EX-4.3 3 dex43.htm SECURITY AGREEMENT SECURITY AGREEMENT SECURITY AGREEMENT (this “Agreement”), dated as of August 24, 2010, by and among: Toys “R” Us- Delaware, Inc., a Delaware corporation (the “Issuer”);
Exhibit 4.3
SECURITY AGREEMENT (this “Agreement”), dated as of August 24, 2010, by and among:
Toys “R” Us-Delaware, Inc., a Delaware corporation (the “Issuer”);
the other Grantors identified on the signature pages hereto (each such Person, individually, a “Grantor; the Issuer and each Guarantor are hereinafter referred to individually as a “Grantor” and the Issuer and the other Grantors are hereinafter referred to collectively as the “Grantors”); and
THE BANK OF NEW YORK MELLON, having a place of business at x/x Xxx Xxxx xx Xxx Xxxx Xxxxxx Trust Company, N.A., 000 Xxxxxxx Xxxx Xxxxx, 00xx Xxxxx, Xxxxxxxxxx, XX 00000, as collateral agent for its own benefit and the benefit of the Trustee (as defined below) and the other Secured Parties (in such capacity, the “Collateral Agent”).
WHEREAS, the Issuer is issuing $350,000,000 aggregate principal amount of 7 3/8% Senior Secured Notes due 2016 (together with any Additional Notes permitted to be incurred under the Indenture, the “Notes”) pursuant to the Indenture, dated as of August 24, 2010 (as it may be modified, amended or supplemented and in effect from time to time, the “Indenture”), by and among (i) Toys “R” Us-Delaware, Inc., as Issuer, (ii) the guarantors named therein, and (iii) The Bank of New York Mellon, as trustee (in such capacity, the “Trustee”) for the Holders of the Notes (the “Holders”); and
ARTICLE I.
SECTION 1.1. Generally. All references herein to the UCC shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however,
that if a term is defined in Article 9 of the UCC differently than in another Article thereof, the term shall have the meaning set forth in Article 9; provided further that if by reason of mandatory provisions of law, perfection, or the effect of perfection or non-perfection, of the Security Interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “UCC” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of such remedy, as the case may be.
“ABL Agent” shall mean Bank of America, N.A., in its capacity as Collateral Agent under the ABL Credit Agreement and its successors and assigns.
“ABL Collateral” shall have the meaning given that term in the Shared Collateral Intercreditor Agreement.
“ABL Credit Agreement” shall mean that certain Credit Agreement, dated as of July 21, 2005, as amended and restated as of June 24, 2009 and as further amended and restated as of August 10, 2010 (as modified, amended, supplemented, restated or replaced and in effect from time to time), by and among (i) Toys “R” Us-Delaware, Inc., as the lead borrower for the borrowers party thereto, (ii) the facility guarantors party thereto, (iii) Bank of America, N.A., as administrative agent, (iv) Bank of America, N.A. (acting through its Canada branch), as Canadian agent for its own benefit and the benefit of the other “Secured Parties” thereunder (and as defined therein), (v) the lenders party thereto and (vi) the other agents and parties thereto.
“ABL Obligations” shall have the meaning given that term in the Indenture.
“Accessions” shall have the meaning given that term in the UCC.
“Account Debtor” shall have the meaning given that term in the UCC and shall include any Person who is or who may become obligated to any Grantor under, with respect to or on account of an Account.
“Accounts” shall mean “accounts” as defined in the UCC, and also means a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered, or (c) arising out of the use of a credit or charge card or information contained on or for use with the card.
“Agent’s Rights and Remedies” shall have the meaning provided in Section 8.8.
“Applicable Law” means as to any Person: (a) all laws, statutes, rules, regulations, orders, codes, ordinances or other requirements having the force of law; and (b) all
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court orders, decrees, judgments, injunctions, notices, binding agreements and/or rulings, in each case of or by any governmental authority which has jurisdiction over such Person, or any property of such Person.
“Blue Sky Laws” shall have the meaning provided in Section 6.1.
“Chattel Paper” shall have the meaning given that term in the UCC.
“Collateral” shall mean all of the following personal property of each Grantor (other than Xxxxxxxx): (a) Accounts, (b) Chattel Paper, (c) Commercial Tort Claims, (d) Deposit Accounts, (e) Documents, (f) Equipment, (g) General Intangibles (including Payment Intangibles and Intellectual Property), (h) Goods, (i) Instruments, (j) Inventory, (k) Investment Property, (l) Letter-of-Credit Rights, (m) Software, (n) Supporting Obligations, (o) money, policies and certificates of insurance, deposits, cash or other property, (p) all books, records, and information relating to any of the foregoing and/or to the operation of any Grantor’s business, and all rights of access to such books, records, and information, and all property in which such books, records, and information are stored, recorded and maintained, (q) all insurance proceeds, refunds, and premium rebates, including, without limitation, proceeds of fire and credit insurance, whether any of such proceeds, refunds, and premium rebates arise out of any of the foregoing ((a) through (p)) or otherwise, (r) all liens, guaranties, rights, remedies, and privileges pertaining to any of the foregoing ((a) through (q)), including the right of stoppage in transit, (s) all other personal property of every kind and nature of each Grantor, and (t) any of the foregoing whether now owned or now due, or in which any Grantor has an interest, or hereafter acquired, arising, or to become due, or in which any Grantor obtains an interest, and all products, Proceeds, substitutions, and Accessions of or to any of the foregoing; provided, however, that the Collateral shall not include the Excluded Collateral.
“Commercial Tort Claim” shall have the meaning given that term in the UCC.
“Control” shall have the meaning given that term in the UCC.
“Deposit Account” shall have the meaning given that term in the UCC.
“Discharge of ABL Obligations” shall have the meaning given that term in the Shared Collateral Intercreditor Agreement.
“Documents” shall have the meaning given that term in the UCC.
“Domestic Subsidiary” shall mean “Domestic Subsidiary” as such term is used and defined in the Parent Indentures.
“Electronic Chattel Paper” shall have the meaning given that term in the UCC.
“Equipment” shall mean “equipment” as defined in the UCC, and any and all Accessions or additions thereto or substitutions therefor. The term “Equipment” shall not include Fixtures.
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“Excluded Xxxxxxxx Collateral” shall mean (a) any rights or property acquired under a lease, contract, property rights agreement or license, the grant of a security interest in which shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (ii) a breach or termination pursuant to the terms of, or a default under, any lease, contract, property rights agreement or license (other than to the extent that any restriction on such assignment would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other Applicable Law or principles of equity); provided that the proceeds therefrom shall not be excluded from the definition of Collateral to the extent that the assignment of such proceeds is not prohibited, (b) any governmental permit or franchise that prohibits Liens on or collateral assignments of such permit or franchise, (c) any Instrument evidencing indebtedness (it being understood such term is defined consistently with such term as used in the Parent Indentures) of any Domestic Subsidiary, (d) any Security or other equity interest representing more than 65% of the outstanding voting stock of any Foreign Subsidiary, (e) any Security or other equity interest representing any ownership interest in any Domestic Subsidiary, (f) any Security or other equity interest representing any ownership interest in TRU of Puerto Rico, Inc., SALTRU Associates JV or ZT-Winston-Salem Associates and (g) Fixtures.
“Financing Statement” shall have the meaning given that term in the UCC.
“Fixtures” shall have the meaning given that term in the UCC.
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“Foreign Subsidiary” shall mean, as to any Grantor, a Subsidiary that is organized under the laws of any jurisdiction other than the United States of America or any state thereof or the District of Columbia.
“General Intangibles” shall have the meaning given that term in the UCC, and shall also include, without limitation, all: Intellectual Property; Payment Intangibles; rights to payment for credit extended; deposits; amounts due to any Grantor; credit memoranda in favor of any Grantor; warranty claims; tax refunds and abatements; insurance refunds and premium rebates; all means and vehicles of investment or hedging, including, without limitation, options, warrants, and futures contracts; records; customer lists; telephone numbers; goodwill; causes of action; judgments; payments under any settlement or other agreement; literary rights; rights to performance; royalties; license and/or franchise fees; rights of admission; licenses; franchises; license agreements, including all rights of any Grantor to enforce same; permits, certificates of convenience and necessity, and similar rights granted by any governmental authority; internet addresses and domain names; developmental ideas and concepts; proprietary processes; blueprints, drawings, designs, diagrams, plans, reports, and charts; catalogs; technical data; computer software programs (including the source and object codes therefor), computer records, computer software, rights of access to computer record service bureaus, service bureau computer contracts, and computer data; tapes, disks, semi conductors chips and printouts; user, technical reference, and other manuals and materials; proposals; cost estimates, and reproductions on paper, or otherwise, of any and all concepts or ideas, and any matter related to, or connected with, the design, development, manufacture, sale, marketing, leasing, or use of any or all property produced, sold, or leased, by or credit extended or services performed, by any Grantor, whether intended for an individual customer or the general business of any Grantor, or used or useful in connection with research by any Grantor; provided that “General Intangibles” shall not include any indebtedness (defined consistently with such term as used in the Parent Indentures) of any Domestic Subsidiary.
“Xxxxxxxx” shall mean Xxxxxxxx, LLC, a Delaware corporation.
“Xxxxxxxx Collateral” shall mean all of the following personal property of Xxxxxxxx: (a) General Intangibles comprised of Intellectual Property, (b) all books, records, and information relating to any of the foregoing and all rights of access to such books, records, and information, and all property in which such books, records, and information are stored, recorded and maintained, (c) all liens, guaranties, rights, remedies, and privileges pertaining to any of the foregoing ((a) through ((b)), and (d) any of the foregoing whether now owned or now due, or in which Xxxxxxxx has an interest, or hereafter acquired, arising, or to become due, or in which Xxxxxxxx obtains an interest, and all products, Proceeds, substitutions, and Accessions of or to any of the foregoing; provided, however, that the Xxxxxxxx Collateral shall not include the Excluded Xxxxxxxx Collateral.
“Goods” shall have the meaning given that term in the UCC.
“Grantor” shall have the meaning given that term in the preliminary statement of this Agreement.
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“Guarantee” shall have the meaning given that term in the preliminary statement of this Agreement.
“Indemnitee” shall have the meaning given that term in Section 8.6.
“Indenture” shall have the meaning given that term in the preliminary statement of this Agreement.
“Instruments” shall have the meaning given that term in the UCC; provided that “Instruments” shall not include any Instrument evidencing indebtedness of any Domestic Subsidiary.
“Intellectual Property” shall mean (a) the Intercompany Licenses and (b) all of the following owned by any Grantor (including Xxxxxxxx): all (i) patents, patent applications and patents pending; (ii) trade secret rights; (iii) copyrights and copyright applications, including mask work rights and derivative works; (iv) trade names, trademarks, trademark applications, service marks, and service xxxx applications; (v) Proprietary Marks and (vi) all other general intangible property in the nature of intellectual property recognized by the laws of the United States; provided that any “intent to use” trademark applications for which a statement of use has not been filed with the United States Patent and Trademark Office pursuant to Section 1(c) or Section 1(d) of the Xxxxxx Act (15 U.S.C. 1051, et seq.) (but only until such statement is filed and accepted by the United States Patent and Trademark Office) are excluded from this definition.
“Intercompany Licenses” shall mean the license agreements described on Exhibit A hereto between certain of the Grantors and Xxxxxxxx, pursuant to which Xxxxxxxx has granted to such Grantors licenses of the Proprietary Marks.
“Intercreditor Agreements” shall have the meaning given that term in the Indenture.
“Inventory” shall have the meaning given that term in the UCC, and shall also include, without limitation, all (a) Goods which (i) are leased by a Person as lessor, (ii) are held by a Person for sale or lease or to be furnished under a contract of service, (iii) are furnished by a Person under a contract of service, or (iv) consist of raw materials, work in process, or materials used or consumed in a business; (b) Goods of said description in transit; (c) Goods of said description which are returned, repossessed or rejected; (d) packaging, advertising, and shipping materials related to any of the foregoing; (e) all names, marks, and General Intangibles affixed or to be affixed thereto or associated therewith; and (f) Documents which represent any of the foregoing.
“Investment Property” shall have the meaning given that term in the UCC; provided that “Investment Property” (a) shall not include any Security representing more than 65% of the outstanding voting stock of any Foreign Subsidiary, (b) shall not include any Security representing any ownership interest in any Domestic Subsidiary and (c) shall not include any Security or other equity interest representing any ownership interest in TRU of Puerto Rico, Inc., SALTRU Associates JV or ZT-Winston-Salem Associates.
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“Issuer” shall have the meaning provided in the preliminary statement of this Agreement.
“Letter-of-Credit Right” shall have the meaning given that term in the UCC.
“Liquidation” means the exercise by the Collateral Agent and the Trustee of those rights and remedies accorded to the Collateral Agent and Trustee under the Indenture, the Security Documents and Applicable Law as a creditor of the Grantors, including (after the occurrence and during the continuation of an Event of Default) the conduct by the Issuer, acting with the consent of the Collateral Agent and Trustee, of any public, private or “Going-Out-Of-Business Sale” or other disposition of Collateral for the purpose of liquidating the Collateral. Derivations of the word “Liquidation” (such as “Liquidate”) are used with like meaning in this Agreement.
“Parent Indentures” means each of:
(i) the Indenture, dated as of July 24, 2001, originally between Toys “R” Us, Inc. and The Bank of New York, as trustee, with respect to 7.625% Notes due 2011 (the “2011 Notes”),
(ii) the Indenture dated as of May 28, 2002 originally between Toys “R” Us, Inc. and The Bank of New York, as trustee, with respect to 7.875% Notes due 2013 (the “2013 Notes”),
(iii) the Indenture dated as of May 28, 2002 originally between Toys “R” Us, Inc. and The Bank of New York, as trustee, with respect to 7.375% Notes due 2018, and
(iv) the Indenture dated as of August 29, 1991 originally between Toys “R” Us, Inc. and The Bank of New York, as successor trustee, with respect to 8.75% Debentures due 2021 (the “2021 Debentures”), each as modified, amended, supplemented or restated and in effect from time to time.
“Payment Intangible” shall have the meaning given that term in the UCC.
“Perfection Certificate” shall mean a certificate substantially in the form of Annex 1 hereto, dated the date hereof, completed and supplemented with the schedules and attachments contemplated thereby, and duly executed by an Officer of each of the Grantors.
“Proceeds” shall include, without limitation, “Proceeds” as defined in the UCC and each type of property described in the definition of Collateral.
“Proprietary Marks” shall mean any and all United States trademarks (including any copyrights that exist in such trademarks, but excluding all other copyrights), service marks, trade names, corporate names, company names, business names, fictitious business names, trade dress, trade styles, designs, logos and other source or business identifiers,
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whether registered or unregistered, which are owned or licensed, now or in the future, by Xxxxxxxx, including, but not limited to, as of the date hereof, the United States Proprietary Marks set forth on Exhibit B annexed hereto.
“Secured Parties” shall mean the Collateral Agent, the Trustee and the Holders.
“Secured Obligations” shall mean, collectively, the “Notes Obligations” (as defined in the Indenture).
“Securities Act” shall have the meaning provided in Section 6.1.
“Security” shall have the meaning given that term in the UCC.
“Security Documents” shall have the meaning given to that term in the Indenture.
“Security Interest” shall have the meaning provided in Section 2.1.
“Shared Collateral Intercreditor Agreement” shall have the meaning given that term in the Indenture.
“Software” shall have the meaning given that term in the UCC.
“Supporting Obligation” shall have the meaning given that term in the UCC.
“Term Loan Collateral Agent” means Bank of America, N.A., as administrative agent, under the Term Loan Credit Facility, or its successors.
“Term Loan Credit Facility” shall have the meaning given that term in the Indenture.
“Term Loan Credit Facility Obligations” means “Obligations” as defined in the Term Loan Credit Facility.
ARTICLE II.
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whether now owned or hereafter acquired or arising (the “Security Interest”); provided that the security interest granted to the Collateral Agent in, to and under Intercompany Licenses shall be limited to the non-exclusive right to use the Proprietary Marks in exercising the Agent’s Rights and Remedies in connection with a Liquidation. Without limiting the foregoing, each Grantor hereby designates the Collateral Agent as such Grantor’s true and lawful attorney, exercisable by the Collateral Agent whether or not an Event of Default exists, with full power of substitution, at the Collateral Agent’s option, to file one or more Financing Statements, continuation statements, or to sign other documents for the purpose of perfecting, confirming or continuing the Security Interest granted by each Grantor, without the signature of any Grantor (each Grantor hereby appointing the Collateral Agent as such Person’s attorney to sign such Person’s name to any such instrument or document, whether or not an Event of Default exists), and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party.
Notwithstanding anything to the contrary in this Agreement, in the event that the Issuer becomes subject to Rule 3-16 of Regulation S-X under the Securities Act to the extent necessary and for so long as required for a Subsidiary of the Issuer not to be subject to the requirement to file separate financial statements with the Securities and Exchange Commission (or any other governmental agency), the Capital Stock of any Subsidiary of the Issuer shall not be included in the Collateral with respect to the Notes and shall not be subject to the Liens securing the Notes and the Notes Obligations.
ARTICLE III.
Representations and Warranties
The Grantors jointly and severally represent and warrant to the Collateral Agent and the Secured Parties that:
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statements or as a result of any change in a Grantor’s name or jurisdiction of incorporation or formation or under any other circumstances under which, pursuant to the UCC, filings previously made have become misleading or ineffective in whole or in part.
SECTION 3.3. Absence of Other Liens. The Collateral and the Xxxxxxxx Collateral is owned by the Grantors free and clear of any Lien, except for (i) Permitted Liens or (ii) Liens for which termination statements have been delivered to the Collateral Agent. Except as provided in the Indenture and the Security Documents, the Grantors have not filed or consented to the filing of (a) any Financing Statement or analogous document under the UCC or any other Applicable Law covering any Collateral or any Xxxxxxxx Collateral, or (b) any assignment in which any Grantor assigns any Collateral, any Xxxxxxxx Collateral or any security agreement or similar instrument covering any Collateral or any Xxxxxxxx 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 3.4. Bailees, Warehousemen, Etc. Schedule 3.4 hereto sets forth a list, as of the Closing Date, of each bailee, warehouseman and other third party in possession or control of any Inventory of any Grantor and specifies as to each bailee, warehouseman or other third party whether the value of the Inventory, at Cost (as defined in the ABL Credit Agreement), possessed or controlled by such bailee, warehouse-man or other third party exceeds $20,000,000.
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ARTICLE IV.
The Grantors jointly and severally covenant and agree with the Collateral Agent and the Secured Parties as follows:
SECTION 4.1. Change of Name; Location of Collateral; Records; Place of Business.
(a) Each Grantor agrees to furnish to the Collateral Agent prompt written notice of any change in: (i) any Grantor’s name; (ii) the location of any Grantor’s chief executive office or, its principal place of business; (iii) any Grantor’s organizational legal entity designation or jurisdiction of incorporation or formation; (iv) any Grantor’s Federal Taxpayer Identification Number or organizational identification number assigned to it by its jurisdiction of incorporation or formation; or (v) the acquisition by any Grantor of any material property for which additional filings or recordings are necessary to perfect and maintain the Collateral Agent’s Security Interest therein (to the extent perfection of the Security Interest in such property is required by the terms hereof). Each Grantor agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or other Applicable Law that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected (to the extent perfection of the Security Interest in such property is required by the terms hereof) first priority security interest in all of the Xxxxxxxx Collateral (subject only to Permitted Liens having priority by operation of Applicable Law) and a second priority security interest in all of the Collateral (subject only to (i) with respect to the ABL Collateral only, Liens securing the obligations of the Grantors with respect to the ABL Credit Agreement, and (ii) Permitted Liens having priority by operation of Applicable Law) for its benefit and the benefit of the other Secured Parties.
(b) Each Grantor agrees to maintain, at its own cost and expense, such complete and accurate records with respect to the Collateral and the Xxxxxxxx Collateral owned by it as is consistent with its current practices or in accordance with such prudent and standard practices used in industries that are the same as, or similar to, those in which such Grantor is engaged, but in any event to include materially complete accounting records indicating all payments and proceeds received with respect to any part of the Collateral or the Xxxxxxxx Collateral, and, at such time or times as the Collateral Agent may reasonably request in writing, promptly to prepare and deliver to the Collateral Agent a duly certified schedule or schedules in form and detail reasonably satisfactory to the Collateral Agent showing the identity, amount and location of any and all Collateral and Xxxxxxxx Collateral.
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any such payments or the taking of any such action by the Collateral Agent shall not be deemed to constitute a waiver of any Default or Event of Default arising from any Grantor’s failure to have made such payments or taken such action.
SECTION 4.5. Assignment of Security Interest.
(a) If at any time any Grantor shall take a security interest in any property of an Account Debtor or any other Person to secure payment and performance of an Account, such Grantor shall promptly assign such security interest to the Collateral Agent. 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.
(b) To the extent that any Grantor is a beneficiary under any written letter of credit now or hereafter issued in favor of such Grantor having a face amount in excess of $1,000,000, such Grantor shall deliver such letter of credit to the Collateral Agent. The Collateral Agent shall from time to time, at the request and expense of such Grantor, promptly make such arrangements with such Grantor as are in the Collateral Agent’s reasonable judgment necessary and appropriate so that such Grantor may make any drawing to which such Grantor is entitled under such letter of credit, without impairment of the Collateral Agent’s perfected security interest in such Grantor’s rights to proceeds of such letter of credit or in the actual proceeds of such drawing. At the Collateral Agent’s request, such Grantor shall, for any such letter of credit now or hereafter issued in favor of such Grantor as beneficiary, execute and deliver to the issuer and any confirmer of such letter of credit an assignment of proceeds form, in favor of the Collateral Agent and reasonably satisfactory to the Collateral Agent and such issuer or (as the case may be) such confirmer, requiring, after the occurrence of an Event of Default, the proceeds of any drawing under such letter of credit to be paid directly to the Collateral Agent.
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Credit Agreement) and Eligible Letter of Credit Inventory (as defined in the ABL Credit Agreement), each Grantor shall remain at all times in possession of the Collateral and/or the Xxxxxxxx Collateral, owned by it. The Grantors shall not permit any expiration, termination, modification, amendment or waiver of any Intercompany License that would reasonably likely materially impair or restrict the ability of the Collateral Agent to utilize the Proprietary Marks in exercising the Agent’s Rights and Remedies in connection with any Liquidation.
(a) (i) Each of the Grantors shall maintain insurance with financially sound and reputable insurers (or, to the extent consistent with business practices in effect on the date hereof, a program of self-insurance) on such of its property and in at least such amounts and against at least such risks as is consistent with business practices in effect on the date hereof or as otherwise determined by the Officers of the Grantors acting reasonably in their business judgment, including public liability insurance against claims for personal injury or death occurring upon, in or about or in connection with the use of any properties owned, occupied or controlled by it; (ii) maintain such other insurance as may be required by law; and (iii) furnish to the Collateral Agent, upon written request, full information as to the insurance carried.
(b) Subject to the terms of the Intercreditor Agreements, each of the Grantors shall maintain fire and extended coverage policies with respect to any Collateral endorsed or otherwise amended to include (i) a lenders’ loss payable clause (regarding personal property), in form and substance reasonably satisfactory to the Collateral Agent, which endorsements or amendments shall provide that the insurer shall pay all proceeds otherwise payable to the Grantors under the policies directly to the Collateral Agent, (ii) a provision to the effect that none of the Grantors, the Secured Parties or any other Affiliate of a Grantor shall be a co-insurer (the foregoing not being deemed to limit the amount of self-insured retention or deductibles under such policies, which self-insured retention or deductibles shall be consistent with business practices in effect on the date hereof or as otherwise determined by the Officers of the Grantors acting reasonably in their business judgment), and (iii) such other provisions as the Collateral Agent may reasonably require from time to time to protect the interests of the Secured Parties. Subject to the terms of the Intercreditor Agreements (i) commercial general liability policies shall be endorsed to name the Collateral Agent as an additional insured and (ii) business interruption policies shall name the Collateral Agent as a loss payee and shall be endorsed or amended to include (x) a provision that, during the continuance of a Cash Dominion Event (as defined in the ABL Credit Agreement whether or not the ABL Credit Agreement is in effect), the insurer shall pay all proceeds otherwise payable to the Grantors under such policies directly to the Collateral
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Agent, (y) a provision to the effect that none of the Grantors, Secured Parties (in their capacity as such) or any other Affiliate of a Grantor shall be a co-insurer and (z) such other provisions to the endorsement as the Collateral Agent may reasonably require from time to time to protect the interests of the Secured Parties. Each such casualty or liability policy referred to in this Section 4.9(b) shall also provide that it shall not be canceled, modified in any manner than would cause this Section 4.9(b) to be violated, or not renewed (i) by reason of nonpayment of premium except upon no less than thirty (30) days’ prior written notice thereof by the insurer to the Collateral Agent (giving the Collateral Agent the right to cure defaults in the payment of premiums) or (ii) for any other reason except upon not less than thirty (30) days’ prior written notice thereof by the insurer to the Collateral Agent. The Issuer shall deliver to the Collateral Agent, prior to the cancellation, modification or non-renewal of any such policy of insurance, a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Collateral Agent, including an insurance binder) together with evidence satisfactory to the Collateral Agent of payment of the premium therefor.
(c) Each Grantor hereby irrevocably makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as such Grantor’s true and lawful agent and attorney-in-fact, exercisable only after the occurrence and during the continuance of an Event of Default, for the purpose of making, settling and adjusting claims in respect of Collateral and the Xxxxxxxx Collateral under policies of insurance, endorsing the name of such Grantor 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 with respect thereto. In the event that any Grantor 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 Grantors hereunder or any Default or 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 reasonably advisable. All sums reasonably disbursed by the Collateral Agent in connection with this Section 4.9, including reasonable attorneys’ fees, court costs, out-of-pocket expenses and other charges relating thereto, shall be payable, upon demand, by the Grantors to the Collateral Agent and shall be additional Secured Obligations secured hereby.
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ARTICLE V.
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collect or otherwise realize on all or any of the Collateral or the Xxxxxxxx Collateral to enforce any rights in respect of any Collateral and/or any Xxxxxxxx Collateral; (x) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral and/or any Xxxxxxxx Collateral; (xi) to take all such action as may be reasonably necessary to obtain the payment of any letter of credit and/or banker’s acceptance of which any Grantor is a beneficiary; (xii) to repair, manufacture, assemble, complete, package, deliver, alter or supply goods, if any, necessary to fulfill in whole or in part the purchase order of any customer of any Grantor; (xiii) to use, license or transfer any or all General Intangibles of any Grantor; and (xiv) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral and/or any Xxxxxxxx Collateral, and to do all other acts and things reasonably necessary to carry out the purposes of this Agreement, as fully and completely as though the Collateral Agent was the absolute owner of the Collateral and/or the Xxxxxxxx Collateral for all purposes; provided, however, that nothing herein contained shall be construed as requiring or obligating the Collateral Agent or any other Secured Party to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent or any other Secured Party, or to present or file any claim or notice. It is understood and agreed that the appointment of the Collateral Agent as the agent and attorney-in-fact of the Grantors for the purposes set forth above is coupled with an interest and is irrevocable. The appointment of the Collateral Agent as the agent and attorney-in-fact of the Grantors for the purposes set forth above shall terminate when the principal of and interest on the Notes and all fees and other Secured Obligations (other than contingent indemnity obligations with respect to then unasserted claims) shall have been paid in full.
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ARTICLE VI.
(a) With respect to any Collateral and/or any Xxxxxxxx Collateral consisting of Accounts, General Intangibles (including Payment Intangibles and Intellectual Property), Letter-of-Credit Rights, Instruments, Chattel Paper, Documents, and Investment Property, the Collateral Agent may collect the Collateral and/or the Xxxxxxxx Collateral with or without the taking of possession of any of the Collateral and/or the Xxxxxxxx Collateral.
(b) With respect to any Collateral and/or any Xxxxxxxx Collateral consisting of Accounts, the Collateral Agent may (i) demand, collect and receive any amounts relating thereto, as the Collateral Agent may determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Accounts and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Collateral Agent may reasonably deem appropriate; (iv) without limiting the rights of the Collateral Agent set forth in Section 5.2 hereof, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Accounts or securing or relating to such Accounts, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Accounts or the goods or services which have given rise thereto, as fully and completely as though the Collateral Agent was the absolute owner thereof for all purposes.
(c) With respect to any Collateral consisting of Investment Property, the Collateral Agent may (i) exercise all rights of any Grantor with respect thereto, including without limitation, the right to exercise all voting and corporate rights at any meeting of the shareholders of the issuer of any Investment Property and to exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to any Investment Property as if the Collateral Agent was the absolute owner thereof, including the right to exchange, at its discretion, any and all of any Investment Property upon the merger, consolidation, reorganization, recapitalization or other readjustment of the issuer thereof, all without liability except to account for property actually received as provided in Section 5.3 hereof; (ii) transfer such Collateral at any time to
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itself, or to its nominee, and receive the income thereon and hold the same as Collateral hereunder or apply it to the Secured Obligations; and (iii) demand, xxx for, collect or make any compromise or settlement it deems desirable. The Grantors recognize that (a) the Collateral Agent may be unable to effect a public sale of all or a part of the Investment Property by reason of certain prohibitions contained in the Securities Act of 1933, 15 U.S.C. § 77, (as amended and in effect, the “Securities Act”) or the securities laws of various states (the “Blue Sky Laws”), but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire the Investment Property for their own account, for investment and not with a view to the distribution or resale thereof, (b) that private sales so made may be at prices and upon other terms less favorable to the seller than if the Investment Property were sold at public sales, (c) that neither the Collateral Agent nor any Secured Party has any obligation to delay sale of any of the Investment Property for the period of time necessary to permit the Investment Property to be registered for public sale under the Securities Act or the Blue Sky Laws, and (d) that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. Notwithstanding anything herein to the contrary, no Grantor shall be required to register, or cause the registration of, any Investment Property under the Securities Act or any or Blue Sky Laws.
(d) With respect to any Collateral consisting of Inventory, Goods, and Equipment, the Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.
(e) With respect to any Proprietary Marks, the Collateral Agent may exercise all of the rights granted to the Grantors under the Intercompany Licenses (for the limited purpose of allowing the Collateral Agent to utilize the Proprietary Marks in exercising the Agent’s Rights and Remedies in connection with any Liquidation of any Grantor’s Inventory or other Collateral).
(f) With or without legal process and with or without prior notice or demand for performance, the Collateral Agent may enter upon, occupy, and use any premises owned or occupied by each Grantor, and may exclude the Grantors from such premises or portion thereof as may have been so entered upon, occupied, or used by the Collateral Agent to the extent the Collateral Agent deems such exclusion reasonably necessary to preserve and protect the Collateral and/or the Xxxxxxxx Collateral. The Collateral Agent
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shall not be required to remove any of the Collateral from any such premises upon the Collateral Agent’s taking possession thereof, and may render any Collateral and/or Xxxxxxxx Collateral unusable to the Grantors. In no event shall the Collateral Agent be liable to any Grantor for use or occupancy by the Collateral Agent of any premises pursuant to this Section 6.1, nor for any royalties or any other amounts due under, or any other obligations in respect of, the Intercompany Licenses, nor for any charge (such as wages for the Grantors’ employees and utilities) incurred in connection with the Collateral Agent’s exercise of the Agents’ Rights and Remedies.
(g) The Collateral Agent may require any Grantor to assemble the Collateral and make it available to the Collateral Agent at the Grantor’s sole risk and expense at a place or places which are reasonably convenient to both the Collateral Agent and such Grantor.
(h) Each Grantor agrees that the Collateral Agent shall have the right, subject to Applicable Law, to sell or otherwise dispose of all or any part of the Collateral and/or the Xxxxxxxx Collateral, at public or private sale, for cash, upon credit or for future delivery as the Collateral Agent shall deem appropriate. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.
(i) Unless the Collateral and/or Xxxxxxxx Collateral is perishable or threatens to decline speedily in value, or is of a type customarily sold on a recognized market (in which event the Collateral Agent shall provide the Grantors such notice as may be practicable under the circumstances), the Collateral Agent shall give the Grantors at least ten (10) days’ prior written notice, by authenticated record, of the date, time and place of any proposed public sale, and of the date after which any private sale or other disposition of the Collateral and/or Xxxxxxxx Collateral may be made. Each Grantor agrees that such written notice shall satisfy all requirements for notice to that Grantor which are imposed under the UCC or other Applicable Law with respect to the exercise of the Agent’s Rights and Remedies upon default. The Collateral Agent shall not be obligated to make any sale or other disposition of any Collateral and/or Xxxxxxxx Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral and/or such Xxxxxxxx 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.
(j) Any 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 of such sale. At any sale or other disposition, the Collateral and/or the Xxxxxxxx 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. If any of the Collateral and/or the Xxxxxxxx Collateral is sold, leased, or otherwise disposed of by the Collateral Agent on credit, the Secured Obligations shall not be deemed to have been reduced as a result thereof unless and until payment is received thereon by the Collateral Agent.
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(k) At any public (or, to the extent permitted by Applicable Law, private) sale made pursuant to this Section 6.1, the Collateral Agent or any other Secured Party may bid for or purchase, free (to the extent permitted by Applicable Law) from any right of redemption, stay, valuation or appraisal on the part of any Grantor, the Collateral, the Xxxxxxxx Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Collateral Agent or such other Secured Party from any Grantor on account of the Secured Obligations as a credit against the purchase price, and the Collateral Agent or such other Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor.
(l) For purposes hereof, a written agreement to purchase the Collateral, the Xxxxxxxx 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 Grantor shall be entitled to the return of the Collateral, the Xxxxxxxx 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 Secured Obligations paid in full.
(m) 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 upon the Collateral and/or the Xxxxxxxx Collateral and to sell the Collateral and/or the Xxxxxxxx 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.
(n) To the extent permitted by Applicable Law, each Grantor hereby waives all rights of redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
(o) In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting the Issuer or the creditors or property of the Issuer, the Collateral Agent and Secured Parties, to the extent permitted by Applicable Law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of the Collateral Agent and the other Secured Parties allowed in such proceedings for the entire amount of the Secured Obligations at the date of the institution of such proceedings and for any additional portion of the Secured Obligations accruing after such date.
Notwithstanding the foregoing to the contrary, prior to the occurrence of an Event of Default pursuant to Section 6.01 of the Indenture, the Agent’s exercise of any Rights and Remedies in respect of the Xxxxxxxx Collateral shall be subject to the rights of any third party under any international license and/or franchise agreements as in effect on such date.
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Subject to the right of the Holders of a majority in aggregate principal amount of the then outstanding Notes to direct the exercise of the Agent’s Rights and Remedies upon the occurrence of an Event of Default and subject to the terms of the Intercreditor Agreements, 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 or other disposition of the Collateral and/or the Xxxxxxxx Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale or other disposition shall be a sufficient discharge to the purchaser or purchasers of the Collateral and/or the Xxxxxxxx Collateral so sold or otherwise disposed of 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.
ARTICLE VII.
Perfection of Security Interest
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with any agreements establishing control to be in form and substance reasonably satisfactory to the Collateral Agent, and (c) otherwise to insure the continued perfection of the Collateral Agent’s security interest in any of the Collateral and/or the Xxxxxxxx Collateral with the priority described in Section 3.2 and of the preservation of its rights therein.
ARTICLE VIII.
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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 Secured Obligations, or any other amendment or waiver of or any consent to any departure from the Indenture, any other Security 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 the Guarantee or any other guarantee, securing or guaranteeing all or any of the Secured Obligations, or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor in respect of the Secured Obligations or this Agreement (other than circumstances under which the principal of and interest on each Note and all fees and other Secured Obligations (other than contingent indemnity obligations with respect to then unasserted claims) shall have been paid in full.
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SECTION 8.6. Fees and Expenses; Indemnification.
(a) Without limiting any of their obligations under the Indenture or the other Security Documents, and without duplication of any fees, expenses or indemnification provided for under the Indenture and the other Security Documents, the Grantors jointly and severally shall pay all reasonable out-of-pocket expenses incurred by the Collateral Agent, including the reasonable fees, charges and disbursements of any counsel and outside consultants for the Collateral Agent, within fifteen (15) Business Days after receipt of an invoice therefore setting forth such expenses in reasonable detail, in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from or other realization upon any of the Collateral and/or the Xxxxxxxx Collateral, (iii) the exercise, enforcement or protection of any of the Agent’s Rights and Remedies hereunder or (iv) the failure of any Grantor to perform or observe any of the provisions hereof; provided that in the event the Grantors have a bona fide dispute with any such expenses, payment of such disputed amounts shall not be required until the earlier of the date such dispute is resolved to the reasonable satisfaction of the Grantors or thirty (30) days after receipt of any such invoice (and any such disputed amount which is so paid shall be subject to a reservation of the Grantors’ rights with respect thereto).
(b) Without limiting any of their indemnification obligations under the Indenture or the other Security Documents, and without duplication of any fees, expenses or indemnification provided for under the Indenture and the other Security Documents, each Grantor, shall, jointly and severally, indemnify the Collateral Agent and each of its Subsidiaries and Affiliates, and each of the respective stockholders, directors, officers, employees, agents, attorneys, and advisors of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all damages, actual out-of-pocket losses, claims, actions, causes of action, settlement payments, obligations, liabilities and related expenses, including the reasonable fees, charges and disbursements of one counsel for the Collateral Agent, incurred, suffered, sustained or required to be paid by, or asserted against, any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement, the Indenture or any other Security Document, the performance by any Grantor of its obligations under this Agreement, the Indenture or any other Security Document, or the consummation of the transactions contemplated by the Indenture and the Security Documents or any other transactions contemplated hereby, or (ii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing or to the Collateral, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided, however, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (w) are determined by a court of competent jurisdiction or another independent tribunal having jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of any Agent or such Indemnitee or any Affiliate of such Indemnitee (or any officer, director, employee, advisor or agent of such Indemnitee or any such Indemnitee’s Affiliates), (x) are relating to disputes among Indemnitees, or (y) are determined by a court of competent jurisdiction or another independent tribunal having jurisdiction to have resulted from a breach by such Indemnitee of its obligations to a Grantor. No party hereto shall be liable to any other party hereto for any indirect, consequential, special or punitive damages except, in the case of any Grantor, to the extent such Grantor is otherwise required to provide indemnification pursuant to this Section 8.6(b). In connection with any indemnified claim hereunder, the Indemnitee shall be entitled to select its own counsel and the Grantors shall promptly pay the reasonable fees and expenses of such counsel.
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(c) Any such amounts payable as provided hereunder shall be additional Secured Obligations secured hereby and by the other Security Documents. The provisions of this Section 8.6 shall remain operative and in full force and effect regardless of the termination of this Agreement, Indenture or any other Security Document, the consummation of the transactions contemplated hereby or thereby, the repayment of the Notes, the payment of all fees and other Secured Obligations, the invalidity or unenforceability of any term or provision of this Agreement, the Indenture or any other Security Document, or any investigation made by or on behalf of any Secured Party. All amounts due under this Section 8.6 shall be payable promptly after written demand therefor.
SECTION 8.7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 8.8. Waivers; Amendment.
(a) The rights, remedies, powers, privileges, and discretions of the Collateral Agent hereunder (herein, the “Agent’s Rights and Remedies”) shall be cumulative and not exclusive of any rights or remedies which it would otherwise have. No delay or omission by the Collateral Agent in exercising or enforcing any of the Agent’s Rights and Remedies shall operate as, or constitute, a waiver thereof. No waiver by the Collateral Agent of any Event of Default or of any Default under any other agreement shall operate as a waiver of any other Event of Default or other Default hereunder or under any other agreement. No single or partial exercise of any of the Agent’s Rights or Remedies, and no express or implied agreement or transaction of whatever nature entered into between the Collateral Agent and any Person, at any time, shall preclude the other or further exercise of the Agent’s Rights and Remedies. No waiver by the Collateral Agent of any of the Agent’s Rights and Remedies on any one occasion shall be deemed a waiver on any subsequent occasion, nor shall it be deemed a continuing waiver. Subject to the right of the Collateral Agent acting at the direction of Holders of a majority in aggregate principal amount of the then outstanding Notes to direct the exercise of the Agent’s Rights and Remedies upon the occurrence and during the continuance of an Event of Default, the Agent’s Rights and Remedies may be exercised at such time or times and in such order of preference as the Collateral Agent may determine. The Agent’s Rights and Remedies may be exercised without resort or regard to any other source of satisfaction of the Secured Obligations. No waiver of any provisions of this Agreement, the Indenture or any other Security Document or consent to any departure by any Grantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Grantor in any case shall entitle such Grantor or any other Grantor 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 a written agreement entered into between the Collateral Agent and the Grantor or Grantors with respect to whom such waiver, amendment or modification is to apply, subject to any consent required in accordance with Article 9 of the Indenture.
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SECTION 8.13. Jurisdiction; Consent to Service of Process. The Grantors agree that any suit for the enforcement of this Agreement, the Indenture or any other Security Document may be brought in the courts of the State of New York sitting in the Borough of Manhattan or any federal court sitting therein as the Collateral Agent may elect in its sole discretion and consent to the non-exclusive jurisdiction of such courts. The Grantors hereby waive any objection which they may now or hereafter have to the venue of any such suit or any such court or that such suit is brought in an inconvenient forum and 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 shall affect any right that the Collateral Agent may otherwise have to bring any action or proceeding relating to this Agreement against a Grantor or its properties in the courts of any jurisdiction. The Grantors agree that any action commenced by any Grantor asserting any claim or counterclaim arising
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under or in connection with this Agreement, Indenture or any other Security Document shall be brought solely in a court sitting in the Borough of Manhattan or any federal court sitting therein as the Collateral Agent may elect in its sole discretion and consent to the exclusive jurisdiction of such courts with respect to any such action. Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 8.1 of this Agreement. Nothing in this Agreement, Indenture or any other Security Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 8.14. Joinder to Security Agreement. As contemplated in the Indenture, additional Subsidiaries may from time to time become parties hereto and additional Grantors hereunder by execution and delivery of a Joinder to Security Agreement. Such Joinder to Security Agreement shall be effective upon delivery by such additional Grantor, without further action or consent or notice to any party hereto. Upon delivery of such Joinder to Security Agreement, all obligations of each Grantor hereunder shall be joint and several with the obligations of each other Grantor hereunder.
SECTION 8.15. Termination; Release of Collateral.
(a) Any Lien upon any Collateral and/or Xxxxxxxx Collateral will be released automatically if the Collateral and/or Xxxxxxxx Collateral constitutes property being sold, transferred or disposed of in a sale, transfer or other disposition not prohibited under Section 4.11 of the Indenture upon receipt by the Collateral Agent of the Net Proceeds thereof to the extent required by the Indenture and in the other circumstances contemplated in Section 11.04 of the Indenture.
(b) Upon at least two (2) Business Days’ prior written request by the Issuer, the Collateral Agent shall execute such documents as may be necessary to evidence the release of the Liens upon any Collateral and/or any Xxxxxxxx Collateral described in Section 8.15(a) of this Agreement; provided, however, that (i) the Collateral Agent shall not be required to execute any such document on terms which, in its reasonable opinion, would, under Applicable Law, expose the Collateral Agent to liability or create any obligation or entail any adverse consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens (other than those expressly being released) upon (or obligations of any Grantor in respect of) all interests retained by any Grantor, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral and/or the Xxxxxxxx Collateral.
(c) Except for those provisions which expressly survive the termination thereof, this Agreement and the Security Interest granted herein shall terminate when the principal of and interest on each Note and other Secured Obligations (other than contingent indemnity obligations with respect to then unasserted claims) shall have been paid in full, at which time the Collateral Agent shall execute and deliver to the Grantors, at the Grantors’ expense, all UCC termination statements and similar documents that the Grantors shall reasonably request to evidence such termination; provided, however, that the Indenture, this Agreement, and the Security Interest granted herein shall be reinstated if at any time payment, or any part thereof, of any Secured Obligation is rescinded or must otherwise be restored by any Secured Party upon the bankruptcy or reorganization of the Issuer or other Grantor. Any execution and delivery of termination statements or documents pursuant to this Section 8.15 shall be without recourse to, or warranty by, the Collateral Agent or any other Secured Party.
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[SIGNATURE PAGES FOLLOW]
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GRANTORS: | ||||
TOYS “R” US-DELAWARE, INC., | ||||
as the Issuer and as a Grantor | ||||
By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Vice President-Treasurer | |||
XXXXXXXX, LLC, | ||||
as a Grantor | ||||
By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Vice President-Treasurer | |||
XXXXXXXX INTERNATIONAL, LLC, | ||||
as a Grantor | ||||
By: | Xxxxxxxx, LLC, its sole member | |||
By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Vice President-Treasurer |
XXXXXXXX HOLDINGS, LLC, | ||||
as a Grantor | ||||
By: | TOYS “R” US-DELAWARE, INC., | |||
its sole member | ||||
By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Vice President-Treasurer | |||
TRU-SVC, LLC, | ||||
as a Grantor | ||||
By: | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Manager | |||
TOYS ACQUISITION, LLC, | ||||
as a Grantor | ||||
By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Vice President-Treasurer | |||
TRU OF PUERTO RICO, INC., | ||||
as a Grantor | ||||
By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Vice President-Treasurer |
[Security Agreement]
COLLATERAL AGENT: | THE BANK OF NEW YORK MELLON | |||||||
By: | /s/ Xxxxxxx X. X’Xxxx | |||||||
Name: | Xxxxxxx X. X’Xxxx | |||||||
Title: | Senior Associate |
[Security Agreement]
Exhibit A
License Agreements
1. | License Agreement, dated as of January 23, 2004, by and between Xxxxxxxx, LLC (as successor in interest to Xxxxxxxx, Inc.), as Licensor, and Toys “R” Us-Delaware, Inc., as Licensee, as amended and in effect as of the date hereof. |
2. | License Agreement, dated as of January 23, 2004, by and between Xxxxxxxx, LLC (as successor in interest to Xxxxxxxx, Inc.), as Licensor, and Toys “R” Us-Delaware, Inc. (as successor by merger to Toys “R” Us-Mass., Inc., as Licensee. |
3. | License Agreement, dated as of January 23, 2004, by and between Xxxxxxxx, LLC (as successor in interest to Xxxxxxxx, Inc.), as Licensor, and Toys “R” Us-Delaware, Inc. (as successor by merger to Toys “R” Us-NY, LLC), as Licensee. |
4. | License Agreement, dated as of January 23, 2004, by and between Xxxxxxxx, LLC (as successor in interest to Xxxxxxxx, Inc.), as Licensor, and Toys “R” Us-Delaware, Inc. (as successor by merger to Toys “R” Us-Ohio, Inc.), as Licensee. |
5. | License Agreement, dated as of January 23, 2004, by and between Xxxxxxxx, LLC (as successor in interest to Xxxxxxxx, Inc.), as Licensor, and Toys “R” Us-Delaware, Inc. (as successor by merger to Toys “R” Us-Penn., Inc.), as Licensee. |
6. | License Agreement, dated as of January 23, 2004, by and between Xxxxxxxx, LLC (as successor in interest to Xxxxxxxx, Inc.), as Licensor, and Toys “R” Us-Delaware, Inc. (as successor by merger to Toys “R” Us-Texas LLC, as Licensee. |
7. | Second Amended and Restated License Agreement, dated as of January 7, 2002, among Xxxxxxxx, LLC (as successor in interest to Xxxxxxxx, Inc.) and Toys “R” Us (Canada) Ltd. Toys “R” Us (Canada) Ltee., as Licensors, and Toys “R” Us-Delaware, Inc. (as successor by merger to Xxxxxxx.xxx, LLC and Xxxxxxxxx.xxx, LLC), Xxxxxxxxxxx.xxx, LLC and Xxxxxxx.xxx, LLC, as Licensees. |
[Exhibit A to the Security Agreement]
Exhibit B
United States Proprietary Marks
• | Schedule 7 to the Perfection Certificate is incorporated herein by reference, to the extent applicable. |
[Exhibit B to the Security Agreement]
Schedule 3.2
UCC Filings
Item | Grantor | Filing Requirement | Filing Office | |||
1 | Toys “R” Us-Delaware, Inc. | UCC-1 financing statement | Secretary of State State of Delaware | |||
2 | TRU-SVC, LLC | UCC-1 Assignment | State Corporation Commission Commonwealth of Virginia | |||
3 | Toys Acquisition, LLC | UCC-1 financing statement | Secretary of State State of Delaware | |||
4 | TRU of Puerto Rico, Inc. | UCC-1 financing statement | State Department of Commonwealth of Puerto Rico | |||
5 | Xxxxxxxx Holdings, LLC | UCC-1 Assignment | Secretary of State State of Delaware | |||
6 | Xxxxxxxx, LLC | UCC-1 financing statement | Secretary of State State of Delaware | |||
7 | Xxxxxxxx International, LLC | UCC-1 financing statement | Secretary of State State of Delaware |
[Schedule 3.2 to the Security Agreement]
Schedule 3.4
Bailees, Warehousemen and Third Parties
Bailee/Warehouseman | Address | Grantors |
Inventory > $20.0 million | |||
California Cartage Co. | 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxxxx XX 00000 | Toy “R” Us-Delaware, Inc. | No | |||
California Cartage Co. | 0000X Xxxx Xxxxxxxxx Xxxxxx Xxxxxx, XX 00000 | Toy “R” Us-Delaware, Inc. | No | |||
Exel, Inc. | 0000 Xxxx Xxxx Xxxxxxxxx, XX 00000 | Toy “R” Us-Delaware, Inc. | Yes | |||
Exel, Inc. | 000 Xxx Xxxx, Xxxxxxx, XX 00000 | Toy “R” Us-Delaware, Inc. | No |
[Schedule 3.4 to the Security Agreement]
Schedule 3.7
Certain Commercial Tort Claims
None.
[Schedule 3.7 to the Security Agreement]