to this
Agreement as a Subsidiary Loan Party after the Closing Date.
“Term
Collateral Documents” has the meaning assigned to such term in the
ABL Intercreditor Agreement.
“Term
Liens” has the meaning assigned to such term in the ABL
Intercreditor Agreement.
“Trademark
License” means any written agreement, now or hereafter in effect,
granting to any third party any right to use any trademark now or hereafter
owned by any Loan Party or that any Loan Party otherwise has the right to
license, or granting to any Loan Party any right to use any trademark now
or
hereafter owned by any third party, and all rights of any Loan Party under
any
such agreement.
“Trademarks”
means all of the following now owned or hereafter acquired by any Loan
Party: (a) all trademarks, service marks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
trade dress, logos, other source or business identifiers and other general
intangibles of like nature, now existing or hereafter adopted or acquired,
all
registrations and recordings thereof, and all registration and recording
applications filed in connection therewith, including registrations and
registration applications in the United States Patent and Trademark Office
or any similar offices in any State of the United States or any other
country or any political subdivision thereof, and all extensions or renewals
thereof and (b) all goodwill associated therewith or symbolized
thereby.
Guarantee
SECTION
2.01. Guarantee. Each
Loan Party unconditionally guarantees, jointly with the other Loan Parties
and
severally, as a primary obligor and not merely as a surety, the due and punctual
payment of the Obligations. Each Loan Party further agrees that the
Obligations may be extended or renewed, in whole or in part, or amended or
modified, without notice to or further assent from it, and that it will remain
bound upon its guarantee notwithstanding any extension or renewal, or amendment
or modification, of any Obligation. Each Loan Party waives
presentment to, demand of payment from and protest to the Borrower or any
other
Loan Party of any of the Obligations, and also waives notice of acceptance
of
its guarantee and notice of protest for nonpayment.
SECTION
2.02. Guarantee of
Payment. Each Loan Party further agrees that its guarantee
hereunder constitutes a guarantee of payment when due and not of collection,
and
waives any right to require that any resort be had by the Collateral Agent
or
any other Secured Party to any security held for the payment of the Obligations
or to any balance of any deposit account or credit on the books of the
Collateral Agent or any other Secured Party in favor of the Borrower or any
other Person.
SECTION
2.03. No
Limitations. (a) Except for termination of a Loan Party’s
obligations hereunder as expressly provided in Section 6.13, the
obligations of each Loan Party hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including any claim
of
waiver, release, surrender, alteration or compromise of any Obligations,
and
shall not be subject to any defense or set-off, counterclaim, recoupment
or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Loan Party hereunder
shall not be discharged or impaired or otherwise affected by (i) the
failure of the Collateral Agent or any other Secured Party to assert any
claim
or demand or to enforce any right or remedy under the provisions of any Loan
Document or otherwise; (ii) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of, any
Loan
Document or any other agreement, including with respect to any other Loan
Party
under this Agreement; (iii) the release of, or any impairment of or failure
to perfect any Lien on or security interest in, any security held by the
Collateral Agent or any other Secured Party for the Obligations or any of
them;
(iv) any default, failure or delay, wilful or otherwise, in the performance
of the Obligations; or (v) any other act or omission that may or might in
any manner or to any extent vary the risk of any Loan Party or otherwise
operate
as a discharge of any Loan Party as a matter of law or equity (other than
the
indefeasible payment in full in cash of all the Obligations). Each
Loan Party expressly authorizes the Secured Parties to take and hold security
in
accordance with the terms of this Agreement and the other Loan Documents
for the
payment and performance of the Obligations, to exchange, waive or release
any or
all such security (with or without consideration), to enforce or apply such
security and direct the order and manner of any sale thereof in their sole
discretion or to release or substitute any one or more other Loan Parties
or
obligors upon or in respect of the Obligations, all without affecting the
obligations of any Loan Party hereunder.
(b) To
the fullest extent permitted by applicable Law, each Loan Party waives any
defense based on or arising out of any defense of the Borrower or any other
Loan
Party or the unenforceability of the Obligations or any part thereof from
any
cause, or the cessation from any cause of the liability of the Borrower or
any
other Loan Party, other than the indefeasible payment in full in cash of
all the
Obligations. The Collateral Agent and the other Secured Parties may,
at their election, foreclose on any security held by one or more of them
in
accordance with the terms of this Agreement and the other Loan Documents
by one
or more judicial or nonjudicial sales, accept an assignment of any such security
in lieu of foreclosure, compromise or adjust any part of the Obligations,
make
any other accommodation with the Borrower or any other Loan Party or exercise
any other right or remedy available to them against the Borrower or any other
Loan Party, without affecting or impairing in any way the liability of any
Loan
Party hereunder
except
to the extent the Obligations have been fully and indefeasibly paid in full
in
cash. To the fullest extent permitted by applicable Law, each Loan
Party waives any defense arising out of any such election even though such
election operates, pursuant to applicable Law, to impair or to extinguish
any
right of reimbursement or subrogation or other right or remedy of such Loan
Party against the Borrower or any other Loan Party, as the case may be, or
any
security.
SECTION
2.04. Reinstatement. Each Loan Party agrees
that its guarantee hereunder shall continue to be effective or be reinstated,
as
the case may be, if at any time payment, or any part thereof, of any Obligation
is rescinded or must otherwise be restored by the Collateral Agent or any
other
Secured Party upon the bankruptcy or reorganization of the Borrower, any
other
Loan Party or otherwise.
SECTION
2.05. Agreement to Pay;
Subrogation. In furtherance of the foregoing and not in
limitation of any other right that the Collateral Agent or any other Secured
Party has at law or in equity against any Loan Party by virtue hereof, upon
the
failure of the Borrower or any other Loan Party to pay any Obligation when
and
as the same shall become due, whether at maturity, by acceleration, after
notice
of prepayment or otherwise, each Loan Party hereby promises to and will
forthwith pay, or cause to be paid, to the Collateral Agent for distribution
to
the applicable Secured Parties in cash the amount of such unpaid
Obligation. Upon payment by any Loan Party of any sums to the
Collateral Agent as provided above, all rights of such Loan Party against
the
Borrower or any other Loan Party arising as a result thereof by way of right
of
subrogation, contribution, reimbursement, indemnity or otherwise shall in
all
respects be subject to Article V.
SECTION
2.06. Information. Each
Loan Party assumes all responsibility for being and keeping itself informed
of
the Borrower’s and each other Loan Party’s financial condition and assets, and
of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks that such Loan
Party
assumes and incurs hereunder, and agrees that neither the Collateral Agent
nor
any of the other Secured Parties will have any duty to advise such Loan Party
of
information known to it or any of them regarding such circumstances or
risks.
Security
Interests in Personal Property
SECTION
3.01. Security
Interest. (a) As security for the payment in full of the
Obligations, each Loan Party hereby pledges to the Collateral Agent, its
successors and assigns, for the benefit of the Secured Parties, and hereby
grants to the Collateral Agent, its successors and assigns, for the benefit
of
the Secured Parties, a security interest (the “Security
Interest”) in, all right, title or interest in, to and under any
and all of the ABL Collateral now owned or at any time hereafter acquired
by
such Loan Party or in which such Loan Party now has or at any time in the
future
may acquire any right, title or interest.
(b) Each
Loan Party hereby irrevocably authorizes the Collateral Agent at any time
and
from time to time to file in any relevant jurisdiction any initial financing
statements with respect to the ABL Collateral or any part thereof and
amendments thereto and continuations thereof that contain the information
required by Article 9 of the Uniform Commercial Code of each applicable
jurisdiction for the filing of any financing statement or amendment, including
whether such Loan Party is an organization, the type of organization and
any
organizational identification number issued to such Loan Party. Each
Loan Party agrees to provide such information to the Collateral Agent promptly
upon request. Without limiting the foregoing, each Loan Party hereby
irrevocably authorizes the Collateral Agent at any time and from time to
time to
file in any relevant jurisdiction financing statements that describe the
ABL
Collateral as “all assets, whether now owned or hereafter acquired” of such Loan
Party, or words of similar effect as being of an equal or lesser scope or
with
greater detail. Each Loan Party also ratifies its authorization for
the Collateral Agent to file in any relevant jurisdiction any initial financing
statements or amendments thereto if filed prior to the date hereof.
(c) The
Security Interest is granted as security only and shall not subject the
Collateral Agent or any other Secured Party to, or in any way alter or modify,
any obligation or liability of any Loan Party with respect to or arising
out of
the ABL Collateral (other than the duties expressly created
hereunder).
SECTION
3.02. Representations and
Warranties. The Loan Parties jointly and severally represent and
warrant to the Collateral Agent and the other Secured Parties that:
(a) Each
Loan Party has good and valid rights in and title to the ABL Collateral
with respect to which it has purported to grant a Security Interest hereunder
and has full power and authority to grant to the Collateral Agent, for the
benefit of the Secured Parties, the Security Interest in such
ABL Collateral pursuant hereto and to execute, deliver and perform its
obligations in accordance with the terms of this Agreement, without the consent
or approval of any other Person other than any consent or approval that has
been
obtained, except to the extent that the failure to have such rights, title,
power or authority could not, individually or in the aggregate, reasonably
be
expected to have a Material Adverse Effect.
(b) The
Perfection Certificate has been duly prepared, completed and executed and
the
information set forth therein, including the exact legal name and place of
organization of each Loan Party, is correct and complete as of the Closing
Date. The Uniform Commercial Code financing statements prepared by
the Collateral Agent based upon the information provided to the Collateral
Agent
in the Perfection Certificate for filing in each governmental, municipal
or
other office specified in Schedules 2A and 2B to the Perfection Certificate
(or
specified by notice from the Borrower to the Collateral Agent after the Closing
Date in the case of filings, recordings or registrations required by
Section 6.13 of the Credit Agreement), are all the filings, recordings and
registrations that are necessary to publish notice of, perfect and protect
the
validity of and to establish a legal, valid and perfected security interest
in
favor of the Collateral Agent, for the benefit of the Secured Parties, in
respect of all ABL Collateral in which the Security Interest
may
be
perfected by filing, recording or registration in the United States (or any
political subdivision thereof) and its territories and possessions, and no
further or subsequent filing, refiling, recording, rerecording, registration
or
reregistration is necessary in any such jurisdiction, except as provided
under
applicable Law with respect to the filing of continuation
statements.
(c) The
Security Interest constitutes (i) a legal and valid security interest in
all the ABL Collateral securing the payment of the Obligations and
(ii) subject to the filings described in Section 3.02(b), a perfected
security interest in all ABL Collateral in which a security interest may be
perfected by filing, recording or registering a financing statement or analogous
document in the United States (or any political subdivision thereof) and
its territories and possessions pursuant to the Uniform Commercial Code or
other
applicable Law in such jurisdictions. The Security Interest is and
shall be prior to any other Lien on any of the ABL Collateral, other than
Permitted Liens (but not Term Liens) that have priority as a matter of
law.
(d) The
ABL Collateral is owned by the Loan Parties free and clear of any Lien,
except for Permitted Liens. None of the Loan Parties has filed or
consented to the filing of (i) any financing statement or analogous
document under the Uniform Commercial Code or any other applicable Law covering
any ABL Collateral or (ii) any assignment in which any Loan Party
assigns any ABL Collateral or any security agreement or similar instrument
covering any ABL Collateral with any foreign governmental, municipal or
other office, which financing statement or analogous document, assignment,
security agreement or similar instrument is still in effect, except, in each
case, for Permitted Liens.
SECTION
3.03. Covenants. (a)
Each Loan Party agrees to maintain, at its own cost and expense, such complete
and accurate records with respect to the ABL Collateral owned by it as is
consistent with its current practices and its reasonable business judgment,
and,
at such time or times as the Collateral Agent may reasonably request, promptly
to prepare and deliver to the Collateral Agent an updated schedule in form
and
detail reasonably satisfactory to the Collateral Agent showing the identity,
amount and location of any and all ABL Collateral.
(b) Each
Loan Party shall, at its own expense, take any and all actions consistent
with
its current practices and its reasonable business judgment to defend title
to
the ABL Collateral against all Persons and to defend the Security Interest
of the Collateral Agent in the ABL Collateral and the priority thereof
against any Lien that is not a Permitted Lien.
(c) Each
Loan Party agrees, at its own expense, to execute, acknowledge, deliver and
cause to be duly filed all such further instruments and documents and take
all
such actions as the Collateral Agent may from time to time reasonably request
to
better assure, preserve, protect and perfect the Security Interest and the
rights and remedies created hereby, including the payment of any fees and
taxes
required in connection with the execution and delivery of this Agreement,
the
granting of the Security Interest and the filing of any financing statements
or
other documents in connection herewith or
therewith. If
any amount payable under or in connection with any of the ABL Collateral
shall be or become evidenced by any promissory note or other instrument,
such
note or instrument shall be promptly pledged and delivered to the Collateral
Agent, duly endorsed in a manner reasonably satisfactory to the Collateral
Agent.
(d) Upon
the occurrence and during the continuance of an Event of Default, the Collateral
Agent and such Persons as the Collateral Agent may reasonably designate shall
have the right to inspect the ABL Collateral, all records related thereto
(and to make extracts and copies from such records) and the premises upon
which
any of the ABL Collateral is located, to discuss the Loan Parties’ affairs
with the officers of the Loan Parties and their independent accountants and
to
verify under reasonable procedures, in accordance with Section 6.11 of the
Credit Agreement, the validity, amount, quality, quantity, value, condition
and
status of, or any other matter relating to, the ABL Collateral. In
the case of Accounts or other ABL Collateral in the possession of any third
Person, the Collateral Agent and such Persons as the Collateral Agent may
reasonably designate shall have the right to verify, at any time, the validity,
amount, quality, quantity, value, condition and status thereof by contacting
Account Debtors or the third Person possessing such ABL Collateral for the
purpose of making such a verification. The Loan Parties shall be
required to pay all reasonable out-of-pocket costs and expenses incurred
by the
Collateral Agent or any other Person in connection with any inspection or
verification referred to in this paragraph.
(e) At
its option, the Collateral Agent may discharge past due taxes, assessments,
charges, fees, Liens, security interests or other encumbrances at any time
levied or placed on the ABL Collateral and not permitted pursuant to
Section 7.01 of the Credit Agreement, may obtain insurance and may pay for
the maintenance and preservation of the ABL Collateral to the extent any
Loan Party fails to do so as required by the Credit Agreement or this Agreement,
and each Loan Party jointly and severally agrees to reimburse the Collateral
Agent on demand for any payment made or any expense incurred by the Collateral
Agent pursuant to the foregoing authorization; provided that nothing in
this paragraph shall be interpreted as excusing any Loan Party from the
performance of, or imposing any obligation on the Collateral Agent or any
Secured Party to cure or perform, any covenants or other promises of any
Loan
Party with respect to taxes, assessments, charges, fees, Liens, security
interests, insurance or other encumbrances and maintenance as set forth herein
or in the other Loan Documents.
(f) If
at any time any Loan Party shall take a security interest in any property
with a
value in excess of $1,000,000 in the aggregate of an Account Debtor or any
other
Person to secure payment and performance of an Account, such Loan Party shall
promptly assign such security interest to the Collateral Agent, for the benefit
of the Secured Parties. Such assignment need not be filed of public
record unless necessary to continue the perfected status of the security
interest against creditors of and transferees from the Account Debtor or
other
Person granting the security interest.
(g) Each
Loan Party shall remain liable to observe and perform all the conditions
and
obligations to be observed and performed by it under each contract, agreement
or
instrument relating to the ABL Collateral, all in accordance with the terms
and
conditions thereof, and the Loan Parties jointly and severally
agree to indemnify and hold harmless the Collateral Agent and the other Secured
Parties from and against any and all liability for such performance.
(h) If
and to the extent requested by the Collateral Agent, each Loan Party agrees
that
it shall notify each warehouseman, agent, bailee or processor that possesses
or
controls any Inventory of such Loan Party of the Security Interest and shall
use
its commercially reasonable efforts to obtain from such warehouseman, agent,
bailee or processor an acknowledgement in writing, in form and substance
reasonably satisfactory to the Collateral Agent, that such warehouseman,
agent,
bailee or processor holds such Inventory for the benefit of the Collateral
Agent
subject to the Security Interest and shall act upon the instructions of the
Collateral Agent without further consent from any Loan Party, and that such
warehouseman, agent, bailee or processor further agrees to fully subordinate
any
Lien held by it with respect to such Inventory, whether arising by operation
of
Law or otherwise, to the Security Interest.
(i) None
of the Loan Parties will, without the Collateral Agent’s prior written consent,
grant any extension of the time of payment of any Accounts included in the
ABL Collateral, compromise, compound or settle the same for less than the
full amount thereof, release, wholly or partly, any Person liable for the
payment thereof or grant any credit, discount or allowance whatsoever thereon,
other than extensions, compromises, settlements, releases, credits, discounts
or
allowances granted or made in the ordinary course of business and consistent
with its current practices and in accordance with such prudent and standard
practice used in industries that are the same as or similar to those in which
such Loan Party is engaged. Upon the occurrence and during the
continuance of an Event of Default, the Collateral Agent shall, at its option,
have the exclusive right to settle, adjust or compromise any claim, offset,
counterclaim or dispute with Account Debtors or grant any credits, discounts
or
allowances.
(j) The
Loan Parties, at their own expense, shall maintain or cause to be maintained
insurance covering physical loss or damage to the Inventory in accordance
with
the requirements set forth in Section 6.08 of the Credit
Agreement. Each Loan Party shall use its commercially reasonable
efforts to cause any fire and extended coverage insurance policies
maintained by it with respect to any ABL Collateral to be endorsed or
otherwise amended to include a lenders’ loss payable clause in favor of the
Collateral Agent and to provide that it shall not be canceled, modified or
not
renewed except upon not less than 10 days’ prior written notice thereof by the
insurer to the Collateral Agent. Each Loan Party irrevocably makes,
constitutes and appoints the Collateral Agent (and all officers, employees
or
agents designated by the Collateral Agent) as such Loan Party’s true and lawful
agent (and attorney-in-fact) for the purpose, during the continuance of an
Event
of Default, of making, settling and adjusting claims in respect of
ABL Collateral under policies of insurance, endorsing the name of such Loan
Party on any check, draft, instrument or other item of payment for the proceeds
of such policies of insurance and for making all determinations and decisions
necessary with respect thereto. In the event that any Loan Party at
any time or times shall fail to obtain or maintain any of the policies of
insurance required hereby or to pay any premium in whole or part relating
thereto, the Collateral Agent may, without waiving or releasing any obligation
or liability of the Loan
Parties
hereunder or any Event of Default, in its sole discretion, obtain and maintain
such policies of insurance and pay such premium and take any other actions
with
respect thereto as the Collateral Agent deems advisable. All sums
disbursed by the Collateral Agent in connection with this paragraph, including
reasonable out-of-pocket attorneys’ fees, court costs, expenses and other
charges relating thereto, shall be payable, upon demand, by the Loan Parties
to
the Collateral Agent and shall be additional Obligations secured
hereby.
(k) Each
Loan Party shall maintain customary and prudent records of its Chattel Paper
and
its books, records and documents evidencing or pertaining thereto.
SECTION
3.04. Other Actions. In
order to further ensure the attachment, perfection and priority of, and the
ability of the Collateral Agent to enforce, the Security Interest, each Loan
Party agrees, in each case at such Loan Party’s own expense, to take the
following actions with respect to the following
ABL Collateral:
(a)
Instruments. If any Loan Party shall at any time hold or
acquire any Instruments that constitute ABL Collateral, such Loan Party
shall promptly endorse, assign and deliver the same to the Collateral Agent,
accompanied by such undated instruments of endorsement, transfer or assignment
duly executed in blank as the Collateral Agent may from time to time reasonably
request.
(b)
Deposit Accounts. For each Deposit Account that any Loan
Party at any time opens or maintains, such Loan Party shall either
(i) cause the depositary bank to agree to comply with instructions from the
Collateral Agent to such depositary bank directing the disposition of funds
from
time to time credited to such Deposit Account, without further consent of
such
Loan Party or any other Person, pursuant to an agreement reasonably satisfactory
to the Collateral Agent, or (ii) arrange for the Collateral Agent to become
the customer of the depositary bank with respect to the Deposit Account,
with
the Loan Party being permitted, only with the consent of the Collateral Agent,
to exercise rights to withdraw funds from such Deposit Account. The
Collateral Agent agrees with each Loan Party that the Collateral Agent shall
not
give any such instructions or withhold any withdrawal rights from any Loan
Party
except during the continuance of an Availability Triggering Event or if an
Event
of Default has occurred and is continuing or, after giving effect to any
withdrawal, would occur. The provisions of this paragraph
shall not apply to (A) Deposit Accounts for which the Collateral Agent is
the depositary bank and (B) any Deposit Account the average daily balance
in which does not exceed $1,000,000 for any such account individually, and
$5,000,000 for all such accounts in the aggregate, at any time.
(c)
Investment Property. If any Investment Property now or hereafter
acquired by any Loan Party is held by such Loan Party or its nominee through
a
securities intermediary, and such Investment Property constitutes ABL
Collateral, such Loan Party shall immediately notify the Collateral Agent
thereof and, at the Collateral Agent’s request and option, pursuant to an
agreement in form and substance reasonably satisfactory to the Collateral
Agent,
either (i) use
commercially
reasonable efforts to cause such securities intermediary to agree to comply
with
entitlement orders or other instructions from the Collateral Agent to such
securities intermediary as to such security entitlements without further
consent
of any Loan Party or such nominee, or (ii) in the case of Financial Assets
or other Investment Property held through a securities intermediary, use
commercially reasonable efforts to arrange for the Collateral Agent to become
the entitlement holder with respect to such Investment Property, with the
Loan
Party being permitted, only with the consent of the Collateral Agent, to
exercise rights to withdraw or otherwise deal with such Investment
Property. The Collateral Agent agrees with each of the Loan Parties
that the Collateral Agent shall not give any such entitlement orders or
instructions or directions to any such issuer or securities intermediary,
and
shall not withhold its consent to the exercise of any withdrawal or dealing
rights by any Loan Party, except during the continuance of an Availability
Triggering Event or if an Event of Default has occurred and is continuing
or,
after giving effect to any such investment and withdrawal rights, would
occur. The provisions of this paragraph shall not apply to
(A) any Financial Assets credited to a securities account for which the
Collateral Agent is the securities intermediary and (B) any securities
account the value of securities or other Investment Property in which does
not
exceed $1,000,000 for any such account individually, and $5,000,000 for all
such
accounts in the aggregate, at any time.
(d)
Electronic Chattel Paper and Transferable Records. If any Loan Party at
any time holds or acquires an interest in any electronic chattel paper or
any
“transferable record,” as that term is defined in Section 201 of the
Federal Electronic Signatures in Global and National Commerce Act, or in
Section 16 of the Uniform Electronic Transactions Act as in effect in any
relevant jurisdiction of an amount in excess of $1,000,000, such Loan Party
shall promptly notify the Collateral Agent thereof and, at the request of
the
Collateral Agent, shall take such action as the Collateral Agent may reasonably
request to vest in the Collateral Agent control under New York UCC
Section 9-105 of such electronic chattel paper or control under
Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act or, as the case may be, Section 16 of the Uniform Electronic
Transactions Act, as so in effect in such jurisdiction, of such transferable
record. The Collateral Agent agrees with such Loan Party that the
Collateral Agent will arrange, pursuant to procedures reasonably satisfactory
to
the Collateral Agent and so long as such procedures will not result in the
Collateral Agent’s loss of control, for the Loan Party to make alterations to
the electronic chattel paper or transferable record permitted under UCC
Section 9-105 or, as the case may be, Section 201 of the Federal
Electronic Signatures in Global and National Commerce Act or Section 16 of
the Uniform Electronic Transactions Act for a party in control to allow without
loss of control, unless an Event of Default has occurred and is continuing
or
would occur after taking into account any action by such Loan Party with
respect
to such electronic chattel paper or transferable record.
(e)
Letter-of-Credit Rights. If any Loan Party is at any time a
beneficiary under a letter of credit now or hereafter issued in favor of
such
Loan Party in a face amount in excess of $1,000,000, and such letter of credit
constitutes ABL Collateral, such Loan Party shall promptly notify the
Collateral Agent thereof and, at the request and option of the Collateral
Agent,
such Loan Party shall, pursuant to an agreement in form and substance reasonably
satisfactory to the Collateral Agent, either (i) use commercially
reasonable efforts to arrange for the issuer and any confirmer of such letter
of
credit to consent to an assignment to the Collateral Agent of the proceeds
of
any drawing under such letter of credit or (ii) use commercially reasonable
efforts to arrange for the Collateral Agent to become the transferee beneficiary
of such letter of credit, with the Collateral Agent agreeing, in each case,
that
the proceeds of any drawing under such letter of credit are to be paid to
the
applicable Loan Party unless an Event of Default has occurred or is
continuing.
Remedies
SECTION
4.01. Remedies Upon
Default. Upon the occurrence and during the continuance of an
Event of Default, each Loan Party agrees to deliver, on demand, each item
of
ABL Collateral to the Collateral Agent or any Person designated by the
Collateral Agent, and it is agreed that the Collateral Agent shall have the
right to take possession of the ABL Collateral and without liability for
trespass to enter any premises where the ABL Collateral may be located for
the purpose of taking possession of or removing the ABL Collateral and,
generally, to exercise any and all rights afforded to a secured party under
the
Uniform Commercial Code or other applicable Law, in each case at the same
or
different times, with or without legal process and with or without prior
notice
or demand for performance. Without limiting the generality of the
foregoing, each Loan Party agrees that the Collateral Agent shall have the
right, subject to the mandatory requirements of applicable Law, to sell or
otherwise dispose of all or any part of the ABL Collateral at a public or
private sale or at any broker’s board or on any securities exchange, for cash,
upon credit or for future delivery as the Collateral Agent shall deem
appropriate. The Collateral Agent shall be authorized at any such
sale of securities (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to Persons who will represent and agree
that
they are purchasing the ABL Collateral for their own account for investment
and
not with a view to the distribution or sale thereof, and upon consummation
of
any such sale the Collateral Agent shall have the right to assign, transfer
and
deliver to the purchaser or purchasers thereof the ABL Collateral so
sold. Each such purchaser at any sale of ABL Collateral shall
hold the property sold absolutely, free from any claim or right on the part
of
any Loan Party, and each Loan Party hereby waives (to the extent permitted
by
law) all rights of redemption, stay and appraisal which such Loan Party now
has
or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted.
The
Collateral Agent shall give the applicable Loan Parties at least 10 days’
written notice (which each Loan Party agrees is reasonable notice within
the
meaning of Section 9-611 of the New York UCC or its equivalent in
other jurisdictions) of the Collateral Agent’s intention to make any sale of
ABL Collateral. Such notice, in the case of a public sale, shall
state the time and place for such sale and, in the case of a sale at a broker’s
board or on a securities exchange, shall state the board or exchange at which
such sale is to be made and the day on which the ABL Collateral, or portion
thereof, will first be offered for sale at such board or
exchange. Any such public sale shall be held at such time or times
within ordinary business hours and at such place or places as the Collateral
Agent may fix and state in the notice (if any) of such sale. At any
such sale, the ABL Collateral, or portion thereof, to be sold may be sold
in one lot as an entirety or in separate parcels, as the Collateral Agent
may
(in its sole and absolute discretion) determine. The Collateral Agent
shall not be obligated to make any sale of any ABL Collateral if it shall
determine not to do so, regardless of the fact that notice of sale of such
ABL Collateral shall have been given. The Collateral Agent 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 sale, and such sale may, without further notice, be made at the
time
and place to which the same was so adjourned. In case any sale of all
or any part of the ABL Collateral is made on credit or for future delivery,
the ABL Collateral so sold may be retained by the Collateral Agent until
the sale price is paid by the purchaser or purchasers thereof, but the
Collateral Agent and the other Secured Parties shall not incur any liability
in
case any such purchaser or purchasers shall fail to take up and pay for the
ABL Collateral so sold and, in case of any such failure, such
ABL Collateral may be sold again upon like notice. At any public
(or, to the extent permitted by applicable Law, private) sale made pursuant
to
this Agreement, any Secured Party may bid for or purchase, free (to the extent
permitted by law) from any right of redemption, stay, valuation or appraisal
on
the part of any Loan Party (all said rights being also hereby waived and
released to the extent permitted by law), the ABL Collateral or any part
thereof offered for sale and may make payment on account thereof by using
any
claim then due and payable to such Secured Party from any Loan Party as a
credit
against the purchase price, and such Secured Party may, upon compliance with
the
terms of sale, hold, retain and dispose of such property without further
accountability to any Loan Party therefor. For purposes hereof, a
written agreement to purchase the ABL Collateral or any portion thereof
shall be treated as a sale thereof; the Collateral Agent shall be free to
carry
out such sale pursuant to such agreement and no Loan Party shall be entitled
to
the return of the ABL Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Collateral Agent shall have entered
into
such an agreement all Events of Default shall have been remedied and the
Obligations paid in full. As an alternative to exercising the power
of sale herein conferred upon it, the Collateral Agent may proceed by a suit
or
suits at law or in equity to foreclose this Agreement and to sell the
ABL Collateral or any portion thereof pursuant to a judgment or decree of a
court or courts having competent jurisdiction or pursuant to a proceeding
by a
court-appointed receiver. Any sale pursuant to the provisions of this
Section 4.01 shall be deemed to conform to the commercially reasonable
standards as provided in Section 9-610(b) of the New York UCC or its
equivalent in other jurisdictions.
SECTION
4.02. Application of
Proceeds. The Collateral Agent shall apply the proceeds of any
collection or sale of ABL Collateral, including any ABL Collateral
consisting of cash, as follows:
FIRST,
to the payment of all Obligations consisting of (a) fees due under
the
Credit Agreement (including fees under Section 2.10 of the Credit Agreement),
(b) costs and expenses incurred by the Collateral Agent in connection with
such
collection or sale or otherwise in connection with this Agreement, any other
Loan Document or any of the Obligations, including all court costs and the
reasonable out-of-pocket fees and expenses of its agents and legal counsel,
the
repayment of all advances made by the Collateral Agent hereunder or under
any
other Loan Document on behalf of any Loan Party and any other costs or expenses
incurred in connection with the exercise of any right or remedy hereunder
or
under any other Loan Document and (c) all other obligations in the nature
of
indemnification and reimbursement of costs and expenses (including obligations
under Section 10.04 of the Credit Agreeement and Section 6.03 of this
Agreement), with the amounts referred to in this clause FIRST so applied
to be
distributed among the Secured Parties entitled thereto pro rata in accordance
with the amounts of such Obligations owed to them on the date of any such
distribution;
SECOND,
to the payment of all Obligations consisting of interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership
or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans (including Special Agent Loans), with the amounts
so
applied to be distributed among the Secured Parties entitled thereto pro
rata in
accordance with the amounts of such interest owed to them on the date of
any
such distribution;
THIRD,
to the payment in full of the aggregate principal amount of all the Special
Agent Loans;
FOURTH,
to the payment in full of the aggregate principal amount of all the Swingline
Loans;
FIFTH,
to the payment in full of the aggregate principal amount of all other Loans,
with the amounts so applied to be distributed among the Secured Parties entitled
thereto pro rata in accordance with the amounts of such principal owed to
them
on the date of any such distribution;
SIXTH,
to the payment (or, in the case of outstanding Letters of Credit, cash
collateralization) in full of all the Obligations not referred to in clauses
FIRST through FIFTH above or clause SEVENTH below, with the amounts so applied
to be distributed among the Secured Parties entitled thereto pro rata in
accordance with the amounts of such Obligations owed to them on the date
of any
such distribution;
SEVENTH,
to the payment in full of all the Obligations referred to in clauses (c)
and (d) of the definition of the term “Obligations”, the amounts so applied to
be distributed among the Secured Parties entitled thereto pro rata in accordance
with the amounts of such Obligations owed to them on the date of any such
distribution; and
EIGHTH,
to the Loan Parties, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
The
Collateral Agent shall have absolute discretion as to the time of application
of
any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of ABL Collateral by the Collateral
Agent (including pursuant to a power of sale granted by statute or under
a
judicial proceeding), the receipt of the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the ABL Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid
over
to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
Indemnity,
Subrogation and Subordination
SECTION
5.01. Indemnity and
Subrogation. In addition to all such rights of indemnity and
subrogation as the Loan Parties may have under applicable Law (but subject
to
Section 5.03), the Borrower agrees that (a) in the event a payment of
an Obligation of the Borrower shall be made by any Subsidiary Loan Party
under
this Agreement, the Borrower shall indemnify such Subsidiary Loan Party for
the
full amount of such payment and such Subsidiary Loan Party shall be subrogated
to the rights of the Person to whom such payment shall have been made to
the
extent of such payment and (b) in the event any assets of any Subsidiary
Loan Party shall be sold pursuant to this Agreement or any other Security
Document to satisfy in whole or in part an obligation of the Borrower owed
to
any Secured Party, the Borrower shall indemnify such Subsidiary Loan Party
in an
amount equal to the greater of the book value or the fair market value of
the
assets so sold.
SECTION
5.02. Contribution and
Subrogation. Each Subsidiary Loan Party (a
“Contributing Party”) agrees (subject to
Section 5.03) that, in the event a payment shall be made by any other
Subsidiary Loan Party hereunder in respect of any Obligation or assets of
any
other Subsidiary Loan Party shall be sold pursuant to any Security Document
to
satisfy any Obligation (other, in each case, than an Obligation for the
incurrence of which such other Subsidiary Loan Party received fair and adequate
consideration) and such other Subsidiary Loan Party (the “Claiming
Party”) shall not have been fully indemnified by the Borrower as
provided in Section 5.01, the Contributing Party shall indemnify the
Claiming Party in an amount equal to the amount of such payment or the greater
of the book value or the fair market value of such assets, as the case may
be,
in each case multiplied by a fraction of which the numerator shall be the
net
worth of the Contributing Party on the date hereof and the denominator shall
be
the
aggregate net worth of all the Subsidiary Loan Parties on the date hereof
(or,
in the case of any Subsidiary Loan Party becoming a party hereto pursuant
to
Section 6.14, the date of the supplement hereto executed and delivered by
such Subsidiary Loan Party). Any Contributing Party making any
payment to a Claiming Party pursuant to this Section 5.02 shall be
subrogated to the rights of such Claiming Party under Section 5.01 to the
extent of such payment.
SECTION
5.03. Subordination. (a)
Notwithstanding any provision of this Agreement to the contrary, all rights
of
the Loan Parties under Sections 5.01 and 5.02 and all other rights of
indemnity, contribution or subrogation under applicable Law or otherwise
shall
be fully subordinated to the indefeasible payment in full in cash of the
Obligations. No failure on the part of the Borrower or any other Loan
Party to make the payments required by Sections 5.01 and 5.02 (or any other
payments required under applicable Law or otherwise) shall in any respect
limit
the obligations and liabilities of any Loan Party with respect to its
Obligations hereunder, and each Loan Party shall remain liable for the full
amount of the Obligations of such Loan Party hereunder.
(b) Each
Loan Party hereby agrees that all Indebtedness and other monetary obligations
owed by it to any other Loan Party or any other Subsidiary shall be fully
subordinated to the indefeasible payment in full in cash of the
Obligations.
Miscellaneous
SECTION
6.01. Notices. All
communications and notices hereunder shall (except as otherwise expressly
permitted herein) be in writing and given as provided in Section 10.02 of
the Credit Agreement. All communications and notices hereunder to any
Subsidiary Loan Party shall be given to it in care of the Borrower as provided
in Section 10.02 of the Credit Agreement.
SECTION
6.02. Waivers;
Amendment. (a) No failure or delay by the Collateral Agent, any
other Agent, any LC Issuer or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Collateral Agent and
the other Secured Parties hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this
Section 6.02, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan or issuance
of a
Letter of Credit shall not be construed as a waiver of any Default, regardless
of whether the Collateral Agent, any other Agent, any Arranger, any Lender
or
any LC Issuer may have had notice or knowledge of such Default at the
time. No notice or demand on any Loan Party in any case shall entitle
any Loan Party to any other or further notice or demand in similar or other
circumstances.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by
the
Required Lenders and the Loan Party or Loan Parties with respect to which
such
waiver, amendment or modification is to apply, and acknowledged by the
Administrative Agent, subject to any consent required in accordance with
Section 10.01 of the Credit Agreement and the other terms of such
Section.
SECTION
6.03. Collateral Agent’s Fees and
Expenses; Indemnification. (a) The parties hereto agree that the
Collateral Agent shall be entitled to reimbursement of its expenses incurred
hereunder as provided in Section 10.04(a) of the Credit
Agreement.
(b) Without
limitation of its indemnification obligations under the other Loan Documents,
each Loan Party jointly and severally agrees to defend (subject to Indemnitees’
selection of counsel), indemnify, pay and hold harmless the Collateral Agent
and
the other Indemnitees (as defined in Section 10.04(b) of the Credit
Agreement) from and against any and all Indemnified Liabilities;
provided that no Loan Party shall have any obligation to any Indemnitee
hereunder with respect to any Indemnified Liability to the extent such
Indemnified Liability arises from the gross negligence or wilful misconduct
of
such Indemnitee. To the extent permitted by applicable Law, no Loan
Party shall assert, and each Loan Party hereby waives, any claim against
any
Indemnitee, on any theory of liability, for special, indirect, consequential
or
punitive damages (as opposed to direct or actual damages) (whether or not
the
claim therefor is based on contract, tort or duty imposed by any applicable
legal requirement) arising out of, in connection with, as a result of, or
in any
way related to, this Agreement or any other Loan Document, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof
or
any act or omission or event occurring in connection therewith, and each
Loan
Party hereby waives, releases and agrees not to xxx upon any such claim or
any
such damages, whether or not accrued and whether or not known or suspected
to
exist in its favor.
(c) Any
such amounts payable as provided hereunder shall be additional Obligations
secured hereby and by the other Loan Documents. The provisions of
this Section 6.03 shall remain in full force and effect regardless of the
termination of this Agreement or any other Loan Document, the consummation
of
the transactions contemplated hereby, the repayment of any of the Obligations,
the invalidity or unenforceability of any term or provision of this Agreement
or
any other Loan Document, or any investigation made by or on behalf of the
Collateral Agent or any other Secured Party. All amounts due under
this Section 6.03 shall be payable promptly after written demand
therefor.
SECTION
6.04. Successors and
Assigns. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the permitted successors
and assigns of such party; and all covenants, promises and
agreements
by or on behalf of any Loan Party or the Collateral Agent that are contained
in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
SECTION
6.05. Survival of
Agreement. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments prepared or delivered in connection with
or
pursuant to this Agreement or any other Loan Document shall be considered
to
have been relied upon by the Lenders and the LC Issuers and shall survive
the
execution and delivery of the Loan Documents and the making of any Loans
and
issuance of any Letters of Credit, regardless of any investigation made by
or on
behalf of any Lender or any LC Issuer and notwithstanding that any Agent,
any LC
Issuer or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended under
the Credit Agreement, and shall continue in full force and effect as long
as the
principal of or any accrued interest on any Loan or any fee or any other
amount
payable under any Loan Document is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitments have not expired or
terminated.
SECTION
6.06. Counterparts; Effectiveness;
Several Agreement. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which
shall
constitute an original but all of which when taken together shall constitute
a
single contract. Delivery of an executed signature page to this
Agreement by facsimile transmission or electronic transmission (pdf) shall
be as
effective as delivery of a manually signed counterpart of this
Agreement. This Agreement shall become effective as to any Loan Party
when a counterpart hereof executed on behalf of such Loan Party shall have
been
delivered to the Collateral Agent and a counterpart hereof shall have been
executed on behalf of the Collateral Agent, and thereafter shall be binding
upon
such Loan Party and the Collateral Agent and their respective permitted
successors and assigns, and shall inure to the benefit of such Loan Party,
the
Collateral Agent and the other Secured Parties and their respective successors
and assigns, except that no Loan Party shall have the right to assign or
transfer its rights or obligations hereunder or any interest herein or in
the
ABL Collateral (and any such assignment or transfer shall be void) except
as expressly contemplated by this Agreement or the Credit
Agreement. This Agreement shall be construed as a separate agreement
with respect to each Loan Party and may be amended, modified, supplemented,
waived or released with respect to any Loan Party without the approval of
any
other Loan Party and without affecting the obligations of any other Loan
Party
hereunder.
SECTION
6.07. Severability. Any
provision of this Agreement held to be invalid, illegal or unenforceable
in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The parties
hereto shall endeavor in good faith negotiations to replace the invalid,
illegal
or unenforceable provisions with valid provisions the economic effect of
which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION
6.08. Right of
Set-Off. If an Event of Default shall have occurred and be
continuing, each Agent, each Lender, each LC Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and
other obligations at any time owing by such Agent, such Lender, such LC Issuer
or such Affiliate to or for the credit or the account of any Loan Party against
any of and all the Obligations of such Loan Party now or hereafter existing
under this Agreement owed to such Agent, such Lender or such LC Issuer,
irrespective of whether or not such Agent, such Lender or such LC Issuer
shall
have made any demand under this Agreement and although such obligations may
be
unmatured. The rights of each Agent, each Lender, each LC Issuer and
its Affiliates under this Section 6.08 are in addition to other rights and
remedies (including other rights of set-off) which such Person may
have. For the avoidance of doubt, any payments obtained by any Lender
pursuant to the exercise of rights under this Section 6.08 shall be subject
to Section 2.14 of the Credit Agreement.
SECTION
6.09. Governing Law; Jurisdiction;
Consent to Service of Process. (a) This Agreement shall be
construed in accordance with and governed by the law of the State of
New York.
(b) Each
of the Loan Parties hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the Supreme Court of
the
State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and
any appellate court from any thereof, in any action or proceeding arising
out of
or relating to this Agreement or any other Loan Document, or for recognition
or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action
or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall
be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or
in any other manner provided by law. Nothing in this Agreement or any
other Loan Document shall affect any right that any Agent, any LC Issuer
or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against any Loan Party, or its properties
in the courts of any jurisdiction.
(c) Each
of the Loan Parties hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which
it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in
any
court referred to in paragraph (b) of this
Section 6.09. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such
court.
(d) Each
party to this Agreement irrevocably consents to service of process in the
manner
provided for notices in Section 6.01. Nothing in this Agreement
or any other Loan Document will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
SECTION
6.10. WAIVER OF JURY
TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 6.10.
SECTION
6.11. Headings. Article
and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and are not
to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION
6.12. Security Interest
Absolute. All rights of the Collateral Agent hereunder, the
Security Interest and all obligations of each Loan Party hereunder shall
be
absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Credit Agreement, any other Loan Document, any agreement
with respect to any of the Obligations or any other agreement or instrument
relating to any of the foregoing, (b) any change in the time, manner or
place of payment of, or in any other term of, all or any of the Obligations,
or
any other amendment or waiver of or any consent to any departure from the
Credit
Agreement, any other Loan Document or any other agreement or instrument,
(c) any exchange, release or non-perfection of any Lien on other
collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the
Obligations, or (d) any other circumstance that might otherwise constitute
a defense available to, or a discharge of, any Loan Party in respect of the
Obligations or this Agreement.
SECTION
6.13. Termination or
Release. (a) This Agreement, the Guarantees made herein, the
Security Interest and all other security interests granted hereby shall
terminate when all the Obligations (other than, with respect to the termination
of the Security Interest and all other security interests granted hereby
only,
any Obligations that consist solely of contingent obligations) have been
indefeasibly paid in full, all Commitments under the Credit Agreement shall
have
been reduced to zero, no LC Issuer shall have any obligation to issue Letters
of
Credit under the Credit Agreement and no Letter of Credit shall be outstanding
(other than any Letter of Credit the obligations under which have been cash
collateralized in full or supported by letters of credit of other banks naming
the applicable LC Issuer as the beneficiary, in each case, in
a
manner satisfactory to the applicable LC Issuer). In connection with
any termination pursuant to this paragraph, the Collateral Agent shall execute
and deliver to any Loan Party, at such Loan Party’s expense, all Uniform
Commercial Code termination statements and any other documents that such
Loan
Party shall reasonably request to evidence such termination. Any
execution and delivery of documents pursuant to this Section 6.13 shall be
without recourse to, or representation of warranty by, the Collateral Agent
or
any other Secured Party.
(b) Except
as provided in paragraph (a) above, the release of any Subsidiary Loan Party
from its obligations hereunder and of the Security Interest in any
ABL Collateral shall be governed by Section 9.08(a) of the Credit
Agreement.
SECTION
6.14. Additional
Subsidiaries. Pursuant to Section 6.13(c) of the Credit
Agreement, certain Subsidiaries not originally parties hereto may be required
from time to time to enter in this Agreement as Subsidiary Loan
Parties. Upon execution and delivery by the Collateral Agent and a
Subsidiary of an instrument in the form of Exhibit I hereto, such
Subsidiary shall become a party to this Agreement as a Subsidiary Loan Party
(and a guarantor and grantor hereunder) with the same force and effect as
if
originally named as a Subsidiary Loan Party herein. The execution and
delivery of any such instrument shall not require the consent of any other
Loan
Party hereunder. The rights and obligations of each Loan Party
hereunder shall remain in full force and effect notwithstanding the addition
of
any new Loan Party as a party to this Agreement.
SECTION
6.15. Collateral Agent Appointed
Attorney-in-Fact. Each Loan Party hereby appoints the Collateral
Agent the attorney-in-fact of such Loan Party for the purpose of carrying
out
the provisions of this Agreement and taking any action and executing any
instrument that the Collateral Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment is irrevocable and coupled
with an interest. Without limiting the generality of the foregoing,
the Collateral Agent shall have the right, but only upon the occurrence and
during the continuance of an Event of Default, with full power of substitution
either in the Collateral Agent’s name or in the name of such Loan Party
(a) to receive, endorse, assign and/or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment relating
to the ABL Collateral or any part thereof; (b) to demand, collect,
receive payment of, give receipt for and give discharges and releases of
all or
any of the ABL Collateral; (c) to sign the name of any Loan Party on
any invoice or xxxx of lading relating to any of the ABL Collateral;
(d) to send verifications of Accounts Receivable to any Account Debtor;
(e) to commence and prosecute any and all suits, actions or proceedings at
law or in equity in any court of competent jurisdiction to collect or otherwise
realize on all or any of the ABL Collateral or to enforce any rights in
respect of any ABL Collateral; (f) to settle, compromise, compound,
adjust or defend any actions, suits or proceedings relating to all or any
of the
ABL Collateral; (g) to notify, or to require any Loan Party to notify,
Account Debtors to make payment directly to the Collateral Agent; and
(h) to use, sell, assign, transfer, pledge, make any agreement with respect
to or otherwise deal with all or any of the Collateral, and to do all other
acts
and things necessary to carry out the purposes of this Agreement, as fully
and
completely as though the Collateral Agent were the absolute owner of the
ABL Collateral for all purposes; provided that nothing herein
contained
shall be construed as requiring or obligating the Collateral Agent to make
any
commitment or to make any inquiry as to the nature or sufficiency of any
payment
received by the Collateral Agent, or to present or file any claim or notice,
or
to take any action with respect to the ABL Collateral or any part thereof
or the
moneys due or to become due in respect thereof or any property covered
thereby. The Collateral Agent and the other Secured Parties shall be
accountable only for amounts actually received as a result of the exercise
of
the powers granted to them herein, and neither they nor their officers,
directors, employees or agents shall be responsible to any Loan Party for
any
act or failure to act hereunder, except for their own gross negligence, bad
faith or wilful misconduct.
[The
remainder of this page is blank.]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
SPECTRUM
BRANDS, INC., as the Borrower
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | ||
| Name: | Xxxxxxx X. Xxxxxx | ||
| Title: | Senior Vice President and Chief Financial Officer | ||
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
ROV
HOLDING, INC.,
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | ||
| Name: | Xxxxxxx X. Xxxxxx | ||
| Title: | Vice President and Treasurer | ||
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
ROVCAL,
INC.,
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | ||
| Name: | Xxxxxxx X. Xxxxxx | ||
| Title: | Vice President and Treasurer | ||
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
UNITED
INDUSTRIES
CORPORATION,
|
|||
|
By:
|
/s/ Xxxxxx Xxxxxxx | ||
| Name: | Xxxxxx Xxxxxxx | ||
| Title: | Treasurer and Chief Financial Officer | ||
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
SPECTRUM
NEPTUNE US HOLDCO
CORPORATION,
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | ||
| Name: | Xxxxxxx X. Xxxxxx | ||
| Title: | Vice President, Treasurer and Chief Financial Officer | ||
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
XXXXXXX
COMPANY,
|
|||
|
By:
|
/s/ Xxxxxx Xxxxxxx | ||
| Name: | Xxxxxx Xxxxxxx | ||
| Title: | Treasurer and Chief Financial Officer | ||
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
UNITED
PET GROUP,
INC.,
|
|||
|
By:
|
/s/ Xxx Xxx | ||
| Name: | Xxx Xxx | ||
| Title: | Vice President Finance and Treasurer | ||
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
DB
ONLINE,
LLC,
|
|||
|
By:
|
United Pet Group, Inc., its Managing Member | ||
|
By:
|
/s/ Xxx Xxx | ||
| Name: | Xxx Xxx | ||
| Title: | Vice President Finance and Treasurer | ||
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
SOUTHERN
CALIFORNIA FOAM,
INC.,
|
|||
|
By:
|
/s/ Xxx Xxx | ||
| Name: | Xxx Xxx | ||
| Title: | Vice President Finance and Treasurer | ||
[ABL
Guarantee and Collateral
Agreement]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
AQUARIA,
INC.,
|
|||
|
By:
|
/s/ Xxx Xxx | ||
| Name: | Xxx Xxx | ||
| Title: | Vice President Finance and Treasurer | ||
[ABL
Guarantee and Collateral
Agreement]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
AQUARIUM
SYSTEMS,
INC.,
|
|||
|
By:
|
/s/ Xxx Xxx | ||
| Name: | Xxx Xxx | ||
| Title: | Vice President Finance and Treasurer | ||
[ABL
Guarantee and Collateral
Agreement]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
PERFECTO
MANUFACTURING,
INC.,
|
|||
|
By:
|
/s/ Xxx Xxx | ||
| Name: | Xxx Xxx | ||
| Title: | Vice President Finance and Treasurer | ||
[ABL
Guarantee and Collateral
Agreement]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
TETRA
HOLDING (US),
INC.,
|
|||
|
By:
|
/s/ Xxx Xxx | ||
| Name: | Xxx Xxx | ||
| Title: | Vice President Finance and Treasurer | ||
[ABL
Guarantee and Collateral
Agreement]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
day and year first above written.
|
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
the Collateral
Agent
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxx | ||
| Name: | Xxxxxx X. Xxxxx | ||
| Title: | Director | ||
[ABL
Guarantee and Collateral
Agreement]
Subsidiary
Loan Parties
|
Grantor
|
Type
of
Organization
|
Jurisdiction
of
Organization
|
Organization
Identification
Number
|
|
ROV
Holding, Inc.
|
Corporation
|
Delaware
|
0946128
|
|
ROVCAL,
Inc.
|
Corporation
|
California
|
C2063405
|
|
United
Industries Corporation
|
Corporation
|
Delaware
|
0790751
|
|
Spectrum
Neptune
US
Holdco Corporation
|
Corporation
|
Delaware
|
3786826
|
|
Xxxxxxx
Company
|
Corporation
|
Missouri
|
00069779
|
|
United
Pet Group, Inc.
|
Corporation
|
Delaware
|
3066897
|
|
DB
Online, LLC
|
Limited
Liability Company
|
Hawaii
|
29170
|
|
Southern
California Foam, Inc.
|
Corporation
|
California
|
C1456775
|
|
Aquaria,
Inc.
|
Corporation
|
California
|
C0553017
|
|
Aquarium
Systems, Inc.
|
Corporation
|
Delaware
|
2583486
|
|
Perfecto
Manufacturing, Inc.
|
Corporation
|
Delaware
|
2626833
|
|
Tetra
Holding (US), Inc.
|
Corporation
|
Delaware
|
3589555
|
SUPPLEMENT
NO. __ dated as of
[ ],
to the ABL Guarantee and Collateral Agreement dated as of September 28, 2007,
among SPECTRUM BRANDS, INC., a Delaware corporation (the
“Borrower”), each subsidiary of the Borrower listed on
Schedule I thereto (collectively, the
“Subsidiary Loan
Parties”; the Subsidiary Loan Parties and the Borrower are
referred to collectively herein as the “Loan Parties”)
and WACHOVIA BANK, NATIONAL ASSOCIATION (“Wachovia”),
as the Collateral Agent.
A. Reference
is made to the Credit Agreement dated as of September [ ], 2007
(as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), among the Borrower, the other
Loan Parties party thereto, the Lenders party thereto, Wachovia, as the
Administrative Agent, the Collateral Agent and an LC Issuer, and Xxxxxxx
Xxxxx
Credit Partners L.P., as the Syndication Agent.
B. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement and the Guarantee and Collateral
Agreement referred to therein.
C. The
Loan Parties have entered into the Guarantee and Collateral Agreement in
order
to induce the Lenders to make Loans and the LC Issuers to issue Letters of
Credit. Section 6.14 of the Guarantee and Collateral Agreement
provides that additional Subsidiaries of the Borrower may become party to
the
Guarantee and Collateral Agreement as Subsidiary Loan Parties by execution
and
delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the “New Subsidiary”) is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a party to the Guarantee and Collateral Agreement as
a
Subsidiary Loan Party in order to induce the Lenders to make additional Loans
and the LC Issuers to issue additional Letters of Credit and as consideration
for Loans previously made and Letters of Credit previously issued.
Accordingly,
the Collateral Agent and the New Subsidiary agree as follows:
SECTION
1. In accordance with Section 6.14 of the Guarantee and
Collateral Agreement, the New Subsidiary by its signature below becomes a
party
to the Guarantee and Collateral Agreement as a Subsidiary Loan Party and
Loan
Party thereunder (and accordingly, becomes a guarantor and a grantor
thereunder), with the same force and effect as if originally named therein
as a
Subsidiary Loan Party, and the New Subsidiary hereby (a) agrees to all the
terms and provisions of the Guarantee and Collateral Agreement applicable
to it
as a Subsidiary Loan Party and a guarantor and a grantor thereunder and
(b) represents and warrants that the representations and warranties made by
it as a Loan Party thereunder are true and correct on and as of the date
hereof. In furtherance of the foregoing, the New Subsidiary, as
security for the payment and performance in full of the Obligations does
hereby
(i) create and grant to the Collateral Agent, its successors and assigns,
for the benefit of the Secured Parties, a security interest
in
and lien on all of the New Subsidiary’s right, title and interest in, to and
under the ABL Collateral of the New Subsidiary, (b) guarantee the
Obligations as set forth in Article II of the Guarantee and Collateral
Agreement and (c) authorize the Collateral Agent at any time and from time
to time to file in the applicable jurisdictions any initial financing statements
with respect to the ABL Collateral or any part thereof and amendments
thereto and continuations thereof that contain the information required by
Article 9 of the Uniform Commercial Code of each applicable jurisdiction
for the
filing of any financing statement or amendment. Without limiting the
foregoing, each Loan Party hereby irrevocably authorizes the Collateral Agent
at
any time and from time to time to file in any relevant jurisdiction financing
statements that describe the ABL Collateral as “all assets, whether now owned or
hereafter acquired” of such Loan Party, or words of similar effect as being of
an equal or lesser scope or with greater detail. Each reference to a
“Subsidiary Loan Party” or a “Loan Party” in the Guarantee and Collateral
Agreement shall be deemed to include the New Subsidiary. The
Guarantee and Collateral Agreement is hereby incorporated herein by
reference.
SECTION
2. The New Subsidiary represents and warrants to the
Collateral Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal,
valid
and binding obligation, enforceable against it in accordance with its
terms.
SECTION
3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute
a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received a counterpart of this Supplement that bears the
signature of the New Subsidiary and the Collateral Agent has executed a
counterpart hereof. Delivery of an executed signature page to this
Supplement by facsimile transmission or electronic transmission (pdf) shall
be
as effective as delivery of a manually signed counterpart of this
Supplement.
SECTION
4. The New Subsidiary hereby represents and warrants that set
forth under its signature hereto, is the true and correct legal name of the
New
Subsidiary, its jurisdiction of formation, the organizational identification
number, if any, issued to it by its jurisdiction of formation and the location
of its chief executive office.
SECTION
5. Except as expressly supplemented hereby, the Guarantee and
Collateral Agreement shall remain in full force and effect.
SECTION
6. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO
THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING
IN NEW
YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS SUPPLEMENT OR
ANY
OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND
EACH
OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS
IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
NEW
YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS SUPPLEMENT OR IN ANY OTHER LOAN
DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY AGENT, ANY LENDER OR ANY LC ISSUER
MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS SUPPLEMENT
OR
ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
SECTION
7. Any provision of this Supplement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction,
be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and
enforceability of the remaining provisions hereof and of the Guarantee and
Collateral Agreement and the Credit Agreement; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction. The parties hereto shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION
8. All communications and notices hereunder shall be in
writing and given as provided in Section 6.01 of the Guarantee and
Collateral Agreement.
SECTION
9. The New Subsidiary agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel
for
the Collateral Agent.
IN
WITNESS WHEREOF, the New Subsidiary and the Collateral Agent have duly executed
this Supplement to the Guarantee and Collateral Agreement as of the day and
year
first above written.
|
[NAME
OF NEW SUBSIDIARY],
|
||
|
by
|
||
|
Name:
|
||
|
Title:
|
||
|
Legal
Name:
|
||
|
Jurisdiction
of Formation:
|
||
|
Organizational
ID Number:
|
||
|
Location
of Chief Executive office:
|
||
|
WACHOVIA
BANK, NATIONAL ASSOCIATION, as the Collateral Agent,
|
||
|
by
|
||
|
Name:
|
||
|
Title:
|
||
