1
EXHIBIT 10.49
EXHIBIT C TO
CREDIT AGREEMENT
FORM OF TRADEMARK SECURITY AGREEMENT
TRADEMARK SECURITY AGREEMENT, dated as of February 11, 1998, made by
[XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc., a New York corporation] (the "Grantor"), in
favor of The Chase Manhattan Bank, a New York banking corporation ("Chase"), as
administrative agent (in such capacity, the "Administrative Agent") for the
banks and other financial institutions (collectively, the "Lenders";
individually, a "Lender") from time to time parties to the Credit Agreement,
dated as of February 12, 1998 (as amended, waived, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Grantor, Global
Decisions Group LLC, the Lenders, the Administrative Agent and Bank of America
National Trust and Savings Association, as Documentation Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower (as defined
therein) upon the terms and subject to the conditions set forth therein; and
WHEREAS, it is a condition to the obligation of the Lenders to make
their respective extensions of credit to the Borrower under the Credit Agreement
that the Grantor shall execute and deliver this Agreement to the Administrative
Agent for the ratable benefit of the Secured Parties (as defined below);
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower
thereunder, the Grantor hereby agrees with the Administrative Agent, for the
ratable benefit of the Secured Parties, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, capitalized
terms which are defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Trademark Security Agreement, as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"Code": the Uniform Commercial Code as from time to time in effect
in the State of New York.
"Collateral": as defined in Section 2 of this Agreement.
2
2
"Default": a "Default" as defined in the Credit Agreement.
"Event of Default": an "Event of Default" as defined in the Credit
Agreement.
"General Intangibles": as defined in Section 9-106 of the Code,
including, without limitation, all Trademarks now or hereafter owned by
the Grantor to the extent such Trademarks would be included in General
Intangibles under the Code.
"Loan Documents": the collective reference to the "Loan Documents"
as defined in the Credit Agreement.
"Loans": the collective reference to the "Loans" as defined in the
Credit Agreement.
"Obligations": the Obligations (as defined in the Guarantee and
Collateral Agreement) of the Grantor (without duplication).
"Proceeds": as defined in Section 9-306(1) of the Code.
"Revolving Credit Commitments": the collective reference to the
"Revolving Credit Commitments" as defined in the Credit Agreement.
"Secured Parties": the collective reference to the Administrative
Agent, the Lenders (including, without limitation, the Issuing Lender and
the Swing Line Lender), any Affiliate of any Lender which has entered into
any Permitted Hedging Arrangement with the Parent or any of its
Subsidiaries, and their respective successors and assigns.
"Trademark Licenses": all United States written license agreements
of the Grantor with any Person who is not an Affiliate or Subsidiary of
the Grantor in connection with any of the Trademarks or such other
Person's names or trademarks, whether the Grantor is a licensor or a
licensee under any such agreement, including, without limitation, the
license agreements listed on Schedule I hereto, subject, in each case, to
the terms of such license agreements.
"Trademarks": all of the Grantor's right, title and interest in and
to all United States trademarks, service marks, trade names, trade dress
or other indicia of trade origin or business identifiers, United States
trademark and service xxxx registrations, and United States applications
for trademark or service xxxx registrations (except for "intent to use"
applications for trademark or service xxxx registrations filed pursuant to
Section 1(b) of the Xxxxxx Act, 15 U.S.C. Section 1051, unless and until
an Amendment to Allege Use or a Statement of Use under Sections 1(c) and
1(d) of said Act has been filed), and any renewals thereof, including,
without limitation, each registration and application identified in
Schedule I hereto, and including, without limitation, (a) the right to xxx
or otherwise recover for any and all past, present and future
infringements and misappropriations thereof, (b) all income, royalties,
damages and other payments now and hereafter due and/or payable with
respect thereto (including, without limitation, payments under all
licenses entered into in connection therewith, and damages and payments
for past or future infringements thereof), and (c) all other rights
corresponding thereto in the United States and all other rights of any
kind whatsoever of the Grantor accruing thereunder or pertaining thereto,
together in each case with the goodwill of the business connected with the
use of, and symbolized by, each such trademark, service
3
3
xxxx, trade name, trade dress or other indicia of trade origin or business
identifiers (Trademarks and Trademark Licenses being, collectively, the
"Trademark Collateral").
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section and
paragraph references are to this Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to the Grantor, shall refer to the
Grantor's Collateral or the relevant part thereof.
2. Grant of Security Interest. The Grantor hereby grants, subject to
existing licenses granted by the Grantor in the ordinary course of business with
respect to the Collateral (as hereinafter defined), to the Administrative Agent
for the ratable benefit of the Secured Parties a security interest in all of the
following property now owned or at any time hereafter acquired by the Grantor or
in which the Grantor now has or at any time in the future may acquire any right,
title or interest (collectively, the "Collateral"), as collateral security for
the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations of the Grantor:
(i) all Trademarks;
(ii) all Trademark Licenses;
(iii) all General Intangibles connected with the use of or
symbolized by the Trademarks; and
(iv) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing and all collateral security and guarantees
given by any Person with respect to any of the foregoing;
provided, that the foregoing grant of a security interest with respect to
General Intangibles and Trademark Licenses shall not include a security interest
in, and the Collateral shall not include, any Trademark License with or issued
by Persons other than a Subsidiary of the Grantor that would otherwise be
included in the Collateral to the extent that the grant by the Grantor of such
security interest is prohibited by the terms and provisions of the written
agreement or document or instrument creating or evidencing such license or
permit or Trademark License, or gives the other party thereto the right to
terminate such Trademark License in the event of the grant of a security
interest with respect thereto. All references in this Agreement to any of the
property described in clauses (i) through (iv) of the preceding sentence, or to
any Proceeds thereof, shall be deemed to be references to such property or
Proceeds to the extent such property or Proceeds constitutes Collateral.
3. Representations and Warranties. The Grantor hereby represents and
warrants to the Administrative Agent on behalf of the Secured Parties that:
(a) Power and Authority. As of the date hereof, the Grantor has the
LLC or
4
4
corporate power and authority, and the legal right, to make, deliver and
perform its obligations under, and to grant the security interest in the
Trademark Collateral to the extent provided in, and pursuant to, this
Agreement and has taken all necessary corporate action to authorize the
execution, delivery and performance of, and grant of the security interest
in the Trademark Collateral to the extent provided in, and pursuant to,
this Agreement.
(b) Title; No Other Liens. As of the date hereof, except for the
Liens granted to the Administrative Agent, for the benefit of the Secured
Parties, pursuant to this Agreement and the other Liens permitted to exist
on the Collateral pursuant to the Loan Documents (including, without
limitation, any Liens permitted to exist on the Collateral pursuant to
subsection 8.3 of the Credit Agreement), the Grantor is (or, in the case
of after-acquired Collateral, will be) the sole, legal and beneficial
owner of the entire right, title and interest in and to the material
Trademarks set forth on Schedule I hereto free and clear of any and all
Liens. As of the date hereof, except as set forth on Schedule II hereto,
no security agreement, financing statement or other public notice similar
in effect with respect to all or any part of the Collateral is on file or
of record in any public office (including, without limitation, the United
States Patent and Trademark Office), except such as may have been filed in
favor of the Administrative Agent, for the benefit of the Secured Parties,
pursuant to this Agreement or in respect of such Liens as may be permitted
pursuant to the Loan Documents (including, without limitation, any Liens
permitted to exist on the Collateral pursuant to subsection 8.3 of the
Credit Agreement).
(c) Perfected First Priority Liens. (i) As of the date hereof, this
Agreement is effective to create, as collateral security for the
Obligations, valid and enforceable Liens on the Collateral in favor of the
Administrative Agent, for the benefit of the Secured Parties, except as
enforceability may be affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(ii) As of the date hereof, except with respect to Liens upon
Trademarks and Trademark Licenses, which Liens, to the extent not
otherwise perfected by the filing of financing statements under the Code
in accordance herewith, would, in the case of Trademarks listed in
Schedule I hereto, or may, in the case of Trademark Licenses listed in
Schedule I hereto, be perfected upon the filing, acceptance and
recordation thereof in the United States Patent and Trademark Office, upon
filing of the financing statements delivered to the Administrative Agent
by the Grantor on the Effective Date in the jurisdictions listed on
Schedule 5.15 to the Credit Agreement (which financing statements are in
proper form for filing in such jurisdictions) (and the recording of this
Agreement in the United States Patent and Trademark Office, and the making
of filings after the Effective Date in any other jurisdiction in the
United States as may be necessary under any Requirement of Law) the Liens
created pursuant to this Agreement will constitute valid and perfected
Liens on the Collateral in the United States in favor of the
Administrative Agent for the benefit of the Secured Parties, which Liens
will be prior to all other Liens of all other Persons with respect to the
Collateral, except for Liens permitted pursuant to the Loan Documents
(including, without limitation, those permitted to exist pursuant to
subsection 8.3 of the Credit Agreement), and which Liens are enforceable
as such against all creditors of and purchasers (except to the extent that
the recording of an assignment or other transfer of title to the
Administrative Agent in the United States Patent and Trademark Office may
be necessary for such enforceability)
5
5
from the Grantor, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at
law) or by an implied covenant of good faith and fair dealing.
(d) Consents. No consent of any party (other than the Grantor) to
any material Trademark License constituting Collateral is required, or
purports to be required, to be obtained by or on behalf of the Grantor in
connection with the execution, delivery and performance of this Agreement
that has not been obtained. Each Trademark License constituting Collateral
is in full force and effect and constitutes a valid and legally
enforceable obligation of the Grantor and (to the knowledge of the
Grantor) each other party thereto except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditor's rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or at law) or by an implied covenant of good faith and fair dealing
and except to the extent the failure of any such Trademark License
constituting Collateral to be in full force and effect or valid or legally
enforceable would not be reasonably expected, in the aggregate, to have a
material adverse effect on the value of the Collateral (as such term is
defined in the Credit Agreement). No consent or authorization of, filing
with or other act by or in respect of any Governmental Authority is
required in connection with the execution, delivery, performance, validity
or enforceability of any of the Trademark Licenses constituting Collateral
by any party thereto other than those which have been duly obtained, made
or performed and are in full force and effect and those the failure of
which to make or obtain would not be reasonably expected, in the
aggregate, to have a material adverse effect on the value of the
Collateral (as such term is defined in the Credit Agreement). Neither the
Grantor nor (to the knowledge of the Grantor) any other party to any
Trademark License constituting Collateral is in default in the performance
or observance of any of the terms thereof, except for such defaults as
would not reasonably be expected, in the aggregate, to have a material
adverse effect on the value of the Collateral (as such term is defined in
the Credit Agreement). Except for rights reserved in favor of the United
States government, as required under law, the right, title and interest of
the Grantor in, to and under each Trademark License constituting
Collateral are not subject to any defense, offset, counterclaim or claim
which would be reasonably expected, either individually or in the
aggregate, to have a material adverse effect on the value of the
Collateral (as such term is defined in the Credit Agreement).
(e) Schedule I is Complete; All Filings Have Been Made. Set forth in
Schedule I is a complete and accurate list of all material Trademarks
owned by the Grantor as of the date hereof. As of the date hereof, the
Grantor will have made all necessary filings to protect and maintain its
interest in the Trademarks set forth in Schedule I, including, without
limitation, all necessary filings and payments of all maintenance fees, in
the United States Patent and Trademark Office to the extent such
Trademarks are material to the Grantor's business. Set forth in Schedule I
is a complete and accurate list of all of the material Trademark Licenses
owned by the Grantor as of the date hereof.
(f) The Trademarks and Trademark Licenses are Subsisting and Not
Adjudged Invalid. As of the date hereof, each trademark registration and
trademark application of the Grantor set forth in Schedule I is subsisting
as of the date hereof, and has not been adjudged invalid, unregisterable
or unenforceable, in whole or in part, and, to the best of
6
6
the Grantor's knowledge, is valid, registrable and enforceable. As of the
date hereof, each of the Trademark Licenses set forth in Schedule I is
validly subsisting and has not been adjudged invalid or unenforceable, in
whole or in part, and, to the best of the Grantor's knowledge, is valid
and enforceable. As of the date hereof, the Grantor has notified the
Administrative Agent in writing of all uses of any item of Trademark
Collateral material to the Grantor's business of which the Grantor is
aware which could reasonably be expected to lead to such item becoming
invalid or unenforceable, including unauthorized uses by third parties and
uses which were not supported by the goodwill of the business connected
with such Collateral.
(g) No Previous Assignments or Releases. As of the date hereof, the
Grantor has not made an agreement constituting a present or future
assignment, sale, transfer or encumbrance of any of the Collateral (except
for any such assignment, sale, transfer or encumbrance terminated on or
prior to the Effective Date or permitted under the Loan Documents). Except
as permitted by the Loan Documents or as required by law, the Grantor has
not granted any license, shop right, release, covenant not to xxx, or
non-assertion assurance to any Person with respect to any material part of
the Collateral which would have a Material Adverse Effect.
(h) Proper Statutory Notice. The Grantor has marked its products
with the trademark registration symbol (R) or the common law trademark
symbol (TM), as the case may be, to the extent that it is reasonably and
commercially practicable.
(i) No Knowledge of Claims Likely to Arise. Except for the Trademark
Licenses listed in Schedule I hereto, the Grantor has no knowledge of the
existence of any right or any claim (other than as permitted by this
Agreement or the Loan Documents) that is likely to be made under or
against any item of Collateral contained on Schedule I which would have a
Material Adverse Effect.
(j) No Knowledge of Existing or Threatened Claims. No claim has been
made and is continuing or, to the Grantor's knowledge, threatened that the
use by the Grantor of any item of Collateral is invalid or unenforceable
or that the use by the Grantor of any Collateral does or may violate the
rights of any Person, which would have a Material Adverse Effect. To the
Grantor's knowledge, there is currently no infringement or unauthorized
use of any item of Collateral contained on Schedule I hereto which would
have a Material Adverse Effect.
The Grantor agrees that the foregoing representations and warranties
shall be deemed to have been made by the Grantor on and as of each date on which
an extension of credit is made by the Lenders to the Borrower under the Credit
Agreement, in each case as though made by the Grantor on and as of each such
date (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date).
4. Covenants. The Grantor covenants and agrees with the
Administrative Agent and the other Secured Parties that, from and after the date
of this Agreement until the payment in full of the Loans, the Reimbursement
Obligations and to the extent then due and owing, all other Obligations, the
termination of the Revolving Credit Commitments and the expiration, termination
or return to the Issuing Lender of any Letters of Credit:
(a) Further Documentation; Pledge of Instruments and Chattel Paper.
At any time and from time to time, upon the written request of the
Administrative Agent or the
7
7
Grantor, as the case may be, and at the sole expense of the Grantor, the
Grantor or the Administrative Agent, as the case may be, will promptly and
duly execute and deliver such further instruments and documents and take
such further action as the Administrative Agent or the Grantor, as the
case may be, may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and
powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the Uniform Commercial Code in
effect in any jurisdiction with respect to the Liens created hereby. The
Grantor also hereby authorizes the Administrative Agent to file any such
financing or continuation statement without the signature of the Grantor
to the extent permitted by applicable law. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction. The Administrative Agent agrees
to notify the Grantor and the Grantor agrees to notify the Administrative
Agent of any financing or continuation statement filed by it pursuant to
this Section 4(a), provided that any failure to give any notice shall not
affect the validity or effectiveness of any filing.
(b) Indemnification and Expenses. The Grantor agrees to pay, and to
save the Administrative Agent, the other Secured Parties and their
respective agents, officers, directors and successors harmless from, any
and all liabilities and reasonable costs and expenses (including, without
limitation, reasonable legal fees and expenses) (i) with respect to, or
resulting from, any delay by the Grantor in complying with any material
Requirement of Law applicable to any of the Collateral, or (ii) in
connection with any of the transactions contemplated by this Agreement,
provided that such indemnity shall not, as to the Administrative Agent,
any of the other Secured Parties or any of their respective agents,
officers, directors and successors, be available to the extent that such
liabilities, costs and expenses resulted from the gross negligence or
willful misconduct of any of the same. In any suit, proceeding or action
brought by the Administrative Agent or any other Secured Party under any
of the Collateral for any sum owing thereunder, or to enforce this
Agreement, the Grantor will save, indemnify and keep the Administrative
Agent, such Secured Party and their respective agents, officers, directors
and successors harmless from and against all expense, loss or damage
suffered by reason of any defense or counterclaim raised in any such suit,
proceeding or action, except to the extent such expense, loss or damage
resulted from the gross negligence or willful misconduct of any of the
same.
(c) Maintenance of Records. The Grantor will keep and maintain at
its own cost and expense reasonably satisfactory and complete records of
the Collateral, and shall xxxx such records to evidence this Agreement and
the Liens and the security interests created hereby. For the
Administrative Agent's and the other Secured Parties' further security,
the Administrative Agent, for the benefit of the Secured Parties, shall
have a security interest in all of the Grantor's books and records
pertaining to the Collateral.
(d) Right of Inspection. Upon reasonable written advance notice to
the Grantor and at reasonable intervals, or at any time and from time to
time after the occurrence and during the continuation of an Event of
Default, the Administrative Agent shall have reasonable access during
normal business hours to all the books, correspondence and records of the
Grantor relating to the Collateral, and the Administrative Agent and its
representatives may examine the same, and to the extent reasonable take
extracts therefrom and make photocopies thereof, and the Grantor agrees to
render to the Administrative Agent, at the Grantor's reasonable cost and
expense, such clerical and other assistance as may be reasonably requested
with regard thereto.
8
8
(e) Compliance with Laws, etc. The Grantor will comply in all
material respects with all material Requirements of Law applicable to the
Collateral or any part thereof, except to the extent that the failure to
so comply would not be reasonably expected to materially adversely affect
in the aggregate the Administrative Agent's or the other Secured Parties'
rights hereunder, the priority of their Liens on the Collateral or the
value of the Collateral.
(f) Further Identification of Collateral. The Grantor will furnish
to the Administrative Agent from time to time such statements and
schedules further identifying and describing the Collateral, and such
other reports in connection with the Collateral, as the Administrative
Agent may reasonably request, all in reasonable detail.
(g) Security Interest in Any Newly Acquired Collateral. The Grantor
agrees that, should it obtain an ownership interest in any material
Trademark or enter into a Trademark License which is not now a part of the
Collateral, (i) the provisions of Section 2 shall automatically apply
thereto, (ii) any such Trademark and Trademark License shall automatically
become part of the Collateral, and (iii) with respect to any ownership
interest in any such Trademark or Trademark License that the Grantor
should obtain or enter into, it shall give notice thereof to the
Administrative Agent in writing, in reasonable detail, at its address set
forth in the Credit Agreement within 45 days after the end of the fiscal
quarter in which it obtains such ownership interest. The Grantor
authorizes the Administrative Agent to modify this Agreement by amending
Schedules I and II (and will cooperate reasonably with the Administrative
Agent in effecting any such amendment) to include on Schedule I any
Trademark and Trademark License of which it receives notice under this
Section, or to prepare and file with the United States Patent and
Trademark Office a supplement to this Agreement to include any Trademark
of which it receives notice to under this Section.
(h) Maintenance of the Trademark Collateral. Except as permitted in
the Loan Documents, the Grantor agrees to take all reasonably necessary
steps, including, without limitation, in the United States Patent and
Trademark Office or in any court, to (i) maintain each trademark
registration identified on Schedule I hereto, and (ii) pursue each
trademark application now or hereafter identified in Schedule I hereto,
including, without limitation, the filing of responses to office actions
issued by the United States Patent and Trademark Office, the filing of
applications for renewal, the filing of affidavits under Sections 8 and 15
of the United States Trademark Act, and the participation in opposition,
cancellation, infringement and misappropriation proceedings, except, in
each case in which the Grantor has reasonably determined that any of the
foregoing is not of material economic value to it. Except as permitted in
the Loan Documents, the Grantor agrees to take corresponding steps with
respect to each new or acquired Trademark or application for Trademark
registration, in each case, to which it is now or later becomes entitled,
except in each case in which the Grantor has reasonably determined that
any of the foregoing is not of material economic value to it. Any expenses
incurred in connection with such activities shall be borne by the Grantor.
(i) Preservation and Protection of the Trademark Collateral. Except
as provided in Section 4(k) hereof, the Grantor shall take all steps which
it or the Administrative Agent deems reasonably appropriate under the
circumstances to preserve and protect its material Trademark Collateral.
9
9
(j) The Grantor Shall Not Abandon any Collateral. Except as
permitted by the Loan Documents, the Grantor shall not abandon any United
States trademark registration or any pending trademark application, in
each case listed on Schedule I, without the written consent of the
Administrative Agent, unless the Grantor shall have determined that such
use or the pursuit or maintenance of such trademark registration or
pending trademark application is not of material economic value to it, in
which case, the Grantor will, at least annually, give notice of any such
abandonment to the Administrative Agent in writing, in reasonable detail,
at its address set forth in the Credit Agreement.
(k) Infringement of Any Collateral. In the event that the Grantor
becomes aware that any item of the Collateral which the Grantor has
reasonably determined to be material to its business is infringed or
misappropriated by a third party, which infringement or misappropriation
would reasonably be expected to have a Material Adverse Effect, the
Grantor shall notify the Administrative Agent promptly and in writing, in
reasonable detail, at its address set forth in the Credit Agreement, and
shall take such actions as the Grantor or the Administrative Agent deems
reasonably appropriate under the circumstances to protect such Collateral,
including, without limitation, suing for infringement or misappropriation
and for an injunction against such infringement or misappropriation. Any
expense incurred in connection with such activities shall be borne by the
Grantor. The Grantor will advise the Administrative Agent promptly and in
writing, in reasonable detail, at its address set forth in the Credit
Agreement, of any adverse determination or the institution of any
proceeding (including, without limitation, the institution of any
proceeding in the United States Patent and Trademark Office or any court)
regarding any item of the Collateral which has a Material Adverse Effect.
(l) Use of Statutory Notice. The Grantor shall xxxx its products
with the trademark registration symbol (R) or the common law trademark
symbol (TM), as the case may be, to the extent that it is reasonably and
commercially practicable.
(m) Limitation on Liens on Collateral. The Grantor will not create,
incur or permit to exist, will defend the Collateral against, and will
take such other action as is reasonably necessary to remove, any material
Lien or material adverse claim on or to any of the Collateral, other than
Liens created hereby and other than as permitted pursuant to the Loan
Documents (including, without limitation, any Liens permitted to exist on
the Collateral pursuant to subsection 8.3 of the Credit Agreement), and
will defend the right, title and interest of the Administrative Agent and
the other Secured Parties in and to any of the Collateral against the
claims and demands of all Persons whomsoever, except where failure to
defend would not have a Material Adverse Effect.
(n) Limitations on Dispositions of Collateral. Without the prior
written consent of the Administrative Agent, the Grantor will not sell,
assign, transfer, exchange or otherwise dispose of, or grant any option
with respect to, the Collateral, or attempt, offer or contract to do so,
except with respect to licenses in the ordinary course of business or as
permitted by this Agreement or the Loan Documents.
(o) Notices. The Grantor will advise the Administrative Agent
promptly and in writing, in reasonable detail, at its address set forth in
the Credit Agreement, (i) of any Lien (other than Liens created hereby or
permitted under the Loan Documents, including, without limitation, any
Liens permitted to exist on the Collateral pursuant to subsection 8.3 of
the Credit Agreement) on any Trademarks and (ii) of the occurrence of
10
10
any other event which would reasonably be expected in the aggregate to
have a material adverse effect on the aggregate value of the Collateral
taken as a whole or the Liens created hereunder.
5. Administrative Agent's Appointment as Attorney-in-Fact.
(a) Powers. The Grantor hereby irrevocably constitutes and appoints
the Administrative Agent and any officer or agent of the Administrative Agent,
with full power of substitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of the Grantor and
in the name of the Grantor or in its own name, for the purpose of carrying out
the terms of this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be reasonably necessary
or desirable to accomplish the purposes of this Agreement to the extent
permitted by law, and, without limiting the generality of the foregoing, to the
extent permitted by law, the Grantor hereby gives the Administrative Agent the
power and right, on behalf of the Grantor, without notice to or assent by the
Grantor, to do, at any time when an Event of Default has occurred and is
continuing, the following:
(i) to execute and deliver any and all agreements, instruments,
documents, and papers as the Administrative Agent may reasonably request
to evidence the Administrative Agent's and the other Secured Parties'
security interest in any of the Collateral and the goodwill of the Grantor
relating thereto or represented thereby;
(ii) in the name of the Grantor or its own name, or otherwise, to
take possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
General Intangible (to the extent that the foregoing constitute
Collateral) or with respect to any other Collateral and to file any claim
or to take any other action or institute any proceeding in any court of
law or equity or otherwise deemed appropriate by the Administrative Agent
for the purpose of collecting any and all such moneys due under such
General Intangible or with respect to any other Collateral whenever
payable;
(iii) to pay or discharge Liens placed on the Collateral, other than
Liens permitted under this Agreement or the other Loan Documents,
including, without limitation, any Liens permitted to exist on the
Collateral pursuant to subsection 8.3 of the Credit Agreement; and
(iv) (A) to direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Administrative Agent or as the Administrative
Agent shall direct; (B) to ask for, or demand, collect, receive payment of
and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral; (C)
to commence and prosecute any suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect the Collateral or
any thereof and to enforce any other right in respect of any Collateral;
(D) to defend any suit, action or proceeding brought against the Grantor
with respect to any of the Collateral; (E) to settle, compromise or adjust
any suit, action or proceeding described in clause (D) above and, in
connection therewith, to give such discharges or releases as the
Administrative Agent may deem appropriate; (F) subject to any pre-existing
reserved rights or licenses, to assign any Trademark constituting
Collateral (along with the
11
11
goodwill of the business to which any such Trademark pertains), for such
term or terms, on such conditions, and in such manner, as the
Administrative Agent shall in its sole discretion determine; and (G)
generally, to sell, transfer, pledge and make any agreement with respect
to or otherwise deal with any of the Collateral as fully and completely as
though the Administrative Agent were the absolute owner thereof for all
purposes, and to do, at the Administrative Agent's option and the
Grantor's expense, at any time, or from time to time, all acts and things
which the Administrative Agent deems reasonably necessary to protect,
preserve or realize upon the Collateral and the Administrative Agent's and
the other Secured Parties' Liens thereon and to effect the intent of this
Agreement, all as fully and effectively as the Grantor might do.
The Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable until the payment in full of the Loans, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Revolving Credit Commitments and the expiration, termination
or return to the Issuing Lender of any Letters of Credit.
Anything in this Section 5.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 5.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) Other Powers. The Grantor also authorizes the Administrative
Agent, from time to time if an Event of Default shall have occurred and be
continuing, to execute, in connection with any sale provided for in Section 8
hereof, any endorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral.
(c) No Duty on the Part of Administrative Agent or Secured Parties.
The powers conferred on the Administrative Agent and the other Secured Parties
hereunder are solely to protect the Administrative Agent's and the other Secured
Parties' interests in the Collateral and shall not impose any duty upon the
Administrative Agent or any other Secured Party to exercise any such powers. The
Administrative Agent and the other Secured Parties shall be accountable only for
amounts that they actually receive as a result of the exercise of such powers,
and neither they nor any of their officers, directors, employees, affiliates,
agents or successors shall be responsible to the Grantor for any act or failure
to act hereunder, except for gross negligence or willful misconduct of any of
the same.
6. Performance by Administrative Agent of Grantor's Obligations. If
the Grantor fails to perform or comply with any of its agreements contained
herein and the Administrative Agent, as provided for by the terms of this
Agreement, shall perform or comply, or otherwise cause performance or
compliance, with such agreements, the reasonable expenses of the Administrative
Agent incurred in connection with such performance or compliance, together with
interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due ABR Loans which are Term Loans under
the Credit Agreement, from the date of payment by the Administrative Agent to
the date reimbursed by the Grantor, shall be payable by the Grantor to the
Administrative Agent on demand, and the Grantor's obligations to make such
payments shall constitute Obligations secured hereby.
7. Proceeds. It is agreed that if an Event of Default shall occur
and be continuing, (a) all Proceeds of any Collateral received by the Grantor
consisting of cash, checks and other near-cash items shall be held by the
Grantor in trust for the Administrative Agent and the other Secured Parties,
segregated from other funds of the Grantor, and shall, forthwith upon
12
12
receipt by the Grantor, be turned over to the Administrative Agent in the exact
form received by the Grantor (duly indorsed by the Grantor to the Administrative
Agent, if required), and (b) any and all such Proceeds received by the
Administrative Agent (whether from the Grantor or otherwise) shall be held by
the Administrative Agent for the benefit of the Secured Parties as collateral
security for the Obligations (whether matured or unmatured), and/or then or at
any time thereafter may, in the sole discretion of the Administrative Agent, be
applied by the Administrative Agent against the Obligations then due and owing
in the following order of priority:
FIRST, to the payment of all reasonable costs and expenses incurred
by the Administrative Agent (including, without limitation, in its
capacity as Credit Agreement Administrative Agent) in connection with this
Agreement, the Guarantee and Collateral Agreement, the Credit Agreement,
any other Loan Document or any of the Obligations, including, without
limitation, all court costs and the reasonable fees and expenses of its
agents and legal counsel, and any other reasonable costs or expenses
incurred in connection with the exercise by the Administrative Agent
(including, without limitation, in its capacity as Credit Agreement
Administrative Agent) of any right or remedy under this Agreement, the
Credit Agreement, or any other Loan Document;
SECOND, to the ratable satisfaction of all other Obligations; and
THIRD, to the Grantor or its successors or assigns, or to whomsoever
may be lawfully entitled to receive the same.
8. Remedies. If an Event of Default shall occur and be continuing,
the Administrative Agent, on behalf of the Secured Parties, may exercise all
rights and remedies of a secured party under the Code, and, to the extent
permitted by law, all other rights and remedies granted to the Administrative
Agent or any Secured Party in this Agreement and the other Loan Documents and in
any other instrument or agreement securing, evidencing or relating to the
Obligations. Without limiting the generality of the foregoing, the
Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances, to the extent permitted by law, forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, give option or options to
purchase, or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, at any exchange, broker's board or office of the
Administrative Agent or any other Secured Party or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
The Administrative Agent or any other Secured Party shall have the right, to the
extent permitted by law, upon any such sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Grantor, which right or equity is hereby waived and released. The Grantor
further agrees, upon the occurrence and continuation of an Event of Default, at
the Administrative Agent's request, to assemble the Collateral and make it
available to the Administrative Agent at places which the Administrative Agent
shall reasonably select, whether at the Grantor's premises or elsewhere. In the
event of any sale, assignment, or other disposition of any of the Collateral,
the goodwill of the business connected with and symbolized by any Trademark
Collateral subject to such disposition shall be included. The Administrative
Agent shall apply the net proceeds of any such collection, recovery, receipt,
appropriation,
13
13
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred therein or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent and the other Secured Parties hereunder, including, without
limitation, reasonable attorneys' fees and disbursements, to the payment and
performance in whole or in part of the Obligations then due and owing, in the
order of priority specified in Section 7 hereof, and only after such application
and after the payment by the Administrative Agent of any other amount required
by any provision of law, if any, including, without limitation, Section 9-
504(1)(c) of the Code, need the Administrative Agent account for the surplus, if
any, to the Grantor. To the extent permitted by applicable law, (a) the Grantor
waives all claims, damages and demands it may acquire against the Administrative
Agent or any other Secured Party arising out of the repossession, retention or
sale of the Collateral, other than any such claims, damages and demands that may
arise from the gross negligence or willful misconduct of any of them, and (b) if
any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition. The Grantor shall remain
liable for any deficiency if the proceeds of any sale or other disposition of
the Collateral are insufficient to pay in full the Loans, the Reimbursement
Obligations, and, to the extent then due and owing, all other Obligations,
including, without limitation, the reasonable fees and disbursements of any
attorneys employed by the Administrative Agent or any other Secured Party to
collect such deficiency, as provided in the Credit Agreement.
9. Limitation on Duties Regarding Preservation of Collateral. The
Administrative Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the Code or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar property for its own account. Neither
the Administrative Agent, any other Secured Party, nor any of their respective
directors, officers, employees, affiliates or agents shall be liable for failure
to demand, collect or realize upon all or any part of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of the Grantor or any other Person.
10. Powers Coupled with an Interest. All authorizations and agencies
herein contained with respect to the Collateral are powers coupled with an
interest and are irrevocable until the payment in full of the Loans, the
Reimbursement Obligations and, to the extent then due and owing, all other
Obligations, the termination of the Revolving Credit Commitments and the
expiration, termination or return to the Issuing Lender of any Letters of
Credit.
11. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
13. No Waiver; Cumulative Remedies. Neither the Administrative Agent
nor any other Secured Party nor the Grantor shall by any act (except by a
written instrument pursuant to Section 14 hereof), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any
14
14
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent, any other
Secured Party or the Grantor, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by the
Administrative Agent, any other Secured Party or the Grantor of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent, such other Secured Party or the
Grantor would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any rights or remedies provided by law.
14. Waivers and Amendments; Successors and Assigns. None of the
terms or provisions of this Agreement may be amended, supplemented, waived or
otherwise modified except by a written instrument executed by the Grantor and
the Administrative Agent, provided that, if requested by the Grantor, any
provision of this Agreement for the benefit of the Administrative Agent and/or
the other Secured Parties may be waived by the Administrative Agent in a written
letter or agreement executed by the Administrative Agent or by telex or
facsimile transmission from the Administrative Agent. This Agreement shall be
binding upon and shall inure to the benefit of the Grantor and its successors
and assigns, and the Administrative Agent and the other Secured Parties and
their respective successors, indorsees, transferees and assigns, except that
(other than in accordance with subsection 8.5 of the Credit Agreement) the
Grantor shall not assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Administrative
Agent.
15. Notices. All notices, requests and demands to or upon the
respective parties hereto shall be made in accordance with subsection 12.2 of
the Credit Agreement. The Administrative Agent, the Secured Parties and the
Grantor may change their respective addresses and transmission numbers for
notices by notice in the manner provided in this Section 15.
16. Authority of Administrative Agent. The Grantor acknowledges that
the rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Administrative Agent and the other
Secured Parties, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and the Grantor, the Administrative Agent
shall be conclusively presumed to be acting as agent for the Secured Parties
with full and valid authority so to act or refrain from acting, and the Grantor
shall not be under any obligation to make any inquiry respecting such authority.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
18. Release of Collateral and Termination. (a) This Agreement shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms and the security interest created by this Agreement shall
not be released until the payment in full of the Loans, the Reimbursement
Obligations and the other Obligations then due and owing shall have occurred,
the Revolving Credit Commitments shall have been terminated and any Letters
15
15
of Credit shall have expired or been terminated or returned to the Issuing
Lender, at which time the Collateral shall be released from the Liens created
hereby, and this Agreement and all obligations (other than those expressly
stated to survive such termination) of the Administrative Agent and the Grantor
hereunder shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights to the Collateral shall revert to the
Grantor, provided that if any payment, or any part thereof, of any of the
Obligations is rescinded or must otherwise be restored or returned by the
Administrative Agent or any other Secured Party upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Grantor or any other Loan
Party, or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or a trustee or similar officer for, the Grantor or any other
Loan Party or any substantial part of its property, or otherwise, this
Agreement, all rights hereunder and the Liens created hereby shall continue to
be effective, or be reinstated, as though such payments had not been made. Upon
request of the Grantor following any such termination, the Administrative Agent
shall reassign (at the sole cost and expense of the Grantor) to the Grantor any
Collateral held by the Administrative Agent hereunder, and execute and deliver
(at the sole cost and expense of the Grantor) to the Grantor such documents as
the Grantor shall reasonably request to evidence such termination and
reassignment.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by the Grantor in a transaction permitted by the Credit Agreement,
then the Administrative Agent shall execute and deliver to the Grantor (at the
sole cost and expense of the Grantor) all releases or other documents reasonably
necessary or desirable for the release of the Liens created hereby on such
Collateral.
19. Incorporation of Provisions of Guarantee and Collateral
Agreement. The Grantor hereby acknowledges and affirms that the rights and
remedies of the Administrative Agent with respect to the security interest in
the Collateral made and granted hereby are more fully set forth in the Guarantee
and Collateral Agreement, the terms, conditions and other provisions of which,
in so far as they relate to the Collateral, such security interest and such
rights and remedies, are incorporated by reference herein as if fully set forth
herein. Nothing in this Agreement shall defer or impair the attachment or
perfection of any security interest in any collateral described in the Guarantee
and Collateral Agreement which would attach or be perfected pursuant to the
terms of the Guarantee and Collateral Agreement without action by the Grantor or
any other Person.
20. Interpretation. In the event of a conflict between any term of
this Agreement and the terms of the Credit Agreement, the terms of the Credit
Agreement shall control.
21. Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Grantor and the Administrative Agent with
respect to the subject matter hereof and there are no promises or
representations by the Grantor, the Administrative Agent or any other Secured
Party relative to the subject matter hereof not reflected or referred to herein
or therein.
22. Submission To Jurisdiction; Waivers. Each party hereto hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general
16
16
jurisdiction of the courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient forum and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Grantor or the applicable Secured Party, as the case may be, at the
address referred to in Section 15 or at such other address of which the
Administrative Agent and the Grantor shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section 22 any punitive damages.
23. WAIVER OF JURY TRIAL. THE GRANTOR AND THE ADMINISTRATIVE AGENT
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
24. Counterparts. This Agreement may be executed and acknowledged by
one or more of the parties to this Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
17
17
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
XxXXXXXX, XXXXXXXX & XXXXXX, INC.
By: ____________________________________
Title:
ACKNOWLEDGED AND AGREED AS OF
THE DATE HEREOF BY:
THE CHASE MANHATTAN BANK, as Administrative Agent
By: ____________________________________
Title:
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the ___________ day of _________, 1998, before me personally came
____________________ to me known, who, being by me duly sworn, did depose and
say he resides at ___________________________ and that he is the
_____________________________ of XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc., the
corporation described in and which executed the above instrument; that he has
been authorized to execute said instrument on behalf of said corporation; and
that he signed said instrument on behalf of said corporation pursuant to said
authority.
____________________________________
Notary Public
[Notarial Seal]
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _________, 1998, before me personally came
_________________ to me known, who, being by me duly sworn, did depose and say
he resides at _______________________ and that he is the _______________________
of THE CHASE MANHATTAN BANK, the national banking association described in and
which executed the above instrument; that he has been authorized to execute said
instrument on behalf of said association; and that he has signed said instrument
on behalf of said association pursuant to said authority.
____________________________________
Notary Public
[Notarial Seal]
20
Schedule I
TRADEMARKS AND TRADEMARK LICENSES
21
Schedule II
EXISTING SECURITY INTERESTS
---------------------------
