Exhibit 4.8
GUARANTEE AND COLLATERAL AGREEMENT
made by
XXXXX & XXXXX COMPANY
and certain of its Subsidiaries
in favor of
KOJAIAN FUNDING, L.L.C.
Dated as of May 9, 2003
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINED TERMS 1
1.1 DEFINITIONS 1
1.2 OTHER DEFINITIONAL PROVISIONS 5
SECTION 2. GUARANTEE 5
2.1 GUARANTEE 5
2.2 RIGHT OF CONTRIBUTION 6
2.3 NO SUBROGATION 6
2.4 AMENDMENTS, ETC. WITH RESPECT TO THE BORROWER OBLIGATIONS 6
2.5 GUARANTEE ABSOLUTE AND UNCONDITIONAL 7
2.6 REINSTATEMENT 8
2.7 PAYMENTS 8
SECTION 3. GRANT OF SECURITY INTEREST 8
SECTION 4. REPRESENTATIONS AND WARRANTIES 9
4.1 REPRESENTATIONS IN CREDIT AGREEMENT 9
4.2 TITLE: NO OTHER LIENS 9
4.3 PERFECTED FIRST PRIORITY LIENS 10
4.4 CHIEF EXECUTIVE OFFICE 10
4.5 INVENTORY AND EQUIPMENT 10
4.6 FARM PRODUCTS 10
4.7 PLEDGED SECURITIES 10
4.8 RECEIVABLES 11
4.9 INTELLECTUAL PROPERTY 11
SECTION 5. COVENANTS 11
5.1 COVENANTS IN CREDIT AGREEMENT 11
5.2 DELIVERY OF INSTRUMENTS AND CHATTEL PAPER 12
5.3 MAINTENANCE OF INSURANCE 12
5.4 PAYMENT OF OBLIGATIONS 12
5.5 MAINTENANCE OF PERFECTED SECURITY INTEREST:
FURTHER DOCUMENTATION 12
5.6 CHANGES IN LOCATIONS, NAME, ETC. 12
5.7 NOTICES 13
5.8 PLEDGED SECURITIES 13
5.9 RECEIVABLES 14
5.10 INTELLECTUAL PROPERTY 14
SECTION 6. REMEDIAL PROVISIONS 16
6.1 CERTAIN MATTERS RELATING TO RECEIVABLES 16
6.2 COMMUNICATIONS WITH OBLIGORS; GRANTORS REMAIN LIABLE 17
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6.3 PLEDGED STOCK 17
6.4 PROCEEDS TO BE TURNED OVER TO LENDER 18
6.5 APPLICATION OF PROCEEDS 18
6.6 CODE AND OTHER REMEDIES 18
6.7 REGISTRATION RIGHTS 19
6.8 WAIVER, DEFICIENCY 20
SECTION 7. MISCELLANEOUS 20
7.1 AMENDMENTS IN WRITING 20
7.2 NOTICES 20
7.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES 21
7.4 ENFORCEMENT EXPENSES; INDEMNIFICATION 21
7.5 SUCCESSORS AND ASSIGNS 22
7.6 SET OFF 22
7.7 COUNTERPARTS 22
7.8 SEVERABILITY 22
7.9 SECTION HEADINGS 22
7.10 INTEGRATION 22
7.11 GOVERNING LAW 23
7.12 SUBMISSION TO JURISDICTION; WAIVERS 23
7.13 ACKNOWLEDGMENTS 23
7.14 WAIVER OF JURY TRIAL 24
7.15 ADDITIONAL GRANTORS 24
7.16 RELEASES 24
SCHEDULES:
1 Notice of Addresses of Guarantors
2 Description of Pledged Securities
3 Filings and Other Actions Required to Perfect Security Interests
-UCC Financing Statements
4 Location of Jurisdiction of Organization and Chief Executive Office
5 Location of Inventory and Equipment
6 Intellectual Property
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GUARANTEE AND COLLATERAL AGREEMENT
This GUARANTEE AND COLLATERAL AGREEMENT, dated as of May 9, 2003, made by
each of the signatories hereto (together with any other entity that may become a
party hereto as provided herein, the "GRANTORS"), in favor of KOJAIAN FUNDING,
L.L.C., a Michigan limited liability company, (the "Lender") party to the Letter
Agreement, dated as of May 7, 2003 (the "LETTER AGREEMENT"), between XXXXX &
XXXXX COMPANY, a Delaware corporation (the "Borrower") and the Lender.
WITNESSETH:
WHEREAS, pursuant to the Letter Agreement, the Lender has agreed to make
a Four Million Dollar ($4,000,000) loan to the Borrower (the "Loan") upon the
terms and subject to the conditions set forth therein:
WHEREAS, the Borrower is a member of an affiliated group of companies
that includes each other Grantor;
WHEREAS, the proceeds of the Loan will be used in part to enable the
Borrower to make valuable transfers to one or more of the other Grantors in
connection with the operation of their respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the Loan; and
WHEREAS, it is a condition precedent to the obligation of the Lender to
make its Loan to the Borrower that the Grantors shall have executed and
delivered this Agreement to the Lender.
NOW, THEREFORE, in consideration of the promises and to induce the Lender
to make the Loan to the Borrower thereunder, each Grantor hereby agrees with the
Lender as follows:
SECTION 1. DEFINED TERMS
1.1 DEFINITIONS. (a) Unless otherwise defined herein, terms defined in
the Security Agreement dated as of even date herewith among the Borrower and the
Lender (the "Security Agreement") and used herein shall have the meanings given
to them in the Security Agreement, and the following terms which are defined in
the Uniform Commercial Code in effect in the State of Illinois on the date
hereof are used herein as so defined: Accounts, Chattel Paper, Documents,
Equipment, Farm Products, Instruments and Inventory.
(b) The following terms shall have the following meanings:
"AGREEMENT": this Guarantee and Collateral Agreement, as the same
may be
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amended, supplemented or otherwise modified from time to time.
"BORROWER OBLIGATIONS": the collective reference to the unpaid
principal of and interest on the Loan and all other obligations and
liabilities of the Borrower (including, without limitation, interest
accruing at the then applicable rate provided in the Promissory Note
dated of even date herewith from Borrower to Lender (the "Note") after
the maturity of the Loan and interest accruing at the then applicable
rate provided in the Note after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to the Lender (or,
in the case of any Hedge Agreement referred to below, any Affiliate of
Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, the Note, Security Agreement, this
Agreement, the other Loan Documents, any Letter of Credit or any Hedge
Agreement entered into by the Borrower with Lender (or any Affiliate of
Lender) or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest,
reimbursement obligations, guarantee obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Lender that are required to be paid by
the Borrower pursuant to the terms of any of the foregoing agreements).
"COLLATERAL": as defined in Section 3.
"COLLATERAL ACCOUNT": any collateral account established by the
Lender as provided in Section 6.1 or 6.4.
"COPYRIGHTS": (i) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished
(including, without limitation, those listed in SCHEDULE 6), all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings
and applications in the United States Copyright Office, and (ii) the
right to obtain all renewals thereof.
"COPYRIGHT LICENSES": any written agreement naming any Grantor as
licensor or licensee (including, without limitation, those listed in
SCHEDULE 6), granting any right under any Copyright, including, without
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"GENERAL INTANGIBLES": all "general intangibles" as such term is
defined in Section 9-106 of the Uniform Commercial Code in effect in the
State of Illinois on the date hereof and, in any event, including,
without limitation, with respect to any Grantor, all contracts,
agreements, instruments and indentures in any form, and portions thereof,
to which such Grantor is a party or under which such Grantor has any
right, title or interest or to which such Grantor or any property of such
Grantor is subject, as the same
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may from time to time be amended, supplemented or otherwise modified,
including, without limitation, (i) all rights of such Grantor to receive
moneys due and to become due to it thereunder or in connection therewith,
(ii) all rights of such Grantor to damages arising thereunder and (iii)
all rights of such Grantor to perform and to exercise all remedies
thereunder, in each case to the extent the grant by such Grantor of a
security interest pursuant to this Agreement in its right, title and
interest in such contract, agreement, instrument or indenture is not
prohibited by such contract agreement, instrument or indenture without
the consent of any other party thereto, would not give any other party to
such contract agreement, instrument or indenture the right to terminate
its obligations thereunder, or is permitted with consent if all necessary
consents to such grant of a security interest have been obtained from the
other parties thereto (it being understood that the foregoing shall not
be deemed to obligate such Grantor to obtain such consents); PROVIDED,
that the foregoing limitation shall not affect, limit, restrict or impair
the grant by such Grantor of a security interest pursuant to this
Agreement in any Receivable or any money or other amounts due or to
become due under any such contract, agreement, instrument or indenture.
"GUARANTOR OBLIGATIONS": with respect to any Guarantor, the
collective reference to, without duplication, (i) the Borrower
Obligations and (ii) all obligations and liabilities of such Guarantor
which may arise under or in connection with this Agreement or any other
Loan Document to which such Guarantor is a party, in each case whether on
account of guarantee obligations, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to Lender that are required to be
paid by such Guarantor pursuant to the terms of this Agreement or any
other Loan Document).
"GUARANTORS": the collective reference to each Grantor other than
the Borrower.
"HEDGE AGREEMENTS": as to any Person, all interest rate swaps,
caps or collar agreements or similar arrangements entered into by such
Person providing for protection against fluctuations in interest rates or
currency exchange rates or the exchange of nominal interest obligations,
either generally or under specific contingencies.
"INTELLECTUAL PROPERTY": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Copyright Licenses,
the Patents, the Patent Licenses, the Trademarks and the Trademark
Licenses, and all rights to xxx at law or in equity for any infringement
or other impairment thereof, including the right to receive all proceeds
and damages therefrom.
"INTERCOMPANY NOTE": any promissory note evidencing loans made by
any Grantor to the Borrower or any of its Subsidiaries.
"ISSUERS": the collective reference to each issuer of a Pledged
Security.
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"ILLINOIS UCC": the Uniform Commercial Code as from time to time
in effect in the State of Illinois.
"OBLIGATIONS": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"PATENTS": (i) all letters patent of the United States, any other
country or any political subdivision thereof and all goodwill associated
therewith, all reissues and extensions thereof, including, without
limitation, any of the foregoing referred to in SCHEDULE 6, (ii) all
applications for letters patent of the United States or any other country
and all divisions, continuations and continuations-in-part thereof,
including, without limitation, any of the foregoing referred to in
SCHEDULE 6, and (iii) all rights to obtain any reissues or extensions of
the foregoing.
"PATENT LICENSE": all agreements, whether written or oral,
providing for the grant by or to any Grantor of any right to manufacture,
use or sell any invention covered in whole or in part by a Patent,
including, without limitation, any of the foregoing referred to in
SCHEDULE 6.
"PLEDGED NOTES": all promissory notes listed on SCHEDULE 2, all
Intercompany Notes at any time issued to any Grantor and all other
promissory notes issued to or held by any Grantor (other than promissory
notes issued in connection with extensions of trade credit by any Grantor
in the ordinary course of business).
"PLEDGED SECURITIES": the collective reference to the Pledged
Notes and the Pledged Stock.
"PLEDGED STOCK": the shares of Capital Stock listed on SCHEDULE 2,
together with any other shares, stock certificates, options or rights of
any nature whatsoever in respect of the Capital Stock of any Person that
may be issued or granted to, or held by, any Grantor while this Agreement
is in effect; PROVIDED that Pledged Stock shall not include more than 66%
of the issued and outstanding Capital Stock of any Foreign Subsidiary.
"PROCEEDS": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of
Illinois on the date hereof and, in any event, shall include, without
limitation, all dividends or other income from the Pledged Securities,
collections thereon or distributions or payments with respect thereto.
"RECEIVABLE": any right to payment for goods sold or leased or for
services rendered, whether or not such right is evidenced by an
Instrument or Chattel Paper and whether or not it has been earned by
performance (including, without limitation, any Account).
"SECURITIES ACT": the Securities Act of 1933, as amended.
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"TRADEMARKS": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and all
goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications
in connection therewith, whether in the United States Patent and
Trademark Office or in any similar office or agency of the United States,
any State thereof or any other country or any political subdivision
thereof, or otherwise, and all common-law rights related thereto,
including, without limitation, any of the foregoing referred to in
SCHEDULE 6, and (ii) the right to obtain all renewals thereof.
"TRADEMARK LICENSE": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred
to in SCHEDULE 6.
1.2 OTHER DEFINITIONAL PROVISIONS, (a) The words "hereof, "herein",
"hereto" 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 Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 GUARANTEE. (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably guarantees to the Lender and its
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Borrower Obligations.
(b) Anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at
any time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing the guarantee contained in this Section 2
or affecting the rights and remedies of the Lender hereunder.
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(d) The guarantee contained in this Section 2 shall remain in
full force and effect until all the Borrower Obligations and the obligations of
each Guarantor under the guarantee contained in this Section 2 shall have been
indefeasibly satisfied by payment in full, notwithstanding that from time to
time during the term of the Security Agreement the Borrower may be free from any
Borrower Obligations.
(e) No payment made by the Borrower, any Guarantor, any other
guarantor or any other Person or received or collected by the Lender from the
Borrower, any Guarantor, any other guarantor or any other Person by virtue of
any action or proceeding or any set-off or appropriation or application at any
time or from time to time shall be deemed to modify, reduce, release or
otherwise affect the liability of any Guarantor hereunder which shall
notwithstanding any such payment (other than any payment made by such Guarantor
in respect of the Borrower Obligations or any payment received or collected from
such Guarantor in respect of the Borrower Obligations), remain liable for the
Borrower Obligations up to the maximum liability of such Guarantor hereunder
until the Borrower Obligations are paid in full.
2.2 RIGHT OF CONTRIBUTION. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid an amount hereunder which would, but for
this provision, render such Guarantor insolvent for purposes of state or federal
fraudulent conveyance laws, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder to the extent such
contribution would not render such other Guarantor insolvent. Each Guarantor's
right of contribution shall be subject to the terms and conditions of Section
2.3. The provisions of this Section 2.2 shall in no respect limit the
obligations and liabilities of any Guarantor to the Lender, and each Guarantor
shall remain liable to the Lender for the full amount guaranteed by such
Guarantor hereunder.
2.3 NO SUBROGATION. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by Lender, no
Guarantor shall be entitled to be subrogated to any of the rights of Lender
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by Lender for the payment of the Borrower
Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing to
Lender by the Borrower on account of the Borrower Obligations are indefeasibly
paid in full. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Borrower Obligations shall not
have been indefeasibly paid in full, such amount shall be held by such Guarantor
in trust for Lender, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor be turned over to Lender in the exact
form received by such Guarantor (duly indorsed by such Guarantor to Lender, if
required), to be applied against the Borrower Obligations, whether matured or
unmatured, in such order as Lender may determine.
2.4 AMENDMENTS, ETC. WITH RESPECT TO THE BORROWER OBLIGATIONS. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment
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of any of the Borrower Obligations made by Lender may be rescinded by Lender and
any of the Borrower Obligations continued, and the Borrower Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by Lender, and the
Note, Security Agreement and the other Loan Documents and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Lender may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by Lender for the payment of the Borrower Obligations
may be sold, exchanged, waived, surrendered or released. Lender shall not have
any obligation to protect, secure, perfect or insure any Lien at any time held
by it as security for the Borrower Obligations or for the guarantee contained in
this Section 2 or any property subject thereto.
2.5 GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by Lender upon the
guarantee contained in this Section 2 or acceptance of the guarantee contained
in this Section 2; the Borrower Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon the guarantee contained in this Section 2;
and all dealings between the Borrower and any of the Guarantors, on the one
hand, and Lender, on the other hand, likewise shall be conclusively presumed to
have been had or consummated in reliance upon the guarantee contained in this
Section 2. Each Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Borrower or any of
the Guarantors with respect to the Borrower Obligations. Each Guarantor
understands and agrees that the guarantee contained in this Section 2 shall be
construed as a continuing, absolute and unconditional guarantee of payment, and
not of collection, without regard to (a) the validity or enforceability of the
Note, Security Agreement or any other Loan Document, any of the Borrower
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by Lender, (b)
any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower or any other Person against Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrower or such
Guarantor) which constitutes, or might be construed to constitute, an equitable
or legal discharge of the Borrower for the Borrower Obligations, or of such
Guarantor under the guarantee contained in this Section 2, in bankruptcy or in
any other instance. When making any demand hereunder or otherwise pursuing its
rights and remedies hereunder against any Guarantor, Lender may, but shall be
under no obligation to, make a similar demand on or otherwise pursue such rights
and remedies as it may have against the Borrower, any other Guarantor or any
other Person or against any collateral security or guarantee for the Borrower
Obligations or any right of offset with respect thereto, and any failure by
Lender to make any such demand, to pursue such other rights or remedies or to
collect any payments from the Borrower, any other Guarantor or any other Person
or to realize upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of the Borrower, any other Guarantor or any
other Person or any such collateral security, guarantee or right of Offset shall
not relieve any Guarantor of any obligation or liability hereunder, and shall
not impair or affect
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the rights and remedies, whether express, implied or available as a matter of
law, of Lender against any Guarantor. For the purposes hereof "demand" shall
include the commencement and continuance of any legal proceedings.
2.6 REINSTATEMENT. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Borrower Obligations is rescinded or
must otherwise be restored or returned Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower or any Guarantor, or
upon or as a result of the appointment of a receiver, intervener or conservator
of, or trustee or similar officer for, the Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
2.7 PAYMENTS. Each Guarantor hereby guarantees that payments hereunder
will be paid to the Lender without set-off or counterclaim in Dollars at 00000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000.
SECTION 3. GRANT OF SECURITY INTEREST
3.1 (a) Each Grantor hereby grants to the Lender, a security
interest in (and pledges of ownership and other interests, as applicable) all of
the following property now owned or at any time hereafter acquired by such
Grantor or in which such 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 such Grantor's
Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Documents;
(d) all Equipment (other than Equipment secured by a Lien
permitted pursuant to Sections 8.3(f), 8.3(g), 8.3(h) and 8.3(k) of that
certain Credit Agreement dated December 31, 2000 (as amended, restated,
refinanced or other modified from time to time) between Borrower and
various other financial institutions (together with their respective
successors and assigns), and Bank of America, N.A. (the "Credit
Agreement");
(e) all General Intangibles;
(f) all Instruments;
(g) all Intellectual Property;
(h) all Inventory;
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(i) all Pledged Securities;
(j) all books and records pertaining to the Collateral; and
(k) 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.
Notwithstanding the foregoing to the contrary, Collateral shall not include
ownership or other interests in the Persons listed in Schedule I hereto,
property which is subject to an agreement that expressly prohibits the granting
of a Lien that is permitted under Section 8.3 of the Credit Agreement, or which
would, as a result of granting a Lien in such property, cause a default under
any such permitted Lien.
(b) To further secure the payment, performance and observance
of the Obligations of each Grantor hereunder, each Grantor hereby collaterally
assigns to Lender all of such Grantor's right, title and interest in, under and
to any Leases to which such Grantor is a party, except to the extent that such
collateral assignment, in and of itself, is prohibited by the terms of such
Lease or would constitute a default under such lease. This Assignment is for
collateral security purposes only. So long as no Event of Default has occurred
and is continuing, such Grantor shall have the right to retain, use and enjoy
all rights under each such Lease, including the right to use and occupy the
premises subject to the Lease.
(c) Notwithstanding anything to the contrary, this Guarantee
and Collateral Agreement shall be subject to and subordinate to the liens and
rights granted in the Amended and Restated Credit Agreement, dated as of
December 31, 2000 as amended, among the Borrower, various financial
institutions, LaSalle Bank National Association, American National Bank & Trust
Company of Chicago and Bank of America (the "Credit Agreement").
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Lender to enter into the Letter Agreement and to induce the
Lender to make the Loan to the Borrower thereunder, each Grantor hereby
represents and warrants to Lender that:
4.1 REPRESENTATIONS IN CREDIT AGREEMENT. In the case of each
Guarantor, the representations and warranties set forth in Section 5 of the
Credit Agreement as they relate to such Guarantor, or to the Loan Documents to
which such Guarantor is a party, each of which is hereby incorporated herein by
reference, are true and correct, and the Lender shall be entitled to rely on
each of them as if they were fully set forth herein and made to Lender, provided
that each reference in each such representation and warranty to the Borrower's
knowledge shall, for the purposes of this Section 4.1, be deemed to be a
reference to such Guarantor's knowledge.
4.2 TITLE: NO OTHER LIENS. Except for the security interest granted to
the Lender pursuant
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to this Agreement and the other Liens permitted to exist on the Collateral by
the Credit Agreement, such Grantor owns each item of the Collateral free and
clear of any and all Liens or claims of others. No financing statement or other
public notice with respect to all or any part of the Collateral is on file or of
record in any public office, except such as have been filed in favor of the
Lenders under the Credit Agreement, for the benefit of the Lender, pursuant to
this Agreement or as are permitted by the Credit Agreement, Security Agreement
or as they relate to obligations being paid on or about the date hereof (all of
which obligations are being paid in full on the Closing Date.)
4.3 PERFECTED PRIORITY LIENS. The security interests, subject to the
Security Agreement granted pursuant to this Agreement (a) upon completion of the
filings and other actions specified on SCHEDULE 3 (which, in the case of all
filings and other documents referred to on said Schedule, have been delivered to
the Lender in completed and duly executed form) will constitute valid, and to
the extent liens thereon can be perfected by the filings and actions specified
on Schedule 3, perfected security interests in all of the Collateral in favor of
the Lender, as collateral security for such Grantor's Obligations, enforceable
in accordance with the terms hereof against all creditors of such Grantor and
any Persons purporting to purchase any Collateral from such Grantor, and (b) are
prior to all other Liens on the Collateral in existence on the date hereof other
than Liens permitted by the Credit Agreement which have priority over the Liens
on the Collateral by operation of law.
4.4 CHIEF EXECUTIVE OFFICE. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office or sole place of business are specified on SCHEDULE 4.
4.5 INVENTORY AND EQUIPMENT. On the date hereof the Inventory and the
Equipment (other than mobile goods) are kept at the locations listed on SCHEDULE
5.
4.6 FARM PRODUCTS. None of the Collateral constitutes, or is the
Proceeds of Farm Products.
4.7 PLEDGED SECURITIES. (a) The shares of Pledged Stock pledged by
such Grantor hereunder constitute all the issued and outstanding shares of all
classes of the Capital Stock of each Subsidiary owned by such Grantor or, in the
case of any Subsidiary that is a Foreign Subsidiary, 66% of the issued and
outstanding shares of Capital Stock of such Subsidiary.
(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(c) Each of the Pledged Notes executed by Borrower or a
Restricted Subsidiary constitutes a legal, valid and binding obligation,
enforceable in accordance with its terms, subject to the effects of 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.
10
(d) Such Grantor is the record and beneficial owner of, and has
good and marketable title to, the Pledged Securities pledged by it hereunder,
free of any and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement and Liens not
prohibited by the Credit Agreement.
4.8 RECEIVABLES. (a) No amount payable to such Grantor under or in
connection with any Receivable is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Lender.
(b) The amounts represented by such Grantor to the Lender from
time to time as owing to such Grantor in respect of the Receivables will at such
times be accurate in all material respects.
4.9 INTELLECTUAL PROPERTY. (a) SCHEDULE 6 lists all material
Intellectual Property owned by such Grantor in its own name on the date hereof.
(b) On the date hereof, all material Intellectual Property
owned or used by such Grantor is valid, subsisting, unexpired and enforceable,
has not been abandoned; and to the Grantor's knowledge, does not, and has not
been alleged to, infringe the intellectual property rights of any other Person.
(c) Except to the extent granted in the ordinary course of
business, on the date hereof none of the Intellectual Property owned or used by
such Grantor is the subject of any licensing or franchise agreement pursuant to
which such Grantor is the licensor or franchiser.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of, or
such Grantor's rights in, any Intellectual Property owned or used by such
Grantor in any respect that is reasonably likely to have a material adverse
effect.
(e) Except as set forth in Schedule 5.9 to the Credit
Agreement, no action or proceeding is pending, or, to the knowledge of such
Grantor, threatened, on the date hereof (i) seeking to limit, cancel or question
the validity of any material Intellectual Property owned or used by such Grantor
or such Grantor's ownership interest therein, and (ii) which is reasonably
likely to have a material adverse effect on the value of any Intellectual
Property owned or used by such Grantor.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Lender, that, from and after
the date of this Agreement until the Obligations shall have been paid in full:
5.1 COVENANTS IN SECURITY AGREEMENT. In the case of each Guarantor,
such Guarantor shall take, or shall refrain from taking, as the case may be,
each action that is necessary to be taken or not taken, as the case may be, so
that no Default or Event of Default is caused by the
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failure to take such action or to refrain from taking such action by such
Guarantor or any of its Subsidiaries.
5.2 DELIVERY OF INSTRUMENTS AND CHATTEL PAPER. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument or Chattel Paper, such Instrument or Chattel Paper shall be
immediately delivered to the Lender, duly indorsed in a manner satisfactory to
the Lender, to be held as Collateral pursuant to this Agreement.
5.3 MAINTENANCE OF INSURANCE. (a) Such Grantor will, or will cause
Borrower to, comply with the terms and provisions of the Security Agreement
governing the maintenance of insurance.
5.4 PAYMENT OF OBLIGATIONS. Except to the extent otherwise expressly
permitted by the Security Agreement, such Grantor will pay and discharge, or
otherwise satisfy, at or before maturity or before they become delinquent, as
the case may be, all taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as
well as all claims of any kind (including, without limitation, claims for labor,
materials and supplies) against or with respect to the Collateral, except that
no such charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
5.5 MAINTENANCE OF PERFECTED SECURITY INTEREST: FURTHER DOCUMENTATION.
(a) Such Grantor shall maintain the security interest created by this Agreement
as a perfected (to the extent perfected by the actions or filings described in
SCHEDULE 3 hereto) security interest having at least the priority described in
Section 4.3 and shall defend such security interest against the claims and
demands of all Persons whomsoever other than the holders of Liens permitted by
the Security Agreement.
(b) Such Grantor will furnish to the Lender from time to time
statements and schedules further identifying and describing the Collateral and
such other reports in connection with the Collateral in each case as Lender may
reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written request
of the Lender, and at the sole expense of such Grantor, such Grantor will
promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further actions as the Lender 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 (or other similar laws) in effect in any
jurisdiction with respect to the security interests created hereby.
5.6 CHANGES IN LOCATIONS, NAME, ETC. Such Grantor will not, except
upon 15 days'
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prior written notice to the Lender and delivery to the Lender of (a) all
additional executed financing statements and other documents reasonably
requested by the Lender to maintain the validity, perfection and priority of the
security interests provided for herein and (b) if applicable, a written
supplement to SCHEDULE 5 showing any additional location at which Inventory or
Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept at a
location other than those listed on SCHEDULE 5 (or such other location
where appropriate filings have been made);
(ii) change the location of its chief executive office or sole
place of business from that referred to in Section 4.4; or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Lender in connection
with this Agreement would become misleading.
5.7 NOTICES. Such Grantor will advise the Lender promptly, in
reasonable detail, of:
(a) any Lien (other than security interests created hereby or
Liens permitted under the Credit Agreement and Security Agreement) on any of the
Collateral which would adversely affect the ability of the Lender to exercise
any of its remedies hereunder; and
(b) of the occurrence of any other event which could reasonably
be expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
5.8 PLEDGED SECURITIES. (a) Except as provided in the Credit
Agreement, if such Grantor shall become entitled to receive or shall receive any
stock certificate (including, without limitation, any certificate representing a
stock dividend or a distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in connection with
any reorganization), option or rights in respect of the Capital Stock of any
Issuer, whether in addition to, in substitution of, as a conversion of, or in
exchange for, any shares of the Pledged Stock, or otherwise in respect thereof,
such Grantor shall accept the same as the agent of the Lender and the Lender,
hold the same in trust for the Lender and the Lender and deliver the same
forthwith to the Lender in the exact form received, duly indorsed by such
Grantor to the Lender, if required, together with an undated stock power
covering such certificate duly executed in blank by such Grantor and with, if
the Lender so requests, signature guaranteed, to be held by the Lender, subject
to the terms hereof, as additional collateral security for the Obligations. Any
sums paid upon or in respect of the Pledged Securities upon the liquidation or
dissolution of any Issuer shall be deemed to be Dispositions and shall be
treated in accordance with the terms and provisions of the Security Agreement.
Notwithstanding anything to the contrary herein, in no event shall any Grantor
be required to pledge more than 66% of the outstanding Capital Stock of any
Foreign Subsidiary.
(b) Except as permitted in the Credit Agreement and to the
extent prohibited
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by the Security Agreement, such Grantor will not (i) vote to enable, or take any
other action to permit, any Issuer to issue any stock or other equity securities
of any nature or to issue any other securities convertible into or granting the
right to purchase or exchange for any stock or other equity securities of any
nature of any Issuer, (ii) sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Pledged Securities or
Proceeds thereof (except pursuant to a transaction expressly permitted by the
Credit Agreement), (iii) create, incur or permit to exist any Lien or option in
favor of, or any claim of any Person with respect to, any of the Pledged
Securities or Proceeds thereof, or any interest therein, or (iv) enter into any
agreement or undertaking (other than the Loan Documents) restricting the right
or ability of such Grantor or the Lender to sell, assign or transfer any of the
Pledged Securities or Proceeds thereof.
(c) Except to the extent of the provisions of the Credit
Agreement, concurrently with the pledge of Pledged Stock in respect of any
Issuer that is a partnership or limited liability company, the relevant Grantor
will send to such Issuer written instructions confirming that such Pledged Stock
has been pledged to Lender and requesting such Issuer to deliver to the Lender
an acknowledgment in form and substance satisfactory to Lender confirming that
such Issuer has registered the pledge effected by this Agreement on its books.
(d) In the case of each Grantor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to the
Pledged Securities issued by it and will comply with such terms insofar as such
terms are applicable to it, (ii) it will notify the Lender promptly in writing
of the occurrence of any of the events described in Section 5.8(a) with respect
to the Pledged Securities issued by it and (iii) the terms of Sections 6.3(c)
and 6.7 shall apply to it, MUTATIS MUTANDIS, with respect to all actions that
may be required of it pursuant to Section 6.3(c) or 6.7 with respect to the
Pledged Securities issued by it.
5.9 RECEIVABLES. (a) Other than in the ordinary course of business
consistent with its past practice or as permitted by the Credit Agreement, such
Grantor will not (i) grant any extension of the time of payment of any
Receivable, (ii) compromise or settle any Receivable for less than the full
amount thereof, (iii) release, wholly or partially, any Person liable for the
payment of any Receivable, (iv) allow any credit or discount whatsoever on any
Receivable or (v) amend, supplement or modify any Receivable in any manner that
could adversely affect the value thereof,
(b) Such Grantor will deliver to the Lender a copy of each
material demand, notice or document received by it that questions or calls into
doubt the validity or enforceability of more than 5% of the aggregate amount of
the then outstanding Receivables of the Borrower.
5.10 INTELLECTUAL PROPERTY. For so long as no Event of Default has
occurred and is continuing, such Grantor shall protect and enhance the value of
all Intellectual Property in accordance with prudent business practices;
PROVIDED that at no time shall Borrower permit the tradename "Xxxxx & Xxxxx" to
be abandoned or altered in any manner. Upon the occurrence and during the
continuance of an Event of Default:
(a) Such Grantor (either itself or through its licensees) will
(i) continue to use
14
each material Trademark now or hereafter owned or used by such Grantor in order
to maintain such material Trademark in full force free from any claim of
abandonment for non-use, (ii) maintain as in the past the quality of products
and services offered under such Trademark, (iii) use such Trademark with the
appropriate notice of registration and all other notices and legends required by
applicable Requirements of Law, (iv) not adopt or use any xxxx which is
confusingly similar or a colorable imitation of such material Trademark unless
the Lender shall obtain a perfected security interest in such xxxx pursuant to
this Agreement, and (v) not (and not permit any licensee or sublicensee thereof
to) do any act or knowingly omit to do any act whereby such material Trademark
may become invalidated or impaired in any way.
(b) Such Grantor (either itself or through its licensees) will
not do any act, or omit to do any act, whereby any material Patent owned or used
by such Grantor may become forfeited, abandoned or dedicated to the public.
(c) Such Grantor (either itself or through its licensees) (i)
will employ each material Copyright owned or used by such Grantor and (ii) will
not (and will not permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any material portion of such Copyrights may
become invalidated or otherwise impaired. Such Grantor will not (either itself
or through its licensees) do any act whereby any material portion of such
Copyrights may fall into the public domain.
(d) Such Grantor (either itself or through licensees) will not
do any act that knowingly uses any material Intellectual Property owned or used
by such Grantor to infringe the intellectual property rights of any other
Person.
(e) Such Grantor will notify the Lender immediately if it
knows, or has reason to know, that any application or registration relating to
any material Intellectual Property owned or used by such Grantor may become
forfeited, abandoned or dedicated to the public, or of any adverse determination
or development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court or tribunal in
any country) regarding such Grantor's ownership of, or the validity of, any
material Intellectual Property owned or used by such Grantor or such Grantor's
right to register the same or to own and maintain the same.
(f) Whenever such Grantor, either by itself or through any
agent, employee, licensee or designee, shall file an application for the
registration of any Intellectual Property with the United States Patent and
Trademark Office, the United States Copyright Office or any similar office or
agency in any other country or any political subdivision thereof, such Grantor
shall report such filing to the Lender within five (5) Business Days after the
last day of the fiscal quarter in which such filing occurs. Upon request of the
Lender, such Grantor shall execute and deliver, and have recorded, any and all
agreements, instruments, documents, and papers as the Lender may request to
evidence the Lender's and the Lender' security interest in any Copyright, Patent
or Trademark and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby.
15
(g) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of the material Intellectual Property, including,
without limitation, as to Trademarks, filing of applications for renewal,
affidavits of use and affidavits of incontestability and, as to Patents, paying
maintenance fees.
(h) In the event that any material Intellectual Property owned
or used by such Grantor is infringed, misappropriated or diluted by a third
party, such Grantor shall (i) take such actions as such Grantor shall reasonably
deem appropriate under the circumstances to protect such Intellectual Property
and (ii) if such Intellectual Property is of material economic value, promptly
notify the Lender after it learns thereof and xxx for infringement,
misappropriation or dilution, to seek injunctive relief where appropriate and to
recover any and all damages for such infringement, misappropriation or dilution.
SECTION 6. REMEDIAL PROVISIONS
6.1 CERTAIN MATTERS RELATING TO RECEIVABLES. (a) Except as provided in
the Credit Agreement, at any time and from time to time after the occurrence and
during the continuance of an Event of Default, the Lender shall have the right
to make test verifications of the Receivables in any manner and through any
medium that it reasonably considers advisable, and each Grantor shall furnish
all such assistance and information as the Lender may require in connection with
such test verifications. At any time and from time to time after the occurrence
and during the continuation of an Event of Default, upon the Lender's request
and at the expense of the relevant Grantor, such Grantor shall cause independent
public accountants or others satisfactory to the Lender to furnish to the Lender
reports showing reconciliations, aging and test verifications of, and trial
balances for, the Receivables. Notwithstanding anything else to the contrary
contained herein, at any time other than during the occurrence and continuation
of an Event of Default, at the expense of the Lender, (i) the Lender shall have
the right to make test verifications of the Receivables in any manner and
through any medium that it reasonably considers advisable, and each Grantor
shall furnish all such assistance and information as the Lender may require in
connection with such test verifications, and (ii) upon the Lender's request such
Grantor shall cause independent public accountants or others satisfactory to the
Lender to furnish to the Lender reports showing reconciliations, aging and test
verifications of, and trial balances for, the Receivables.
(b) Except as provided in the Credit Agreement, the Lender
hereby authorizes each Grantor to collect such Grantor's Receivables, subject to
the Lender's direction and control and the Lender may curtail or terminate said
authority at any time after the occurrence and during the continuance of an
Event of Default. At Lender's request, any payments of Receivables, when
collected by any Grantor, (i) shall be forthwith (and, in any event, within two
Business Days) deposited by such Grantor in the exact form received, duly
endorsed by such Grantor to the Lender if required, in a Collateral Account
maintained under the
16
sole dominion and control of the Lender, subject to withdrawal by the Lender for
the account of the Lender only as provided in Section 6.5, and (ii) until so
turned over, shall be held by such Grantor in trust for the Lender, segregated
from other funds of such Grantor. Each such deposit of Proceeds of Receivables
shall be accompanied by a report identifying in reasonable detail the nature and
source of the payments included in the deposit.
(c) At the Lender's request, each Grantor shall deliver to the
Lender all original and other documents evidencing, and relating to, the
agreements and transactions which gave rise to the Receivables, including,
without limitation, all original orders, invoices and shipping receipts.
6.2 COMMUNICATIONS WITH OBLIGORS; GRANTORS REMAIN LIABLE. (a) Except
as provided in the Credit Agreement, the Lender in its own name or in the name
of others may at any time after the occurrence and during the continuance of an
Event of Default communicate with obligors under the Receivables to verify the
existence, amount and terms of any Receivables.
(b) Upon the request of the Lender at any time after the
occurrence and during the continuance of an Event of Default, each Grantor shall
notify obligors on the Receivables that the Receivables have been assigned to
the Lender and that payments in respect thereof shall be made directly to the
Lender.
(c) Anything herein to the contrary notwithstanding, each
Grantor shall remain liable under each of the Receivables to observe and perform
all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise
thereto. Lender shall not have any obligation or liability under any Receivable
(or any agreement giving rise thereto) by reason of or arising out of this
Agreement or the receipt by Lender of any payment relating thereto, nor shall
Lender be obligated in any manner to perform any of the obligations of any
Grantor under or pursuant to any Receivable (or any agreement giving rise
thereto), to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any
performance by any party thereunder, to present or file any claim, to take any
action to enforce any performance or to collect the payment of any amounts which
may have been assigned to it or to which it may be entitled at any time or
times.
6.3 PLEDGED STOCK. (a) Unless an Event of Default shall have occurred
and be continuing and Lender shall have given notice to the relevant Grantor of
its intent to exercise its corresponding rights pursuant to Section 6.3(b), each
Grantor shall be permitted to receive all cash dividends paid in respect of the
Pledged Stock and all payments made in respect of the Pledged Notes, in each
case paid in the normal course of business of the relevant Issuer and consistent
with past practice, to the extent permitted in the Security Agreement, and to
exercise all voting and corporate rights with respect to the Pledged Securities;
PROVIDED, HOWEVER, that no vote shall be cast or corporate right exercised or
other action taken which would be inconsistent with or result in any violation
of any provision of the Security Agreement, this Agreement or any other Loan
Document.
17
(b) If an Event of Default shall occur and be continuing and
Lender shall give notice of its intent to exercise such rights to the relevant
Grantor or Grantors, (i) the Lender shall have the right to receive any and all
cash dividends, payments or other Proceeds paid in respect of the Pledged
Securities and make application thereof to the Obligations in such order as it
may determine, and (ii) any or all of the Pledged Securities shall be registered
in the name of Lender and Lender may thereafter exercise (x) all voting,
corporate and other rights pertaining to such Pledged Securities at any meeting
of shareholders of the relevant Issuer or Issuers or otherwise and (y) any and
all rights of conversion, exchange and subscription and any other rights,
privileges or options pertaining to such Pledged Securities as if it were the
absolute owner thereof (including, without limitation, the right to exchange at
its discretion any and all of the Pledged Securities upon the merger,
consolidation reorganization, recapitalization or other fundamental change in
the corporate structure of any Issuer, or upon the exercise by any Grantor or
Lender of any right, privilege or option pertaining to such Pledged Securities,
and in connection therewith, the right to deposit and deliver any and all of the
Pledged Securities with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and condition as Lender may determine),
all without liability except to account for property actually received by it,
but Lender shall have no duty to any Grantor to exercise any such right,
privilege or option and shall not be responsible for any failure to do so or
delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of
any Pledged Securities pledged by such Grantor hereunder to (i) comply with any
instruction received by it from Lender in writing that (x) states that an Event
of Default has occurred and is continuing and (y) is otherwise in accordance
with the terms of this Agreement, without any other or further instructions from
such Grantor, and each Grantor agrees that each Issuer shall be fully protected
in so complying, and (ii) unless otherwise expressly permitted hereby, pay any
dividends or other payments with respect to the Pledged Securities directly to
Lender.
6.4 PROCEEDS TO BE TURNED OVER TO LENDER. If an Event of Default shall
occur and be continuing, in addition to the rights of Lender specified in
Section 6.1 with respect to payments of Receivables, all Proceeds received by
any Grantor consisting of cash, checks and other near-cash items shall be held
by such Grantor for Lender and shall, forthwith upon receipt by such Grantor and
upon the request of Lender, be turned over to the Lender in the exact form
received by such Grantor (duly indorsed by such Grantor to the Lender, if
required). All Proceeds received by the Lender hereunder shall be held by it in
a Collateral Account maintained under its sole dominion and control. All
Proceeds while held by Lender in a Collateral Account (or by such Grantor in
trust for the Lender and the Lender) shall continue to be held as collateral
security for all the Obligations and shall not constitute payment thereof until
applied as provided in Section 6.5.
6.5 APPLICATION OF PROCEEDS. If an Event of Default shall have
occurred and be continuing, Lender shall apply all or any part of Proceeds held
in any Collateral Account in payment of the Obligations in such order as it may
elect. Any balance of such Proceeds remaining after the Obligations shall have
been paid in full, over to the Borrower or to whomsoever may be lawfully
entitled to receive the same.
18
6.6 CODE AND OTHER REMEDIES. If an Event of Default shall occur and be
continuing, Lender may exercise, in addition to all other rights and remedies
granted to them in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies of
a secured party under the Illinois UCC or any other applicable law. Without
limiting the generality of the foregoing, the Lender, 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 any
Grantor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
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
Lender 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. Lender shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption in any Grantor, which right or equity is
hereby waived and released. Each Grantor further agrees, at Lender's request, to
assemble the Collateral and make it available to the Lender at places which the
Lender shall reasonably select, whether at such Grantor's premises or elsewhere.
It shall apply the net proceeds of any action taken by it pursuant to this
Section 6.6, after deducting all reasonable costs and expenses of every kind
incurred in connection therewith or incidental to the care or safekeeping of any
of the Collateral or in any way relating to the Collateral or the rights of
Lender hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations, in such
order as the Lender may elect, and only after such application and after the
payment by the Lender of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Illinois UCC, need the
Lender account for the surplus, if any, to any Grantor. To the extent permitted
by applicable law, each Grantor waives all claims, damages and demands it may
acquire against Lender arising out of the reasonable exercise by it of any
rights hereunder. 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.
SECTION 7. MISCELLANEOUS
7.1 AMENDMENTS IN WRITING. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with the Security Agreement.
7.2 NOTICES. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing, shall be addressed as follows and for each Guarantor
as set forth on Schedule I, and shall be either (i) personally delivered to the
party, (ii) sent by U.S. registered or certified mail, (iii) sent by a reputable
express mail company which guarantees next day delivery, or (iv) telecopied to
the respective telecopier numbers set forth herein. Any party may redesignate
the address or telecopier number
19
to which notices are to be sent to it by written notice to the other parties.
Notwithstanding the foregoing, any notice which is in fact received shall be
deemed to have been delivered pursuant to this Section, even if such delivery is
not accomplished in accordance with this Section.
If to Lender:
KOJAIAN FUNDING, L.L.C.
c/o Kojaian Management Company'
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000-0000
Attn: C. Xxxxxxx Xxxxxxx
Telecopier No. (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxxx Xxxxxxx, P.L.C.
000 Xxxx Xxxxx Xxxx - Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopier No. (000) 000-0000
If to Borrower: Xxxxx & Xxxxx Company
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Telecopier No. (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxx, Xxxx & Brandeis, LLP
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: __________________________
Telecopier No. (000) 000-0000
7.3 NO WAIVER BY COURSE OF CONDUCT. CUMULATIVE REMEDIES. Lender shall
not by any act (except by a written instrument pursuant to Section 7.1), 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. No failure
to exercise, nor any delay in exercising, on the part of Lender, 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 Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or
20
remedy which Lender 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 other rights or remedies provided by law.
7.4 ENFORCEMENT EXPENSES: INDEMNIFICATION. (a) To the same extent as
the Borrower would be required to do so pursuant to the Security Agreement, each
Guarantor agrees to pay or reimburse Lender for all its reasonable costs and
expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Agreement and the other Loan Documents to which such Guarantor is a party,
including, without limitation, the fees and disbursements of counsel to Lender.
(b) To the same extent as the Borrower would be required to do
so pursuant to the Security Agreement, each Guarantor agrees to pay, and to save
the Lender harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save Lender harmless
from, any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement to the same extent as the Borrower would be
required to do so pursuant the Security Agreement.
(d) The agreements in this Section 7.4 shall survive repayment
of the Obligations and all other amounts payable under the Security Agreement
and the other Loan Documents.
7.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of Lender
and its successors and assigns; PROVIDED that no Grantor may assign, transfer or
delegate any of its rights or obligations under this Agreement without the prior
written consent of Lender.
7.6 SET-OFF. Each Grantor hereby irrevocably authorizes Lender at any
time and from time to time without notice to such Grantor or any other Grantor,
any such notice being expressly waived by each Grantor, to set-off and
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by Lender to or for
the credit or the account of such Grantor, or any part thereof in such amounts
as Lender may elect, against and on account of the obligations and liabilities
of such Grantor to Lender hereunder and claims of every nature and description
of Lender against such Grantor, in any currency, whether arising hereunder,
under the Security Agreement any other Loan Document or otherwise, as Lender may
elect, whether or Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. Lender shall
notify such Grantor
21
promptly of any such set-off and the application made by Lender of the proceeds
thereof, PROVIDED that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of Lender under this
Section 7.6 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which Lender may have.
7.7 COUNTERPARTS. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
7.8 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.
7.9 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.
7.10 INTEGRATION. This Agreement and the other Loan Documents represent
the agreement of the Grantors and the Lender with respect to the subject matter
hereof and thereof, and there are no promises, undertakings, representations or
warranties by Lender relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Loan Documents.
7.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS WITHOUT
REGARD FOR ITS CONFLICTS OF LAW PRINCIPLES.
7.12 SUBMISSION TO JURISDICTION: WAIVERS, Each Grantor and Lender
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 judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of Illinois, the courts of the United States of
America for the Northern District of Illinois, 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 court 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
22
similar form of mail), postage prepaid, to such Grantor at its address
referred to in Section 7.2 or at such other address of which the Lender
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 any special, exemplary, punitive or
consequential damages.
7.13 ACKNOWLEDGMENTS. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents to
which it is a party;
(b) Lender has no fiduciary relationship with or duty to any
Grantor arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between the Grantors and
Lender is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lender or among the Grantors and the Lender.
7.14 WAIVER OF JURY TRIAL. EACH GRANTOR AND LENDER HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
7.15 ADDITIONAL GRANTORS. Each future Subsidiary of the Borrower shall
become a Grantor for all purposes of this Agreement upon execution and delivery
by such Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.
7.16 RELEASES, (a) At such time as the Loans, the Reimbursement
Obligations and the other Obligations shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be outstanding,
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 Lender and each 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 Grantors. At the request and sole
expense of any Grantor following any such termination, Lender shall deliver to
such Grantor any Collateral held by Lender hereunder, and execute and deliver to
such Grantor such documents (including, without limitation, UCC termination
statements) as such Grantor shall reasonably request to evidence such
termination.
23
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Grantor in a transaction permitted by the Security
Agreement, then the Lender, at the request and sole expense of such Grantor,
shall execute and deliver to such Grantor all releases or other documents
reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral, including, without limitation, amendments to UCC financing
statements. At the request and sole expense of the Borrower, a Guarantor shall
be released from its obligations hereunder in the event that all the Capital
Stock of such Guarantor shall be sold, transferred or otherwise disposed of in a
transaction permitted by the Security Agreement; PROVIDED that the Borrower
shall have delivered to Lender at least ten Business Days prior to the date of
the proposed release, a written request for release identifying the relevant
Guarantor and the terms of the sale or other disposition in reasonable detail,
including the price thereof and any expenses in connection therewith, together
with a certification by the Borrower stating that such transaction is in
compliance with the Security Agreement and the other Loan Documents.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
- SIGNATURE PAGE FOLLOWS -
24
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and
Collateral Agreement to be duly executed and delivered as of the date first
above written.
XXXXX & XXXXX COMPANY, a Delaware
corporation
By:
----------------------------------------
Title:
-------------------------------------
XXXXX & XXXXX NEW YORK, a New York
corporation
By:
----------------------------------------
Title:
-------------------------------------
XXXXX & XXXXX OF MICHIGAN, a Michigan
corporation
By:
----------------------------------------
Title:
-------------------------------------
XXXXX & XXXXX OF OREGON, INC., a Washington
corporation
By:
----------------------------------------
Title:
-------------------------------------
XXXXX & XXXXX AFFILIATES, INC., a Delaware
corporation
By:
----------------------------------------
Title:
-------------------------------------
25
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
and Collateral Agreement to be duly executed and delivered as of the date first
above written.
XXXXX & XXXXX EUROPE, INC., a California
corporation
By:
----------------------------------------
Title:
-------------------------------------
XXXXX & XXXXX MORTGAGE GROUP, INC., a
California corporation
By:
----------------------------------------
Title:
-------------------------------------
XXXXX & XXXXX MANAGEMENT SERVICES, INC.,
a Delaware corporation
By:
----------------------------------------
Title:
-------------------------------------
XXXXX & XXXXX CONSULTING SERVICES
COMPANY, a Florida corporation
By:
----------------------------------------
Title:
-------------------------------------
XXXXXXXX HOSPITALITY INTERNATIONAL,
INC., a Delaware corporation
By:
----------------------------------------
Title:
-------------------------------------
XXXXX & XXXXX MANAGEMENT SERVICES
OF MICHIGAN, INC., a Michigan corporation
By:
----------------------------------------
Title:
-------------------------------------
26
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and
Collateral Agreement to be duly executed and delivered as of the date first
above written.
HSM, INC., a Texas corporation
By:
----------------------------------------
Title:
-------------------------------------
27
GUARANTEE AND COLLATERAL AGREEMENT
SCHEDULE 1
NOTICE ADDRESSES OF GUARANTORS
[NAME OF GUARANTOR(S)]
c/x Xxxxx & Xxxxx Company
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
28
GUARANTEE AND COLLATERAL AGREEMENT
SCHEDULE 2
DESCRIPTION OF PLEDGED SECURITIES
SECURITIES PLEDGED BY XXXXX & XXXXX COMPANY
JURISDICTION OF AUTHORIZED OUTSTANDING SHARES HELD
INCORPORATION SHARES SHARES* BY PLEDGOR*
--------------- ---------- ----------- -----------
Xxxxx & Xxxxx Affiliates, Inc. Delaware 3,000 500 500
Xxxxx & Xxxxx Europe, Inc. California 1,000 100 100
Xxxxx & Xxxxx Management Services, Inc. Delaware 195,000 95,000 95,000
Xxxxx & Xxxxx Mortgage Group, Inc. California 1,000 10 10
Xxxxx & Xxxxx New York, Inc. New York 1,000 10 10
Xxxxx & Xxxxx of Oregon, Inc. Washington 50,000 1,000 1,000
(changing its name to "Xxxxx & Xxxxx of Arizona, Inc." as of May 12 or 13, 2003)
Xxxxx & Xxxxx of Michigan, Inc. Michigan 1,000 10 10
Xxxxx & Xxxxx Consulting Services Company Florida 1,000 510 510
HSM Inc. Texas 1,500,000 800,000 800,000
Aequus Property Management Company Texas 1,000,000 1,000 1,000
Xxxxx & Xxxxx Asset Services Company Delaware 1,000 10 10
Xxxxx & Xxxxx Institutional Properties, Inc. California 10,000 10 10
Xxxxx & Xxxxx Mortgage Services, Inc. California 50,000 1,060 1,060
Xxxxx & Xxxxx of Nevada, Inc. Nevada 100,000 10 10
* Common stock. No shares of capital stock are held in treasury.
The Administrative Agent is in physical possession of all stock certificates
delivered pursuant to the Credit Agreement.
29
SECURITIES PLEDGED BY XXXXX & XXXXX COMPANY (cont.)
JURISDICTION OF AUTHORIZED OUTSTANDING SHARES HELD
INCORPORATION SHARES SHARES* BY PLEDGOR*
--------------- ---------- ----------- -----------
Xxxxx & Xxxxx Realty Advisers, Inc. California 25,000 6,350 6,350
Xxxxx & Xxxxx Southeast Partners, Inc. California 1,000 10 10
Leggat XxXxxx/Xxxxx & Xxxxx, Inc. Massachusetts 1,000 100 100
The Xxxxxx Commercial Brokerage Company Colorado 50,000 50,000 50,000
White Commercial Real Estate California 10,000 2,500 2,500
Wm. X. Xxxxx/Xxxxx & Xxxxx, Inc. New York 10,000 3,552 3,552
Wm. X. Xxxxx/Xxxxxxx East, Inc. New York 200 200 200
SECURITIES PLEDGED BY XXXXX & XXXXX MANAGEMENT SERVICES, INC.
JURISDICTION OF AUTHORIZED OUTSTANDING SHARES OWNED
SUBSIDIARY ISSUER INCORPORATION SHARES SHARES* BY PLEDGOR*
----------------- --------------- ---------- ----------- -----------
Xxxxx & Xxxxx Management Services of Michigan, Inc. Michigan 1,000 10 10
Crane Realty & Management Co. California 25,000 475 475
Xxxxx & Xxxxx Management Services of Canada, Inc. Canada 100,000 100 100**
* Common stock. No shares of capital stock are held in treasury.
** 66 of these shares will be pledged.
The Administrative Agent is in physical possession of all stock certificates
delivered pursuant to the Credit Agreement.
30
SECURITIES PLEDGED BY HSM INC.
JURISDICTION OF AUTHORIZED OUTSTANDING SHARES OWNED
SUBSIDIARY ISSUER INCORPORATION SHARES SHARES* BY PLEDGOR*
----------------- --------------- ---------- ----------- -----------
CORPORATIONS
Xxxxx X. Xxxxxx Financial Corporation Texas 10,000 1,000 1,000
HSM Condominium Corporation Texas 1,000 1,000 1,000
HSM Real Estate Securities Corporation Texas 100,000 12,500 12,500
Xxxxxx Capital Corporation Texas 10,000 10,000 10,000
Xxxxxx Real Estate Services Corporation Texas 10,000 10,000 10,000
* Common stock. No shares of capital stock are held in treasury.
The Administrative Agent is in physical possession of all stock certificates
delivered pursuant to the Credit Agreement.
31
GUARANTY AND COLLATERAL AGREEMENT
SCHEDULE 3
UCC FINANCING STATEMENTS
------------------------
--------------------------------------- -------------------------------------------- ------------------ --------------
DEBTOR JURISDICTION FILE NUMBER FILE DATE
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, Arizona
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, California
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, Colorado
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, Connecticut
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Recorder of Deeds, District of Columbia
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, Florida
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Xxxxxx County, Georgia
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, Illinois
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, Maine
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, Maryland
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of the Commonwealth,
Massachusetts
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Town Clerk, Boston, Massachusetts
Town Clerk, Newton, Massachusetts
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, Minnesota
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, New Jersey
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, New York
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Xxx Xxxx Xxxxxx, Xxx Xxxx
Xxxxxxx Xxxxxx, Xxx Xxxx
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, Ohio
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Cuyahoga County, Ohio
Xxxxxxxx County, Ohio
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, Oregon
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of Commonwealth, Pennsylvania
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Allegheny County, Pennsylvania
Philadelphia County, Pennsylvania
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of Sate, Texas
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of Commonwealth, Virginia
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Fairfax County, Virginia
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Company Secretary of State, Washington
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, Arizona
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, California
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, Colorado
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, Connecticut
--------------------------------------- -------------------------------------------- ------------------ --------------
32
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, Florida
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Xxxxxx County, Georgia
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, Illinois
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, Maryland
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of the Commonwealth, Massachusetts
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Town Clerk, Boston, Massachusetts
Town Clerk, Newton, Massachusetts
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, Minnesota
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, Missouri
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Saint Louis County, Missouri
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Town Clerk, Saint Louis City, Missouri
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, New Jersey
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, New York
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Xxx Xxxx Xxxxxx, Xxx Xxxx
Xxxxxxx Xxxxxx, Xxx Xxxx
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, Ohio
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Cuyahoga County, Ohio
Xxxxxxxx County, Ohio
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, Oregon
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of the Commonwealth, Pennsylvania
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Allegheny County, Pennsylvania
Philadelphia County, Pennsylvania
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, Texas
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of the Commonwealth, Virginia
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Fairfax County, Virginia
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services, Inc. Secretary of State, Washington
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services of Secretary of State, Colorado
Colorado, Inc.
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Management Services of Secretary of State, Michigan
Michigan, Inc.
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx of Michigan, Inc. Secretary of State, Michigan
--------------------------------------- -------------------------------------------- ------------------ --------------
33
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx New York, Inc. Secretary of State, New York
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx New York, Inc. New York County, New York
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx of Oregon, Inc. (name Secretary of State, Oregon
changes to "Xxxxx & Xxxxx of Arizona,
Inc. as of May 12 or 13, 2003)
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx of Oregon, Inc. (name Secretary of State, Washington
changes to "Xxxxx & Xxxxx of Arizona,
Inc. as of May 12 or 13, 2003)
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx of Oregon, Inc. (name Secretary of State, Arizona
changes to "Xxxxx & Xxxxx of Arizona,
Inc. as of May 12 or 13, 2003)
--------------------------------------- -------------------------------------------- ------------------ --------------
Wm. X. Xxxxx/Xxxxx & Xxxxx, Inc. Secretary of State, New York
--------------------------------------- -------------------------------------------- ------------------ --------------
Wm. X. Xxxxx/Xxxxx & Xxxxx, Inc. Suffolk County, New York
--------------------------------------- -------------------------------------------- ------------------ --------------
HSM, Inc. Secretary of State, Texas
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Consulting Company Secretary of State, Florida
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Consulting Company Secretary of State, Illinois
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Consulting Company Secretary of State, New York
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Consulting Company New York County, New York
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Affiliates, Inc. Secretary of State, California
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Affiliates, Inc. Secretary of State, Illinois
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Europe, Inc. Secretary of State, California
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Mortgage Group, Inc. Secretary of State, Arizona
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Mortgage Group, Inc. Secretary of State, California
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Mortgage Group, Inc. Recorder of Deeds, District of Columbia
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Mortgage Group, Inc. Secretary of State, Illinois
--------------------------------------- -------------------------------------------- ------------------ --------------
Xxxxx & Xxxxx Mortgage Group, Inc. Secretary of State, Texas
--------------------------------------- -------------------------------------------- ------------------ --------------
34
GUARANTEE AND COLLATERAL AGREEMENT
SCHEDULE 4
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE OF GRANTORS
A. LOCATION OF JURISDICTION OF ORGANIZATION:
Set forth in Schedule 2 to this agreement.
B. LOCATION OF CHIEF EXECUTIVE OFFICE OF GRANTORS:
Set forth in Schedule 5 to this agreement.
35
GUARANTEE AND COLLATERAL AGREEMENT
SCHEDULE 5
LOCATION OF INVENTORY AND EQUIPMENT
XXXXX & XXXXX COMPANY
I. The chief executive office of Xxxxx & Xxxxx Company (the
"Grantor") is located at:
0000 Xxxxxxx Xxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
2. The Grantor's true, full and corporate name is: Xxxxx & Xxxxx
Company. The Grantor uses no trade names or fictitious names, except the
following:
Xxxxx & Xxxxx of Florida
Leggat XxXxxx/Xxxxx & Xxxxx
Xxxxx & Xxxxx of Metropolitan Washington, D.C.
Wm. X. Xxxxx & Sons Management
Wm. X. Xxxxx-Redevco Management
HSM Properties, Inc.
3. All of the Grantor's personal property which has not been
delivered to the Bank pursuant to the terms of this Agreement or the Credit
Agreement is now, and will be at all future times, located at the Grantor's
chief executive officer as described in Paragraph 1 above, except as specified
below:
Arizona: 0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
0000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000-0000
California: 0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
00000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxx xx Xxxxxxxx, XX 00000-0000
0000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Xxxxx & Xxxxx Company (cont.)
36
0000 Xxxxxx-Xxxxxxx Xxxx
Xxxxxxx Xxx, XX 00000
0000 Xxxxxxxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
00000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
0000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000-0000
00000 Xxxxx Xxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
0000 XxxXxxxxx Xxxx.
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000-0000
0000 Xxxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
000 X. Xxxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000-0000
0000 Xxxxx Xxx, Xxx. 000
Xxxxxxxxxx, XX 00000-0000
000 X Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
0000 X Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxx & Xxxxx Company (cont.)
37
0000 Xxx Xxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000-0000
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
0000 X. Xxxxx Xx.
Xxx. 000
Xxx Xxxx, XX 00000-0000
000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
000 Xxxxxxx Xx.
Xxxxx Xxxxxxx, XX 00000-0000
000 X. Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
0000 Xxxxxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
00000 Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxx Xxxx, XX 00000-0000
0000 Xxxxxxxxxxx Xxxxx
Xxxxx 0
Xxxxxxxx, XX 00000-0000
00000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
00000 Xxxxxxxxxx Xxx.
Xxx. 000
Xxxxxxxxxxx, XX 00000
00-000 Xxxxxxx 000
Xxxxx X
Xxxxxx Xxxxxx, XX 00000-0000
00000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Xxxxx & Xxxxx Company (cont.)
38
0000 X. Xxxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxx Xxxxx, XX 00000-0000
Colorado: 1200 l7th St.
Ste. 0000
Xxx Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Connecticut: 0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
0000 Xxxxxx Xx.
Xxxxxxxx, XX 00000-0000
District of Columbia 0000 Xxxxxxxxxxxx Xxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
0000 Xxxxxxxxxxx Xxx., X.X.
Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
0000 Xxxxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Florida: 0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
000 Xxxxxxxx Xxx.
Xxxxx 0000
Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
000 X. Xxxxxxxx Xx.
Xxx. 000
Xxxxxxx, XX 00000
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxx, XX 00000
0000 XX 0xx Xxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Xxxxx & Xxxxx Company (cont.)
39
0000 Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000-0000
Georgia: 000 Xxxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Illinois: 000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
00000 Xxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Maine: Xxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Maryland: 0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Massachusetts: Xxx Xxxxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx, XX 00000-0000
Two Xxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxx Xxxxx, XX 00000-0000
Minnesota: 0000 Xxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
New Jersey: 0 Xxxxxxxx Xxx
Xxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxxx, XX 00000
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx Xxxxx XXX
Xxxxxx, XX 00000-0000
Xxxxx & Xxxxx Company (cont.)
40
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
New York: 00 X 00xx Xx.
Xxx Xxxx, XX 00000-0000
00 Xxxxxxxxxxx Xx.
Xxxxxxxx, XX 00000-0000
Ohio: 0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 44 115-1815
0000 Xxxxxxxx-Xxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Oregon: 0000 XX Xxxxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000-0000
Pennsylvania: 0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000-0000
000 Xxx XXX Xxxxx
Xxxxxxxxxx, XX 00000-0000
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx Xxxxxxx
Xxxx xx Xxxxxxx, XX 00000-0000
Texas: 00000 Xxxxxxx Xx.
0000 Xxxxxxxxx Xxxxx XX
Xxxxxx, XX 00000
0000 Xxxxxxxxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxx Xxxxx, XX 00000-0000
0000 Xxxx Xxx Xxxx.
Xxxxx 0000
Xxxxxxx, XX 00000-0000
0000 X.X. Xxxx 000
Xxx Xxxxxxx, XX 00000
Xxxxx & Xxxxx Company (cont.)
41
00 XX Xxxx 000
Xxxxx 000
Xxx Xxxxxxx, XX 00000-0000
0000 XX Xxxx 0x0
Xxx Xxxxxxx, XX 00000
Virginia: 0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000-0000
0000 Xxxxxx Xxxxxxx Xxxx.
Xxxxx 000
XxXxxx, XX 00000
Washington 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
42
XXXXX & XXXXX MANAGEMENT SERVICES, INC.
1. The chief executive office of Xxxxx & Xxxxx Management Services,
Inc. (the "Grantor") is located at:
0000 Xxxxxxx Xxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
2. The Grantor's true, full and corporate name is: Xxxxx & Xxxxx
Management Services, Inc. The Grantor uses no trade names or fictitious names
except as follows:
Xxxxx & Xxxxx Management Services, Inc. of Delaware
Commercial Construction Group
3. All of the Grantor's personal property which has not been
delivered to the Bank pursuant to the terms of this Agreement or the Credit
Agreement is now, and will be at all future times, located at the Grantor's
chief executive office as described in Paragraph 1 above, except as specified
below:
Arizona: 0000 Xxxxx Xxxxxxx Xxxxxx
Xxx. X-x00
Xxxxxxx, XX 00000
0000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 8571 1-7407
California: 00000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxx xx Xxxxxxxx, XX 00000
0000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
00000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 0 0000-0000
000 Xxxxx Xx.
Xxx. 000
Xxx Xxxxxxxxx, XX 00000
0000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
000 X. Xxxxx Xxxxxxx Xxxx.
Xxx. 000
Xxxxxx, XX 00000-0000
Xxxxx & Xxxxx Management Services, Inc. (cont.)
43
0000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
00000 Xxxxxxxxxx Xx.
Xxxx Xxxxxx, XX 00000
000 Xxxx Xxx.
Xxxxx 000
Xxxxxxxxxx, A 00000
000X Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
00000 Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxxx Xxxx, XX 00000
19191 5. Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
00000 Xxxxx Xxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Colorado: 0000 00xx Xxxxxx
Xxx Xxxxxx Xxxxxx #0000
Xxxxxx, XX 00000-0000
Connecticut: 0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
0000 Xxxxxx Xx.
Xxxxxxxx, XX 00000-0000
Florida: 0000 Xxxxx Xxxxx Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxx, XX 00000-0000
Georgia: 000 Xxxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxx & Xxxxx Management Services, Inc. (cont.)
44
000 Xxxxxxxx Xxxx Xx. XX
Xxx. X
Xxxxxxxx, XX 0 0000-0000
Illinois: 000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
00000 X. Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Maryland: 0000 Xxxx Xxxxxx Xx.
Xxx. 000
Xxxxxxxx, XX 00000-0000
0000 Xxxxxxxxx Xx.
Xxxxxxxx, XX 000000-0000
Massachusetts: Xxx Xxxxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxx, XX 00000-0000
00 Xxxxxx Xx.
Xxxxxxx, XX 00000
Two Xxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxx Xxxxx, XX 00000
Minnesota: 0000 Xxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
000 Xxxxxxx 000
Xxx. 0000
Xx. Xxxxx Xxxx, XX 00000-0000
Missouri: 000 X. Xxxxxxxxxxxx Xxxx.
Xxxxx Xxxx Xxxxx
Xx. Xxxxx, XX 00000-0000
Ohio: 000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
0 X Xxxx Xxxxxx
Xxx. 000
Xxxxxx, XX 00000-0000
Xxxxx & Xxxxx Management Services, Inc. (cont.)
45
00 Xxxxxxxx Xx.
Xxx. 000
Xxxxxxxxxx, XX 00000
0000 Xxxxxx Xxxxxx
Xxx. 000
Xxxxxxxxx, XX 00000-0000
Oregon: 0000 XX Xxxxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000-0 000
Xxx Xxxxxx: 000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
000 Xxxxxxx Xxx.
Xxxxxxxxx, XX 00000
0 Xxxxxxxx Xxx
Xxxxxxxxx, XX 00000
New York 00 Xxxxxx Xxxxx
Xxxxxx, XX
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx,Xxxx,XX 10022-1112
000 Xxxxxxxx Xx.
Xxxxx, Xxx. 000
Xxxxxxxxxxxx, XX 00000-0000
Pennsylvania: 0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000-0000
000 Xxx XXX Xxxxx
Xxxxxxxxxx, XX 00000-0000
Texas: 1600 Two Lincoln Centre
0000 XXX Xxxxxxx
Xxxxxx, XX 00000-0000
00000 Xxxxxxx Xx
0000 Xxxxxxxxx Xxxxx XX
Xxxxxx, XX 00000
0000 XX Xxxx 0 00
Xxx Xxxxxxx, XX 00000
Xxxxx & Xxxxx Management Services, Inc. (cont.)
46
0000 Xxxxx Xx
0xx Xxxxx
Xxxxxx, XX 00000
0000 Xxxx Xxx Xxxx.
Xxxxx 0000
Xxxxxxx, XX 00000-0000
00 XX Xxxx 000
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Virginia: 0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxx X000
Xxxxxx, XX 00000-0000
0000 Xxxxxxxx Xxxx
Xxx. 000
Xxxxxx, XX 00000-0000
00000 Xxxxxxx Xxxxx Xx.
Xxxxx X0
Xxxx Xxxxxxxx, XX 00000
0000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
00000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
0000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
47
XXXXX & XXXXX AFFILIATES, INC.
1. The chief executive office of Xxxxx & Xxxxx Affiliates, Inc. (the
"Grantor") is located at:
0000 Xxxxxxx Xxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
2. The Grantor's true, full and corporate name is: Xxxxx & Xxxxx
Affiliates, Inc. The Grantor uses no trade names or fictitious names.
3. All of the Grantor's personal property which has not been
delivered to the Bank pursuant to the terms of this Agreement or the Credit
Agreement is now, and will be at all future times, located at the Grantor's
chief executive office as described in Paragraph I above, except as specified
below:
000 X. Xxxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000-0000
48
XXXXX & XXXXX EUROPE, INC.
1. The chief executive office of Xxxxx & Xxxxx Europe, Inc. (the
"Grantor") is located at:
000 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 1 AR
England
2. The Grantor's true, full and corporate name is: Xxxxx & Xxxxx
Europe, Inc. The Grantor uses no trade names or fictitious names.
3. All of the Grantor's personal property which has not been
delivered to the Bank pursuant to the terms of this Agreement or the Credit
Agreement is now, and will be at all future times, located at the Grantor's
chief executive office as described in Paragraph I above.
Belgium: 00 Xxxxxxxxxxxxxxxx
Xxxxxxx Xxxxxxxxx Office Park
1831 Diegem, Brussels
GRUBS & XXXXX MORTGAGE GROUP, INC.
1. The chief executive office of Xxxxx & Xxxxx Mortgage Group, Inc.
(the "Grantor") is located at:
0000 Xxxxxxx Xxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Xxxxx & Xxxxx Mortgage Group, Inc. (cont.)
2. The Grantor's true, full and corporate name is: Xxxxx & Xxxxx
Mortgage Group, Inc. The Grantor uses no trade names or fictitious names.
3. All of the Grantor's personal property which has not been
delivered to the Bank pursuant to the terms of this Agreement or the Credit
Agreement is now, and will be at all future times, located at the Grantor's
chief executive office as described in Paragraph I above, except as specified
below:
Arizona: 0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
0000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
49
California: 0000 Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
District of Columbia: 0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Texas: x000 Xxxx Xxx
Xxxxx 0000
Xxxxxxx, XX 00000
GRUBS & XXXXX NEW YORK, INC.
1. The chief executive office of Xxxxx & Xxxxx New York, Inc. (the
"Grantor") is located at:
Xxxxxxxxx Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
2. The Grantor's true, full and corporate name is: Xxxxx & Xxxxx New
York, Inc. The Grantor uses no trade names or fictitious names, except the
following:
Xxxxx Felt Appraisal and Consulting Services
Xxxxx & Xxxxx Appraisal & Consulting
3. All of the Grantor's personal property which has not been
delivered to the Bank pursuant to the terms of this Agreement or the Credit
Agreement is now, and will be at all future times, located at the Grantor's
chief executive office as described in Paragraph I above, except as specified
below:
New York: 00 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
GRUBS & XXXXX OF OREGON. INC.
NOTE: XXXXX & XXXXX OF OREGON, INC. IS CHANGING IT NAME TO "XXXXX & XXXXX OF
ARIZONA, INC." AS OF MAY 12 OR 13, 2003.
1. The chief executive office of Xxxxx & Xxxxx of Oregon. Inc. (the
"Grantor") is located at:
0000 XX Xxxxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
2. The Grantor's true, full and corporate name is: Xxxxx & Xxxxx of
Oregon, Inc. The Grantor uses no trade names or fictitious names.
50
3. All of the Grantor's personal property which has not been
delivered to the Bank pursuant to the terms of this Agreement or the Credit
Agreement is now, and will be at all future times, located at the Grantor's
chief executive office as described in Paragraph 1 above.
HSM INC.
1. The chief executive office of HSM Inc. (the "Grantor") is located
at:
00000 Xxxxxxx Xx.
0000 Xxxxxxxxx Xxxxx XX
Xxxxxx, XX 00000
2. The Grantor's true, full and corporate name is: HSM Inc. The
Grantor uses no trade names or fictitious names.
3. All of the Grantor's personal property which has not been
delivered to the Bank pursuant to the terms of this Agreement or the Credit
Agreement is now, and will be at all future times, located at the Grantor's
chief executive office as described in Paragraph 1 above.
XXXXX & XXXXX OF MICHIGAN, INC.
1. The chief executive office of Xxxxx & Xxxxx of Michigan, Inc. is
located at:
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
2. The Grantor's true, full and corporate name is: Xxxxx & Xxxxx of
Michigan, Inc. The Grantor uses no trade names or fictitious names except:
Xxxxx & Xxxxx Company
3. All of the Grantor's personal property which has not been
delivered to the Agent pursuant to the terms of this Agreement or the Credit
Agreement is now, and will be at all future times, located at the Grantor's
chief executive office as described in Paragraph (a) above, except as specified
below:
000 X. Xxxxx Xx.
Xxxxx 00
Xxx Xxxxx, XX 00000
GRUBS & XXXXX MANAGEMENT SERVICES OF MICHIGAN, INC.
1. The chief executive office of Xxxxx & Xxxxx Management Services of
Michigan, Inc. is located at:
51
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
2. The Grantor's true, full and corporate name is: Xxxxx & Xxxxx of
Michigan, Inc. The Grantor uses no trade names or fictitious names except:
Xxxxx & Xxxxx Management Services, Inc.
Xxxxx & Xxxxx Management Services of Michigan, Inc. (cont.)
3. All of the Grantor's personal property which has not been
delivered to the Agent pursuant to the terms of this Agreement or the Credit
Agreement is now, and will be at all future times, located at the Grantor's
chief executive office as described in Paragraph (a) above.
XXXXX & XXXXX CONSULTING SERVICES COMPANY
1. The chief executive office of Xxxxxxxx Realty Group, Inc. is
located at:
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
2. The Grantor's true, full and corporate name is: Xxxxxxxx Realty
Group, Inc. The Grantor uses no trade names or fictitious names except:
Xxxxxxxx Capital Markets Group
Market Flash
Xxxxxx Xxxxxxx Group, a Xxxxx & Xxxxx Company
3. All of the Grantor's personal property which has not been
delivered to the Agent pursuant to the terms of this Agreement or the Credit
Agreement is now, and will be at all future times, located at the Grantor's
chief executive office as described in Paragraph I above, except as specified
below:
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
000 Xxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
52
GUARANTEE AND COLLATERAL AGREEMENT
SCHEDULE 6
INTELLECTUAL PROPERTY
A. TRADEMARKS AND TRADENAMES
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
APPLICATION/
XXXX/COUNTRY REGISTRATION CLASS/GOODS/SERVICES CURRENT STATUS NEXT ACTION DUE
NO.
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
UNITED STATES
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
CIRCLE WITH DIAGONAL Registration No. Class 35: Facilities management Filed on 8/15/96 File Declaration of
DESIGN 2,185,311 services, namely, management of based on use since Use by 9/1/04;
(Black & White) security services, management of June 1994; Renew registration
environmental control services, Registered 9/1/98 by 9/1/08
management of provision of food
services, management of mailroom
services, and management of document
reproduction services, all for others;
Class 36: Real estate brokerage,
mortgage brokerage, insurance
consultation; real estate appraisal;
arranging for investment in real
estate syndications; real estate
portfolio and asset management
services; and property management
services;
Class 37: Construction management
services, and custodial management
services
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
53
------------------------- ------------------- ---------------------------------------- -------------------- ----------------------
APPLICATION/
XXXX/COUNTRY REGISTRATION CLASS/GOODS/SERVICES CURRENT STATUS NEXT ACTION DUE
NO.
------------------------- ------------------- ---------------------------------------- -------------------- ----------------------
CIRCLE WITH DIAGNONAL Registration No. Class 35: Facilities management Filed 8/26/96 File Declaration of
DESIGN 2,185,316 services, namely, management of based on use since Use by 9/1/04;
(Colors - Black/Yellow) security services, management of June 1994; Renew registration
environmental control services, Registered 9/1/98 by 9/1/08
management of provision of food
services, management of mailroom
services, and management of document
reproduction services, all for others;
Class 36: Real estate brokerage,
mortgage, brokerage, insurance
consultation; real estate appraisal;
arranging for investment in real
estate syndications; real estate
portfolio and asset management
services; and property management
services;
Class 37: Construction management
services, and custodial management
services
------------------------- ------------------- ---------------------------------------- -------------------- ----------------------
54
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
APPLICATION/
XXXX/COUNTRY REGISTRATION CLASS/GOODS/SERVICES CURRENT STATUS NEXT ACTION DUE
NO.
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
XXXXX & XXXXX Registration No. Class 35: Facilities management Filed 9/6/96 based File Declaration of
2,174,290 services, namely, management of on use since use by 7/21/04;
security services, management of 3/22/62; Renew registration
environmental control services, Registered 7/21/98 by
management of provision of food 7/21/08
services, management of mailroom
services, and management of document
reproduction services;
Class 36: Real estate brokerage,
mortgage brokerage, insurance
consultation, real estate appraisal,
arranging for investment in real
estate syndications, real estate
portfolio and asset management
services, and property management
services;
Class 37: Construction management
services and custodial management
services.
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
XXXXX & XXXXX PROPERTY Registration No. Class 35: Facilities management
SOLUTIONS WORLDWIDE 2,237,162 services, namely, management of
security services, management of
environmental control services,
management of provision of food
services, management of mailroom
services, and management of document
reproduction services, all for others;
Class 36: Real estate brokerage,
mortgage brokerage, insurance
consultation; real estate appraisal;
arranging for investment in real
estate syndications; real estate
portfolio and asset management
services; and property management
services;
Class 37: Construction management
services, and custodial management
services
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
55
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
APPLICATION/
XXXX/COUNTRY REGISTRATION CLASS/GOODS/SERVICES CURRENT STATUS NEXT ACTION DUE
NO.
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
XXXXX & XXXXX (and Registration No. Class 38: Real estate brokerage Registered 11/6/84;
Design) 1,304,099 services; mortgages brokerage Section 8
services; insurance brokerage Declaration of
services; insurance consulting Used accepted
services; real estate appraisal and
consulting services; property
management services; facilities
management services; arranging for
investment in real estate
syndications; and investment banking
services
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
XXXXXXXX Registration No. Class 36: Real estate appraisal, First use File transfer of
1,455,712 leasing and investment management 0/0/1946; filed ownership of xxxx
services; consultation services in the 5/22/86; to Xxxxx & Xxxxx
field of real estates. registered Company.
9/1/87. Assigned
by contract to
Xxxxx & Xxxxx
Company but
transfer not yet
registered with
PTO.
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
CANADA
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
XXXXX & XXXXX IN CIRCLE Application No. Real estate brokerage services; Filed 5/28/97; Confirm allowance
DESIGN 846,353 mortgage brokerage services; insurance Approval Notice of xxxx 6/3/03
consulting services; real estate issued 4/16/99*
appraisal and consulting services;
property management services;
facilities management services;
arranging for investment in real
estate syndications; construction
management services; and real estate
portfolio and asset management services
------------------------- -------------------- ---------------------------------------- -------------------- ---------------------
* Tentative approval subject to publication requirements.
56
------------------------- ------------------ --------------------------------------- --------------------- -----------------------
UNITED KINGDOM
------------------------- ------------------ --------------------------------------- --------------------- -----------------------
XXXXXXXX Registration No. Real estate appraisal, leasing and Filed 3/3/92; File transfer of
1492853 investment management services; Registration (same ownership of xxxx to
consultations related to real date): 3/3/92 Xxxxx & Xxxxx Company.
estates; all included in Class 36
------------------------- ------------------ --------------------------------------- --------------------- -----------------------
57
OTHER TRADENAMES AND MARKS
1. The following marks were assigned to Xxxxx & Xxxxx Company
pursuant to an Assignment of Proprietary Rights dated as of July 30, 1999
between Xxxxxxxx Associates, Inc. et al and Xxxxx & Xxxxx Company:
o Landauer Real Estate Counselors
o R-E-SEARCH
o xxx.x-x-xxxxxx.xxx
o internet domain name registration that incorporate or include the above
three marks, including, but not limited to:
o Xxxxxxxx.xxx
o X-X-XXXXXX.xxx
o XXXXXXXXXXXXXXX.xxx
o XXXXXXXXXXXXXXXXX.xxx
o X-X-XXXXXX.xxx
o XXXXXX-XXXXX.xxx
2. Tradenames of Xxxxx & Xxxxx Company and Subsidiaries which are the
subject of d/b/a filings, assumed name filings, or corporate name
reservation or other filings with state or county authorities:
Xxxxx & Xxxxx Company
Tradenames: Xxxxx & Xxxxx of Florida, Inc.
Leggat XxXxxx/Xxxxx & Xxxxx
Xxxxx & Xxxxx of Metropolitan Washington, D.C.
Win. X. Xxxxx & Sons Management
Win. X. Xxxxx-Redevco Management
Win. X. Xxxxx/Tishman East Inc.
HSM Properties, Inc.
Xxxxx & Xxxxx Commercial Brokerage
The Xxxxxx Commercial Brokerage Company
XXXXX & XXXXX OF MICHIGAN. INC.
Tradename: Xxxxx & Xxxxx Company
XXXXX & XXXXX MANAGEMENT SERVICES OF MICHIGAN, INC.
Tradename Xxxxx & Xxxxx Management Services, Inc.
58
XXXXX & XXXXX NEW YORK. INC.
Tradenames Xxxxx Felt Appraisal and Consulting Services
Xxxxx & Xxxxx Appraisal & Consulting
B. PATENTS OWNED
The following patent applications were assigned to Xxxxx & Xxxxx Company
pursuant to an Assignment of Proprietary Rights dated as of July 30, 1999
between Xxxxxxxx Associates, Inc. et al and Xxxxx & Xxxxx Company, but for which
ownership has not yet been transferred at the U.S. Patent and Trademark Office:
---------------------------------------- ----------------- ---------------------
Pending Patents Application No. Date of Application
---------------------------------------- ----------------- ---------------------
Method and System for Converting a
Markup Language file into a User
Productivity Application File 09/267,978 March 12, 1999
---------------------------------------- ----------------- ---------------------
Method and System for
Generating a User Defined
Markup Language Report 09/267,491 March 12, 1999
---------------------------------------- ----------------- ---------------------
C. COPYRIGHT REGISTRATIONS
No copyright registrations are owned by the Loan Parties.
B. LICENSING AGREEMENTS
The Loan Parties grant licenses to the tradenames and servicemarks of Xxxxx &
Xxxxx from time to time under the Xxxxx & Xxxxx Affiliate program, to real
estate firms with reciprocal referral agreements. From time to time, Xxxxx &
Xxxxx has granted licenses to use its trade names and servicemarks to person who
have purchased a portion of the Company's business. All arrangements are
contractually limited in time and scope.
59
ANNEX I
ASSUMPTION AGREEMENT
The undersigned, ____________________________________, a ________
corporation, hereby joins in the execution of that certain Guarantee and
Collateral Agreement dated as of October,1999 (the "Guaranty"), by Xxxxx & Xxxxx
Company, certain of its Subsidiaries and each other Person that has become or
becomes a Guarantor and Grantor thereunder after the date and pursuant to the
terms thereof to and in favor of Bank of America, N.A., as Lender. By executing
this Assumption Agreement, the undersigned hereby agrees that it is a Guarantor
arid a Grantor thereunder with the same force and effect as if originally named
therein as a Guarantor and Grantor. The undersigned agrees to be bound by all of
the terms and provisions of the Guaranty and represents and warrants that the
representations and warranties set forth in Section 4 of the Guaranty are, with
respect to the undersigned, true and correct as of the date hereof. Each
reference to a Guarantor or a Grantor in the Guaranty shall be deemed to include
the undersigned.
In Witness Whereof, the undersigned has executed this Assumption
Agreement this _____ day of ____________________, _______________.
___________________________________
a ________ corporation
By: _______________________________
Name:______________________________
Title:_____________________________
60
