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EXHIBIT 10.1
SECOND AMENDED AND RESTATED
COLLATERAL TRUST AGREEMENT
THIS SECOND AMENDED AND RESTATED COLLATERAL TRUST AGREEMENT, dated as
of June 9, 1998 (this "Agreement"), is made by and among WestPoint Xxxxxxx Inc.,
a Delaware corporation (the "Borrower"), each of the Subsidiaries of the
Borrower listed on the signature pages hereto (the "Borrower Subsidiaries", and
together with the Borrower, the "Grantors"), NationsBank, N.A. (formerly known
as NationsBank of North Carolina, N.A.), acting not in its individual capacity
but solely as Trustee (in such capacity, being herein referred to as the
"Trustee") under this Agreement for the Secured Parties, IBJ Xxxxxxxx Bank &
Trust Company, not in its individual capacity but solely as the Xxxxxxx
Indenture Trustee as hereinafter defined, and each of the Banks which are
signatories hereto.
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent, certain of the Banks
and other financial institutions entered into that certain Amended and Restated
Credit Agreement dated as of November 23, 1994 (as amended from time to time,
the "1994 Credit Agreement"), pursuant to which such lenders (the "1994 Banks")
made available to the Borrower up to $350,000,000 of secured working capital
facilities, such 1994 Credit Agreement amending and restating the terms and
conditions of that certain Credit Agreement dated as of December 1, 1993 among
the Borrower, Bankers Trust Company as the original administrative agent, and
certain of the Banks and other financial institutions;
WHEREAS, the 1994 Credit Agreement expanded the amount of the secured
working capital facilities extended to the Borrower and provided for the
substitution of NationsBank, N.A. (formerly known as NationsBank of North
Carolina, N.A.) for Bankers Trust Company as the administrative agent with
respect to such facilities;
WHEREAS, WestPoint Pepperell, Inc., a Georgia corporation ("WPP") which
was merged with and into the Borrower pursuant to the Merger, is a party to the
Indenture dated as of March 1, 1987, as amended, modified and supplemented from
time to time (the "Xxxxxxx Indenture"), between X. X. Xxxxxxx & Co., Inc. and
IBJ Xxxxxxxx Bank and Trust Company, as trustee (the "Xxxxxxx Indenture
Trustee"), providing for $75,000,000 of 9% Sinking Fund Debentures due March 1,
2017;
WHEREAS, in connection with the assumption by the Borrower of the
obligations of WPP under the Xxxxxxx Indenture resulting from the Merger, the
Borrower granted, and caused to be granted, certain liens to the holders of the
Xxxxxxx Debentures;
WHEREAS, in connection with the 1994 Credit Agreement, the Grantors,
the Trustee, the 1994 Banks, and the Xxxxxxx Indenture Trustee executed that
certain Amended and Restated Collateral Trust Agreement, dated as of November
23, 1994 (the "1994 Collateral Trust Agreement"), pursuant to which inter alia
the Grantors reconveyed to the Trustee collateral interests in their respective
properties and executed certain mortgages, deeds of trust, guaranties and other
collateral documents, such agreement amending and restating the terms and
conditions of that certain Collateral Trust Agreement, dated as of December 10,
1993 among the Grantors, Bankers Trust Company as the original trustee, the
Xxxxxxx Indenture Trustee, and other parties thereto;
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WHEREAS, as of even date herewith, the Administrative Agent, the Banks,
the Borrower and certain of its foreign subsidiaries have entered into that
certain Second Amended and Restated Credit Agreement (as amended from time to
time, the "Restated Credit Agreement"), pursuant to which the Banks have agreed
to increase the aggregate amount of secured working capital facilities available
to the Borrower up to $550,000,000;
WHEREAS, the Grantors, the Trustee, the Banks and the Xxxxxxx Indenture
Trustee desire to amend and restate the terms and agreement governing the
rights, powers and duties of the Trustee in light of the Restated Credit
Agreement;
DECLARATION OF TRUST:
NOW, THEREFORE, to secure, in accordance with the provisions of the
Debt Instruments and the Collateral Documents, the payment, observance and
performance of the Secured Debt and in consideration of the premises and the
mutual agreements set forth herein, the Trustee does hereby declare that it
holds or will hold as Trustee in trust under this Agreement all of its right,
title and interest in, to and under all the following (and each Grantor hereby
consents thereto) for the benefit of the Secured Parties:
(A) each Collateral Document accepted in writing by the
Trustee and the Collateral granted to the Trustee thereunder;
(B) the share certificates evidencing the Pledged Stock
delivered to, and accepted in writing by, the Trustee and the
accompanying undated instruments of transfer duly executed in blank;
(C) each agreement or other document entered into and/or
delivered, from time to time, pursuant to Section 5.2, Section 5.3,
Section 8.6, Section 11.1(b) or Section 11.1(c) of this Agreement or
pursuant to the terms of the Restated Credit Agreement or the
Collateral Documents and in each case accepted by the Trustee in
writing and the Collateral granted to the Trustee thereunder;
(D) the Trust Agreement Collateral; and
(E) the Proceeds of each of the foregoing.
TO HAVE AND TO HOLD the Trust Estate unto the Trustee and its
successors in trust under this Agreement and its assigns and the assigns of its
successors in trust forever.
IN TRUST NEVERTHELESS, under and subject to the terms and conditions
set forth herein and in the other Collateral Documents, and for the benefit of
the Secured Parties and for the enforcement of the payment of all Secured Debt,
and for the performance of and compliance with the covenants and conditions of
the Debt Instruments and each of the Collateral Documents.
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PROVIDED, HOWEVER, that these presents are upon the condition that if
the Borrower or its successors or assigns shall satisfy all of the conditions
set forth in Section 10 of this Agreement with respect to all or any part of the
Collateral, as the case may be, then (if with respect to all of the Collateral)
this Agreement, and the estates and rights assigned in the Collateral Documents,
shall cease, terminate and be void or (if with respect to part of the
Collateral) this Agreement, and the estates and rights assigned in the
Collateral Documents, shall cease, terminate and be void with respect to such
part of the Collateral; otherwise they shall remain and be in full force and
effect.
IT IS HEREBY FURTHER COVENANTED AND DECLARED that the Trust Estate is
to be held and applied by the Trustee, subject to the further covenants,
conditions and trust hereinafter set forth.
SECTION 1
DEFINITIONS
SECTION 1.1 Definitions.
(a) As used in this Agreement, including the introductory
provisions hereof, the following terms shall have the following meanings:
"Actionable Default" means a Collateral Event of Default which
shall have occurred and be continuing.
"Additional Collateral Documents" means all stock pledge
agreements, security agreements, mortgages (including leasehold
mortgages), guaranties, and other documents executed and/or delivered
by any Grantor after the date hereof, pursuant to Section 2.2 or 2.3(a)
of this Agreement and accepted by the Trustee in writing, as the same
may be amended, supplemented or otherwise modified in accordance with
their respective terms and with the terms hereof.
"Additional Grantors" has the meaning given in Section 2.2 of
this Agreement.
"Additional Grantor Collateral" has the meaning given in
Section 2.2 of this Agreement.
"Administrative Agent" or "Agent" means NationsBank, N.A., a
national banking association, in its capacity as administrative agent
under the Restated Credit Agreement and related documents, and its
successors and assigns.
"Agreement" means this Second Amended and Restated Collateral
Trust Agreement, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms.
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"Authorized Officer" means the President or any Vice President
of a Grantor or any of its Subsidiaries.
"Bank Obligations" means all of the indebtedness, obligations
and liabilities existing on the date hereof or arising from time to
time thereafter, whether direct or indirect, joint or several, actual,
absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of
law or otherwise, of the Grantors to any Bank Secured Party under or in
respect of any one or more of the Debt Instruments or the Collateral
Documents.
"Bank Secured Party" means each Bank and the Administrative
Agent.
"Bankruptcy Code" means Title 11 of the United States Code, 11
U.S.C. et seq., as the same may be amended from time to time, and any
successor statute thereto.
"Banks" means the "Banks" as defined in the Restated Credit
Agreement.
"Borrower" has the meaning given in the introduction to this
Agreement.
"Borrower Subsidiaries" has the meaning given in the
introduction to this Agreement.
"Business Day" means a day which is not a Saturday, Sunday or
any other day on which the Trustee, the Administrative Agent or the
Xxxxxxx Indenture Trustee is not open for business.
"Co-Agent Banks" means the "Co-Agent Banks" as defined in the
Restated Credit Agreement.
"Collateral" means all property in which the Trustee has, or
purportedly has, an interest (including, without limitation, a Lien)
from time to time under this Agreement or one or more of the other
Collateral Documents including, without limitation, the Grantor
Collateral and the Additional Grantor Collateral.
"Collateral Account" has the meaning given in Section 7.1 of
this Agreement.
"Collateral Documents" means the Initial Collateral Documents
and the Additional Collateral Documents.
"Collateral Event of Default" means an "Event of Default" as
defined in the Restated Credit Agreement and an "Event of Default" as
defined in the Xxxxxxx Indenture; provided that any required notice
thereof has been given and any grace periods provided for therein have
expired.
"Consolidated Net Tangible Assets" means the total of all the
assets appearing on the consolidated balance sheet of the Borrower and
its Subsidiaries, less the following:
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(1) current liabilities, including liabilities
for indebtedness maturing more than 12 months from the date of
the original creation thereof but maturing within 12 months
from the date of determination;
(2) reserves for depreciation and other asset
valuation reserves;
(3) intangible assets including, but without
limitation, such items as goodwill, trademarks, trade names,
patents and unamortized debt discount and expense carried as
an asset on said balance sheet; and
(4) appropriate adjustments on account of
minority interests of other persons holding stock in any
Subsidiary of the Borrower.
Consolidated Net Tangible Assets shall be determined in accordance with
generally accepted accounting principles and practices applicable to
the type of business in which the Borrower and its Subsidiaries are
engaged and which are approved by the independent accountants regularly
retained by this Borrower, and may be determined as of a date not more
than 60 days prior to the happening of the event for which such
determination is being made.
"Debt Instruments" means (i) the Restated Credit Agreement,
any notes issued pursuant thereto and the other agreements, documents
and instruments executed in connection therewith, and any amendments or
restatements thereof, including, without limitation, the Restated
Guaranties, and documents or instruments evidencing liabilities of the
Grantors outstanding at any time under Hedge Agreements permitted by
the Restated Credit Agreement, and (ii) the Xxxxxxx Indenture, the
Xxxxxxx Debentures and the other documents and instruments executed in
connection therewith.
"Discharge Notice" means a written notice, signed by an
Authorized Officer of the Borrower, which requests a discharge of the
Collateral Documents in accordance with the provisions of Section 10.2
of this Agreement and which certifies to the Trustee and the Secured
Parties that:
(i) one of the events enumerated in Section
10.1(a)(i) or 10.1(a)(ii) of this Agreement has occurred
(specifying which event), and
(ii) No Grantor Default shall exist after, or as
a result of, the release of the Collateral.
"Distribution Dates" means the Business Days fixed by the
Trustee for the distribution of all moneys held by the Trustee in the
Collateral Account, the first of which shall occur within ninety (90)
days after the giving of a Notice of Actionable Default which has not
theretofore been withdrawn and the balance of which shall, so long as
such Notice of Actionable Default shall not have been withdrawn, be on
the corresponding date or, if the
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corresponding date is not a Business Day, the next succeeding Business
Day in each calendar month thereafter.
"Domestic Subsidiary" means a Subsidiary of the Borrower
except a Subsidiary (a) which neither transacts any substantial portion
of its business nor regularly maintains any substantial portion of its
fixed assets within the States of the United States, or (b) which is
engaged primarily in financing the operations of the Borrower or its
Subsidiaries, or both, outside the States of the United States.
"Excluded Property" means (i) any real or personal property on
which a Lien may not be granted to secure the Secured Debt pursuant to
the terms of Industrial Revenue Bonds and Industrial Development Bonds
permitted by the Restated Credit Agreement, (ii) any other property or
interest leased or licensed to a Grantor with respect to which a Lien
may not be granted to secure Secured Debt pursuant to terms of the
applicable lease agreement or license agreement, unless any consents
required to permit such Lien have been obtained, (iii) the real
property identified on Schedule A hereto, (iv) the Borrower's power
distribution system located in West Point, Georgia, (v) the capital
stock of the Inactive Subsidiaries and of Xxxxx, (vi) all Receivables
of the Borrower and its Subsidiaries (other than the Permitted
Receivables), whether now owned or hereafter acquired, as well as any
related assets (including (a) all of the applicable seller's right,
title and interest in and to the goods (including returned goods), if
any, relating to the sale which gave rise to each Receivable that is,
or is purported to be, sold, assigned, transferred, contributed or
otherwise disposed of to Xxxxx pursuant to the Permitted Receivables
Financing, (b) all other security interests or liens and property
subject thereto from time to time purporting to secure payment of each
such Receivable, (c) all letters of credit, guaranties and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of each such Receivable and (d) all
proceeds of each such Receivable and of the foregoing and all insurance
payments that the seller or servicer of such Receivable applies in the
ordinary course of business to amounts owed in respect of any such
Receivable) sold, assigned, transferred, contributed or otherwise
disposed of to Xxxxx pursuant to the Permitted Receivables Financing,
(vii) Inventory, to the extent an invoice has been sent to the
purchaser thereof or such Inventory has otherwise been sold, (viii) the
Xxxxx Notes, and (ix) any patents or trademarks which have been
abandoned by any Grantor as of the Closing Date or which are in the
process of being sold by any Grantor as of the Closing Date.
"Xxxxx" means WPS Receivables Corporation, a Delaware
corporation, and any Subsidiaries of WPS Receivables Corporation which
purchases Transferred Assets (as well as any related assets) from Xxxxx
pursuant to the Permitted Receivables Financing.
"Xxxxx Notes" means the promissory notes issued by Xxxxx to
the Borrower and any of the Borrower's Subsidiaries as consideration
for Transferred Assets and any amendment or restatement thereof on
substantially similar terms for a period of one to five years.
"Foreign Subsidiary" has the meaning ascribed to such term in
the Restated Credit Agreement.
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"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Grantor Collateral" has the meaning given in Section 2.1 of
this Agreement.
"Grantor Default" means a default, event of default or
unmatured event of default as defined in any Debt Instrument or any
Collateral Document.
"Grantors" has the meaning given in the introduction to this
Agreement and shall include any Additional Grantors that become a party
to this Agreement pursuant to Section 2.2.
"Inactive Subsidiary" means "Inactive Subsidiary" as defined
in the Restated Credit Agreement and "Inactive Subsidiaries," means all
Inactive Subsidiaries, collectively.
"Initial Collateral Documents" means this Agreement, the
Restated Guaranties identified on Schedule B hereto, the Restated Stock
Pledge Agreements identified on Schedule C hereto and all security
agreements, mortgages (including leasehold mortgages) and other
collateral or related documents executed and/or delivered by the
Grantors prior to or on the date hereof and accepted by the Original
Trustee or the Trustee (as the case may be) in writing, as the same may
be amended, supplemented or otherwise modified in accordance with their
respective terms and with the terms hereof.
"Inventory" shall mean, inclusively, all goods, merchandise
and other personal property, wherever located, now owned or hereafter
acquired by a Grantor of every kind or description which are held for
sale or lease or are furnished or to be furnished under a contract of
service or are raw materials, work-in-process or materials used or
consumed or are to be used or consumed in such Grantor's business.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to
give any of the foregoing, any conditional sale or other title
retention agreement or any lease in the nature thereof).
"Merger" means the merger prior to the date hereof of (i)
Valley Fashions Subsidiary Corp. with and into the Borrower, (ii) WPP
with and into Valley Fashions Tender Corp. and (iii) Valley Fashions
Tender Corp. with and into the Borrower.
"Notice of Actionable Default" means a written certification
addressed to the Trustee and the Borrower from the Administrative Agent
or from or on behalf of the Required Banks or the Required Secured
Parties certifying that an Actionable Default has occurred with respect
to the Obligations.
"Obligations" means the Bank Obligations and the Xxxxxxx
Indenture Obligations; provided, however, that for purposes of any
mortgages executed pursuant to this Agreement
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with respect to any real property that is not a Principal Domestic
Manufacturing Property, Obligations shall not include the Xxxxxxx
Indenture Obligations.
"Original Administrative Agent" means Bankers Trust Company, a
New York banking corporation, in its capacity as the original
administrative agent, and its successors and assigns, under the
Original Credit Agreement.
"Original Banks" means those financial institutions which were
parties to the Original Credit Agreement, together with their
respective successors and assigns.
"Original Credit Agreement" means that certain Credit
Agreement, dated as of December 1, 1993, by and among the Borrower, the
Original Administrative Agent, and the Original Banks.
"Original Collateral Trust Agreement" has the meaning given in
the introduction to this Agreement.
"Original Trustee" means Bankers Trust Company, acting not in
its individual capacity, but through its corporate trust department as
trustee under the Original Collateral Trust Agreement.
"Permitted Receivables" means all Receivables of each of the
Grantors other than the Transferred Assets.
"Permitted Receivables Financing" has the meaning ascribed to
such term in the Restated Credit Agreement.
"Person" means an individual or a corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint
stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Pledged Stock" means, collectively, "Pledged Shares" as
defined in each of the Restated Stock Pledge Agreements and any other
shares of capital stock pledged pursuant to the Collateral Documents.
"Principal Domestic Manufacturing Property" means any
building, structure or other facility, together with the land upon
which it is erected and fixtures comprising a part thereof, used
primarily for manufacturing or processing and located in the United
States, owned or leased by the Borrower or any Subsidiary of the
Borrower, the gross book value (without deduction of any depreciation
reserves) of which on the date as of which the determination is being
made exceeds 3/4 of 1% of Consolidated Net Tangible Assets, other than
any such building, structure or other facility or portion thereof (i)
which is a pollution control or other facility financed by obligations
issued by a State or local governmental unit pursuant to Section
103(b)(4)(E), 103(b)(4)(F) or 103(b)(6) of the Internal Revenue Code of
1954, or any successor provision thereof; or (ii) which, in the opinion
of the Board of
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Directors of the Borrower, is not of material importance to the total
business conducted by the Borrower and its Subsidiaries as an entirety.
"Proceeds" means "proceeds" as defined in Section 9-306(1) of
the Uniform Commercial Code as in effect in the relevant jurisdiction
and, whether or not the following constitute proceeds under such
section, (i) any and all proceeds of any insurance, indemnity, warranty
or guaranty payable to any Grantor from time to time with respect to
any of the Collateral, (ii) any and all other amounts from time to time
paid or payable to, or for the account of, any Grantor upon the sale,
exchange, collection or other disposition of any part of the
Collateral, and (iii) any and all interest or dividends paid or
distributed with respect to the Collateral. Notwithstanding any of the
foregoing, the Receivables generated upon the sale of Inventory in the
ordinary course of business shall not constitute Proceeds of such
Inventory for purposes of this Agreement, except for the Permitted
Receivables.
"Receivables" means presently existing and hereafter arising
or acquired accounts receivable, notes, drafts, acceptances, choses in
action and other forms of obligations and receivables relating in any
way to inventory or arising from the sale of Inventory or the rendering
of services by any Grantor or howsoever otherwise arising, including
the right to payment of any interest or finance charges with respect
thereto and all proceeds of insurance with respect thereto, together
with all merchandise represented by any of the foregoing, all of such
Grantor's rights as an unpaid vendor, all pledged assets and letters of
credit, guaranty claims, liens and security interests (unless otherwise
prohibited by the applicable terms thereof) held by or granted to such
Grantor to secure payment of any of the foregoing and all books,
customer lists, ledgers, records and files (whether written or stored
electronically relating to any of the foregoing).
"Release Certificate" has the meaning given in Section 3.3 of
this Agreement.
"Required Banks" means "Required Banks" as defined in the
Restated Credit Agreement.
"Required Secured Parties" means, as of the date of
determination thereof, Secured Parties having more than 50% of the
aggregate principal amount of the Obligations then outstanding
(treating the principal amount of any outstanding commitments to make
loans under the Restated Credit Agreement as outstanding Obligations).
"Restated Credit Agreement" means that certain Second Amended
and Restated Credit Agreement, dated as of even date with this
Agreement, by and among inter alia the Borrower, the Administrative
Agent, the Co-Agent Banks, and the other lending institutions listed
therein, as the same may be amended, modified or supplemented from time
to time, and shall also include any agreements pursuant to which
indebtedness is incurred, the proceeds of which are used to refinance
in full all indebtedness under the Restated Credit Agreement.
"Restated Guaranties" means the guaranties, and as the case
may be, the amended and restated guaranties, of each of the Grantors
identified on Schedule B hereto and the
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guaranty(ies) of any Additional Grantor(s), substantially in the form
of Exhibit A hereto, as the same may be amended, supplemented or
otherwise modified in accordance with the terms thereof and hereof.
"Restated Stock Pledge Agreements" means the pledge
agreements, and as the case may be, the second amended and restated
stock pledge agreements identified on Schedule C hereto and the Stock
Pledge Agreement(s) of any Additional Grantor(s), in substantially the
form of Exhibit B hereto, as the same may be amended, supplemented or
otherwise modified in accordance with their respective terms.
"Secured Debt" means, collectively, the Bank Obligations, the
Xxxxxxx Indenture Obligations and the Trustee's Fees; provided,
however, that with respect to any Restated Guaranty, Secured Debt shall
not include the Xxxxxxx Indenture Obligations.
"Secured Party" means each Bank Secured Party and each holder
of Xxxxxxx Debentures.
"Xxxxxxx Debentures" means the outstanding 9% Sinking Fund
Debentures due March 1, 2017 issued pursuant to the Xxxxxxx Indenture.
"Xxxxxxx Indenture" has the meaning given in the premises to
this Agreement.
"Xxxxxxx Indenture Collateral" means any Principal Domestic
Manufacturing Property that is Collateral, any capital stock of any
Domestic Subsidiary that is Pledged Stock and any notes, bonds,
debentures or other similar evidences of indebtedness of any Domestic
Subsidiary that is Collateral and all Proceeds of the foregoing. The
Xxxxxxx Indenture Collateral as of the date hereof consists of the
Principal Domestic Manufacturing Properties set forth on Schedule D
hereto and of any stock and any evidences of indebtedness constituting
Collateral of those Domestic Subsidiaries set forth on Schedule D
hereto. The Trustee shall be entitled to rely on Schedule D, as it may
be updated by written notice from the Borrower, as conclusive evidence
of what constitutes Principal Domestic Manufacturing Properties and
Domestic Subsidiaries.
"Xxxxxxx Indenture Obligations" means all of the indebtedness,
obligations and liabilities existing on the date hereof or arising from
time to time thereafter, whether direct or indirect, joint or several,
actual, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of
law or otherwise, of the Grantors to the holders of the Xxxxxxx
Debentures under or in respect of the Xxxxxxx Indenture, the Xxxxxxx
Debentures or any one or more of the Collateral Documents; provided,
however, that the aggregate principal amount of the Xxxxxxx Indenture
Obligations shall not exceed $75,000,000.
"Xxxxxxx Indenture Trustee" means IBJ Xxxxxxxx Bank & Trust
Company, as trustee under the Xxxxxxx Indenture and any successor
trustee under the Xxxxxxx Indenture.
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"Subsidiary" of any Person shall mean any corporation,
partnership (limited or general), trust or other entity of which a
majority of the stock (or equivalent ownership or controlling interest)
having voting power to elect a majority of the board of directors (if a
corporation) or to select the trustee or equivalent controlling
interest, shall, at the time such reference becomes operative, be
directly or indirectly owned or controlled by such Person or one or
more of the other Subsidiaries of such Person or any combination
thereof.
"Supporting Documents" means all financing statements,
opinions, officers certificates, title insurance policies, surveys,
appraisals and other documents reasonably requested by the Trustee or
the Administrative Agent in connection with the execution, delivery,
filing, registering and/or recording of Additional Collateral Documents
pursuant to Sections 2.2 and 2.3 of this Agreement, together with any
such documents assigned to the Trustee by the Original Trustee.
"Transferred Assets" has the meaning ascribed to such term in
the Restated Credit Agreement.
"Trust Agreement Collateral" has the meaning given in Section
7.2(a) of this Agreement.
"Trust Estate" means (i) the Collateral Documents, (ii) the
Collateral and (iii) the Proceeds of any and all Collateral Documents
and Collateral.
"Trustee" has the meaning given in the introduction to this
Agreement and shall include the Trustee's successors and assigns
hereunder.
"Trustee's Fees" means all fees, costs, expenses and other
claims of the Trustee of the types described in Sections 8.2, 8.3, 8.4,
and 8.5 of this Agreement.
"WPP" has the meaning given in the premises to this Agreement.
"1994 Collateral Trust Agreement" has the meaning given in the
premises to this Agreement.
(b) Terms not otherwise defined herein which are defined in or
used, in Article 9 of the Uniform Commercial Code as in effect in the relevant
jurisdiction shall herein have the meanings given to them in said Article 9.
(c) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
specified.
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement and all section
references herein are to this Agreement unless otherwise specified.
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SECTION 2
SECURITY INTERESTS
SECTION 2.1 Grant of Certain Security Interests.
(a) As a restatement and reaffirmation of the pledges, grants,
transfers and assignments made by each Grantor pursuant to the Original
Collateral Trust Agreement and the 1994 Collateral Trust Agreement, and as
collateral security for the prompt and complete payment and performance when due
of all of the Secured Debt, each Grantor does hereby pledge, assign and transfer
unto the Trustee for itself hereunder and for the ratable benefit of the Secured
Parties, and does hereby grant to the Trustee for itself hereunder and for the
ratable benefit of the Secured Parties, a continuing security interest of first
priority, subject, as to priority, only to Liens permitted by the Restated
Credit Agreement which, pursuant to applicable law, are prior in right to the
Lien granted hereby, in (i) all of the right, title and interest of such Grantor
in, to and under all cash, accounts (other than accounts relating to Transferred
Assets), deposits (other than deposits relating to Transferred Assets), chattel
paper, contract rights, instruments, securities, insurance policies and
documents now or at any time hereafter in the possession or under control of
such Grantor or its bailee, and any interest therein, (ii) all of the right,
title and interest of such Grantor in, to and under all Inventory, whether now
existing or hereafter from time to time acquired, (iii) all of the right, title
and interest of such Grantor in, to and under all Permitted Receivables, (iv)
all of the right, title and interest of such Grantor in general intangibles
(including, without limitation, inventions, designs, patents, patent
applications, trademarks, trademark applications, trade names, copyrights,
licenses, tax refund claims, guaranty claims, contract rights, goodwill, and
security interests or other security held by such Grantor to secure accounts)
other than those general, intangibles that may not be assigned or which require
the consent of other parties prior to any assignment thereof if consent to such
assignment has not been obtained, (v) all of the right, title and interest of
such Grantor in goods, equipment (including, without limitation, all equipment
used in such Grantor's business and all office equipment), vehicles and
fixtures, together with accessions thereto and replacement parts therefor,
whether now existing or hereafter acquired, (vi) all of the right, title and
interest of such Grantor in all books and records, including without limitation,
customer lists, credit files, computer programs, print-outs, and other materials
and records pertaining to any of the foregoing, (vii) all of the shares of
capital stock of each Domestic Subsidiary of such Grantor and 65% of the shares
of all capital stock of each direct Foreign Subsidiary of such Grantor, in each
case as now owned or hereafter acquired by such Grantor, including, without
limitation, any Pledged Stock of such Grantor, (viii) all interests of such
Grantor in any real property owned or leased by such Grantor other than real
property leased to such Grantor with respect to which a Lien may not be granted
to secure Secured Debt pursuant to the terms of the applicable lease unless any
consents required to permit such Lien have been obtained, (ix) all Proceeds of
the foregoing (including, without limitation, all insurance and claims for
insurance effected or held for the benefit of such Grantor or the Secured
Parties in respect thereof), (x) all documents of title evidencing or issued
with respect to any of the foregoing, (xi) all products of any and all of the
foregoing and (xii) all other property of such Grantor, whether now owned or
hereafter acquired (all of the above, collectively, the "Grantor Collateral";
provided, however, that the Grantor Collateral shall not include any Excluded
Property, whether now owned or hereafter acquired, or the products or Proceeds
thereof; and provided,
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further, that with respect to the Secured Debt consisting of the Xxxxxxx
Indenture Obligations, the Grantor Collateral shall only include Xxxxxxx
Indenture Collateral).
(b) The assignment and security interest so granted to the Trustee
shall not relieve any Grantor from the performance of any term, covenant,
condition or agreement on such Grantor's part to be performed or observed under
or in respect of any of the Collateral or from any liability to any Person under
or in respect of any of the Collateral or impose any obligation on the Trustee
to perform or observe any such term, covenant, condition or agreement on such
Grantor's part to be so performed or observed or impose any liability on the
Trustee for any act or omission on the part of such Grantor relative thereto or
for any breach of any representation or warranty on the part of such Grantor,
contained in any Debt Instrument, Collateral Document or otherwise, or in
respect of the Collateral or made in connection herewith or therewith. The
obligations of each Grantor contained in this paragraph shall survive the
termination of this Agreement and the discharge of such Grantor's other
obligations hereunder.
SECTION 2.2 Covenant to Grant Additional Security Interests; Additional
Grantors. As further collateral security for the prompt and complete payment and
performance when due of all of the Secured Debt, each Grantor does hereby agree:
(a) To execute and deliver to the Trustee, in form and content
reasonably satisfactory to the Trustee, a deed of trust or mortgage relating to
any real property, improvements and fixtures hereafter acquired by such Grantor
for so long as the Secured Debt remains outstanding, together with all
Supporting Documents relating to such additional property;
(b) To cause each of its Domestic Subsidiaries (other than Xxxxx
or any Inactive Subsidiary) which becomes a Subsidiary after the date hereof
(the "Additional Grantors") to, on the date such Person becomes a Subsidiary,
(i) guaranty the Secured Debt on terms substantially similar to those set forth
in the Restated Guaranties, (ii) become a party to this Agreement as a Grantor
and (iii) by becoming a party to this Agreement as a Grantor, grant to the
Trustee for itself hereunder and for the ratable benefit of the Secured Parties,
a continuing security interest subject as to priority only to Liens permitted by
the Restated Credit Agreement which, pursuant to applicable law, are prior in
right to the Lien so granted, in all types of real and personal property
included in Section 2.1(a) as Grantor Collateral (all of such real and personal
property described in this Section 2.2 shall be referred to, collectively as the
"Additional Grantor Collateral"); provided, however, that the Additional Grantor
Collateral shall not include any Excluded Property; and provided, further, that
with respect to the Secured Debt consisting of the Xxxxxxx Indenture
Obligations, the Additional Grantor Collateral shall only include Xxxxxxx
Indenture Collateral; and
(c) To execute and deliver to the Trustee, in form and content
reasonably satisfactory to the Trustee, a stock pledge agreement pledging all of
the capital stock of any Domestic Subsidiary of such Grantor acquired after the
date of this Agreement, together with any Supporting Documents related thereto;
and
(d) To execute and deliver to the Trustee, in form and content
reasonably satisfactory to the Trustee, a stock pledge agreement pledging 65% of
the capital stock of any direct Foreign Subsidiary.
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SECTION 2.3 Additional Collateral Documents and Supporting Documents.
(a) As soon as reasonably practicable, each Grantor agrees to
execute and deliver to the Trustee such Additional Collateral Documents, in form
and substance reasonably satisfactory to the Administrative Agent (as evidenced
by a certificate of the Administrative Agent) and the Trustee, and to make all
filings, registrations, and recordings necessary or appropriate to create,
preserve, protect and perfect the security interest granted by such Grantor to
the Trustee hereunder and under any other Collateral Documents in respect of the
Collateral so that such security interest (i) constitutes a perfected security
interest therein superior and prior to the rights of all other Persons therein
(except Persons holding Liens permitted by the Restated Credit Agreement or a
Collateral Document) and subject to no other Liens (except Liens permitted by
the Restated Credit Agreement or a Collateral Document) and (ii) entitled to all
the rights, priorities and benefits afforded by the Uniform Commercial Code or
other relevant law as enacted in any relevant jurisdiction which relates to
perfected security interests.
(b) In connection with the actions taken pursuant to Section
2.3(a), each Grantor agrees to, and agrees to cause any Additional Grantor that
is its Subsidiary to, execute and/or deliver to the Trustee such Supporting
Documents as the Trustee reasonably requests, in form and substance satisfactory
to the Trustee.
SECTION 2.4 Powers of Attorney. Each Grantor hereby irrevocably
constitutes and appoints the Trustee and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full power
and authority in the name of such Grantor or the name of such attorney-in-fact,
from time to time in the Trustee's discretion, for the purpose of signing
documents and taking other action to perfect, promote, protect and enforce the
Liens and security interests of the Trustee in the Collateral. Each Grantor
hereby ratifies, to the extent permitted by law, all that said attorneys shall
lawfully do or cause to be done by, virtue hereof. This power of attorney is a
power coupled with an interest, shall be irrevocable until the Secured
Obligations are indefeasibly paid in full and shall not be subject to the
limitations of Section 6.2(a) of this Agreement.
SECTION 3
CERTAIN OBLIGATIONS AND DUTIES OF THE TRUSTEE
SECTION 3.1 Authorization to Execute Collateral Documents. The Trustee
shall execute and deliver each of the Collateral Documents requiring execution
and delivery by it and shall accept delivery from the Borrower of those
Collateral Documents which do not require the Trustee's execution; provided that
the Trustee shall have no duty to execute and deliver, or to accept delivery of,
any Collateral Document that is not satisfactory to it.
SECTION 3.2 Certain Representations and Warranties. The Trustee
represents and warrants to the Secured Parties as follows:
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(a) The Trustee is a national banking association
organized under the laws of the United States and has all required
corporate power and authority to enter into and perform its obligations
under this Agreement and the other Collateral Documents to which it is
or may become a party; provided, however, that the Trustee makes no
representations and warranties as to whether it has any power or
authority to hold mortgage interests in states other than North
Carolina where specific state statutes prohibit the Trustee from
holding mortgage interests in real property located in such states.
(b) The execution, delivery and performance by the
Trustee of this Agreement and the other Collateral Documents to which
it (i) is a party have been duly authorized by all necessary corporate
action on the part of the Trustee and (ii) becomes a party will be duly
authorized by all necessary corporate action on the part of the
Trustee.
(c) There are no actions or proceedings pending or, to
the actual knowledge of any officers of the Trustee executing this
Agreement, threatened against it before any Governmental Authority (A)
which question the validity or enforceability of this Agreement or any
other Initial Collateral Documents to which it is a party; or (B) which
relate to the banking or trust powers of the Trustee and which, if
determined adversely to the position of the Trustee, would materially
and adversely affect the ability of the Trustee to perform its
obligations under this Agreement or any of the other Initial Collateral
Documents to which it is a party.
(d) This Agreement and all of the other Initial
Collateral Documents to which the Trustee is a party have been duly
executed and delivered by it.
SECTION 3.3 Actions. The Trustee (a) shall take any action with respect
to the Collateral (other than the Xxxxxxx Indenture Collateral) and the
Collateral Documents requested in writing by the Required Banks, (b) shall,
after the receipt of a Notice of Actionable Default and prior to the withdrawal
thereof, take any action with respect to the Xxxxxxx Indenture Collateral and
the Collateral Documents in respect thereof requested in writing by the Required
Secured Parties and (c) shall, at the request of the Required Banks or, pursuant
to Section 10.4, the Administrative Agent, release any portion of the Collateral
from the Liens created under the Collateral Documents and take requested actions
in connection therewith, provided, however, that the Trustee shall not (i)
release all or substantially all of the Collateral without the consent of all of
the Banks or (ii) be obligated to take any such action which is in conflict with
the provisions of law or of the Restated Credit Agreement or the Collateral
Documents, is prohibited by order of any court or Governmental Authority or with
respect to which the Trustee has not received adequate security or indemnity as
provided in Section 9.4(d). With respect to actions under clause (c) hereof, the
Trustee shall be entitled to conclusively rely on a certificate executed by an
Authorized Officer of the Borrower that any Collateral to be released does not
constitute all or substantially all of the Collateral, that Collateral is being
released in connection with a sale of assets permitted by the Restated Credit
Agreement or consented to by the Banks pursuant to the Restated Credit Agreement
(a "Release Certificate"). The Trustee shall be justified in not taking any
action otherwise required by clause (c) of this Section 3.3 in the absence of a
Release Certificate. The Trustee, prior to its receipt of a Notice of Actionable
Default, shall with reasonable promptness give notice to the Borrower of any
request pursuant to clause (a) of this Section 3.3, but it is hereby expressly
agreed that the Trustee's
16
failure to give such notice to the Borrower shall not (i) affect the validity of
such request to the Trustee or (ii) impair any of the rights, powers and
remedies of the Trustee under any Collateral Document.
SECTION 4
GENERAL REPRESENTATIONS, WARRANTIES
AND COVENANTS OF THE GRANTORS
SECTION 4.1 Title to Pledged Collateral. Each Grantor represents and
warrants that it has good and marketable title to, or a validly existing
leasehold interest in, its Collateral, subject only to Liens permitted by the
Restated Credit Agreement and the Collateral Documents, with such exceptions as
are not material to such Grantor and its Subsidiaries taken as a whole. No
Grantor will (i) create, incur, assume or permit to exist any Lien on any
existing or future item of Collateral other than Liens permitted by the Restated
Credit Agreement and the Collateral Documents and Liens in favor of the Trustee
and the Secured Parties as contemplated by the Collateral Documents, and each
Grantor hereby agrees to preserve and maintain in full force and effect the
Liens on the Collateral created by the Collateral Documents in favor of the
Trustee and the Secured Parties, or (ii) enter into or assume any agreement
containing a negative pledge which would require a sharing of an interest in the
Collateral or prohibits or limits the grant of any such interest. Until all of
the Bank Obligations and the Trustee's Fees shall have been fully paid and
satisfied, the Trustee shall be entitled to retain security in and Liens upon
all Collateral and all of the Trustee's rights and remedies shall continue. Each
Grantor represents and warrants that each Collateral Document creates a valid,
enforceable and binding Lien in favor of the Trustee subject only to Liens
permitted by the Restated Credit Agreement and the Collateral Documents.
SECTION 4.2 Other Financing Statements. So long as any of the Bank
Obligations or Trustee's Fees remain unpaid, no Grantor will execute or
authorize to be filed in any public office any financing statement (or similar
statement or instrument of registration under the law of any jurisdiction) or
statements relating to the Collateral, except financing statements filed or to
be filed in respect of and covering the security interests granted by such
Grantor pursuant to the Collateral Documents or as otherwise permitted by the
Restated Credit Agreement or the Collateral Documents. Attached hereto as
Schedule E is a list of all names under which each Grantor does business. Each
Grantor hereby agrees that it will promptly notify the Trustee in writing of any
changes in such list.
SECTION 4.3 Chief Executive Offices, Records. The chief executive
office of each Grantor is at the location for such Grantor listed on Schedule F
hereto. No Grantor will move its chief executive offices except to such new
location as such Grantor may establish in accordance with the last sentence of
this Section 4.3. No Grantor will establish a new location for its chief
executive office until (i) it shall have given to the Trustee not less than 45
days, prior written notice of its intention with respect to such establishment,
clearly describing such new location and providing such other information in
connection therewith as the Trustee may reasonably request, and (ii) with
respect to such new location, it shall have taken all action, satisfactory to
the Trustee,
17
to maintain the perfection of the security interest of the Trustee in the
Collateral at all times fully perfected and in full force and effect.
SECTION 4.4 Location of Inventory and Equipment. Attached hereto as
Schedule G is a list of all the locations (i) in the United States where all
Inventory or equipment of each Grantor is held and (ii) outside of the United
States where Inventory or equipment owned by any Grantor having value in excess
of $1,000,000 is located. Each Grantor agrees that, except as provided herein,
all Inventory and equipment now held or subsequently acquired by it shall be
kept at (or shall be in transit to or from) any one of such locations, or such
new location as such Grantor may establish if (i) it shall have given to the
Trustee prior telephonic (immediately confirmed in writing) or written notice of
its intention to do so, clearly describing such new location and providing such
other information in connection therewith as the Trustee may request, and (ii)
with respect to such new location, it shall have taken all action satisfactory
to the Trustee to cause the security interest in the Collateral granted by the
Collateral Documents to be and continue at all times fully perfected and in full
force and effect.
SECTION 4.5 Location of Real Property. Attached hereto as Schedule H is
a list of all the locations where each Grantor owns real property having a
market value of more than $500,000 in the aggregate per location, and each such
entry on the list identifies all such real property which constitutes Excluded
Property or Principal Domestic Manufacturing Property.
SECTION 4.6 Additional Representations and Warranties of the Grantor.
Each Grantor hereby makes and adopts for the benefit of, and as a representation
and warranty to, the Trustee each of the representations and warranties made by
the Borrower that applies to such Grantor and contained or incorporated by
reference in the Restated Credit Agreement as fully as if each such
representation and warranty (together with related definitions and related
provisions) were expressly set forth herein and expressly made herein by such
Grantor, each such representation and warranty being incorporated in this
Agreement by reference, mutatis mutandis, and, as so made and adopted by such
Grantor and incorporated herein by reference, shall continue in full force and
effect for the benefit of the Trustee until this Agreement shall have been
terminated in its entirety pursuant to Section 10.
SECTION 4.7 Additional Affirmative and Negative Covenants of the
Grantors. Each Grantor hereby assumes and adopts and agrees to perform, comply
with and be bound by, for the benefit of the Trustee, each of the covenants,
obligations and agreements made by the Borrower that applies to such Grantor in
the Restated Credit Agreement as fully as if each such covenant, obligation and
agreement (together with related definitions and related provisions) were
expressly made herein by such Grantor, each such covenant, obligation and
agreement being incorporated in this Agreement by reference, mutatis mutandis,
and as so assumed and adopted by such Grantor and incorporated herein by
reference, shall continue for the benefit of the Trustee until this Agreement
shall have been terminated in its entirety pursuant to Section 10.
SECTION 4.8 Joint and Several Liabilities of Grantors. Each Grantor
agrees that its obligations and liabilities hereunder shall be joint and
several; provided, however that the liability of each Grantor that is a
Subsidiary of the Borrower to any party other than the Trustee shall be limited
to the extent set forth in the Restated Guaranty of such Grantor.
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SECTION 5
PROVISIONS CONCERNING THE COLLATERAL
SECTION 5.1 Location of Goods and Equipment. Attached as Schedule G
hereto is a list of the locations (i) in the United States of all goods and
equipment held by each Grantor and (ii) outside of the United States where
Inventory owned by any Grantor having value in excess of $1,000,000 is located.
Each Grantor hereby agrees that it will promptly notify the Trustee of any
changes in such list. Each Grantor agrees that, except as provided herein, all
goods and equipment now held or subsequently acquired by it shall be kept at (or
shall be in transit to or from) any one of such locations, or such new location
as such Grantor may establish if (i) it shall have given to the Trustee prior
telephonic (immediately confirmed in writing) or written notice of its intention
to do so, clearly describing such new location and providing such other
information in connection therewith as the Trustee may reasonably request, and
(ii) with respect to such new location, it shall have taken all action
satisfactory to the Trustee to cause the security interest in its Collateral
granted by the Collateral Documents to be and continue at all times fully
perfected and in full force and effect.
SECTION 5.2 Further Actions - Collateral. Each Grantor will, at its own
expense, make, execute, endorse, acknowledge, file and/or deliver to the Trustee
from time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to its collateral and other property or rights
covered by the security interest granted by the Collateral Documents, which the
Trustee deems reasonably appropriate or advisable to perfect, preserve, protect
or enforce its security interest in its Collateral. Each Grantor shall
immediately notify the Trustee in writing of any material loss or depreciation
in the value of its Collateral.
SECTION 5.3 Financing Statements. Each Grantor agrees to sign and
deliver to the Trustee such financing statements or amendments thereof, in form
acceptable to the Trustee, as the Trustee may from time to time request in order
to establish and/or maintain a valid, enforceable, first priority security
interest in its Collateral as provided in the Collateral Documents and the other
rights, as against third parties, provided by the Collateral Documents, all in
accordance with the Uniform Commercial Code as enacted in any and all relevant
jurisdictions or any other relevant law. The Grantors will pay all applicable
filing fees and related expenses. Each Grantor authorizes the Trustee to file
any such financing statements without the signature of such Grantor to the
extent permitted by law.
SECTION 5.4 Warehouse Receipts Non-Negotiable. Each Grantor agrees that
if any warehouse receipts or receipts in the nature of a warehouse receipt are
issued with respect to any of its Inventory, no more than an aggregate
outstanding amount of $5,000,000 of such warehouse receipts or receipts in the
nature thereof shall be "negotiable" (as such term is used in Section 7-104
19
of the Uniform Commercial Code as in effect in any relevant jurisdiction or
under other relevant law) at any time.
SECTION 5.5 Protection of Trustee's Security. No Grantor will do
anything to impair the rights of the Trustee in the Collateral. Each Grantor
will at all times keep its Collateral insured in compliance with the
requirements of the Restated Credit Agreement. Each Grantor assumes all
liability and responsibility in connection with the Collateral acquired by it,
and the liability of each Grantor with respect to the Secured Debt shall in no
way be affected or diminished by reason of the fact that such Collateral may be
lost, stolen, damaged, or for any reason whatsoever unavailable to such Grantor.
Each Grantor shall keep and maintain in good operating condition and repair and,
to the extent deemed necessary by such Grantor in its sound business judgment,
make all necessary replacements of and renewals to its Collateral listed in
Section 2.1(a)(iv) so that the value and operating efficiency thereof shall at
all times be maintained and preserved.
SECTION 6
ACTIONABLE DEFAULTS; REMEDIES
SECTION 6.1 Actionable Default.
(a) Upon receipt of a Notice of Actionable Default, the Trustee
shall, within five (5) days thereafter, notify each Secured Party and each
Grantor in the manner provided in Section 11.2 of this Agreement that an
Actionable Default exists. Upon receipt of any written directions pursuant to
Section 6.8(a) of this Agreement, the Trustee shall, within five (5) days
thereafter, send a copy thereof to each Secured Party and each Grantor in the
manner provided in Section 11.2 of this Agreement; provided, however, that the
failure of the Trustee to send such copy shall not impair any of the rights,
powers and remedies of the Trustee under any Collateral Document.
(b) The party or parties (or successors in interest thereto)
giving a Notice of Actionable Default shall be entitled to withdraw it (i) by
delivering written notice of withdrawal to the Trustee before the Trustee takes
any action to exercise any remedy with respect to the Collateral, or (ii)
thereafter, if (A) the Grantors otherwise indemnify the Trustee and the Secured
Parties (in a manner satisfactory to the Trustee and the Secured Parties in
their sole discretion) with respect to all costs and expenses incurred by the
Trustee and the Secured Parties in connection with reversing all actions the
Trustee or any Secured Party has taken to exercise any remedy or remedies with
respect to the Collateral, and (B) the Required Banks or the Required Secured
Parties or, if the Administrative Agent gave the Notice of Actionable Default
without directions from the Required Banks, the Administrative Agent shall have
consented by notice in writing delivered to the Trustee to such withdrawal. The
Trustee shall immediately notify each Grantor as to the receipt and contents of
any such notice of withdrawal and shall promptly notify each Secured Party, in
the manner provided in Section 11.2 of this Agreement, of the withdrawal of any
Notice of Actionable Default.
(c) To the extent that any Notice of Actionable Default shall give
rise to any of the rights and remedies provided in this Agreement or any other
Collateral Document or shall prohibit
20
any Grantor from taking certain actions as specified herein or therein such
rights and remedies shall be suspended, and any exercise thereof by the Trustee
shall cease, and such prohibition on the Grantors shall not remain in effect
upon receipt by the Trustee of written notice of withdrawal of such Notice of
Actionable Default pursuant to the terms and provisions of Section 6.1(b) of
this Agreement; provided that such rights and remedies, and such prohibitions,
shall be reinstated upon the giving of any later Notice of Actionable Default.
SECTION 6.2 Remedies.
(a) If and only if the Trustee shall have received a Notice of
Actionable Default, the Trustee may, and upon the written direction of the
Required Banks or the Required Secured Parties pursuant to Section 6.8(a) shall,
exercise the rights and remedies provided in this Agreement and in any other
Collateral Document accepted in writing by the Trustee.
(b) Each Grantor hereby waives presentment, demand, protest or any
notice (to the extent permitted by applicable law and except as otherwise
expressly provided in this Agreement or any other Collateral Document) of any
kind in connection with this Agreement, any other Collateral Document or any
Collateral.
(c) Each Grantor hereby irrevocably constitutes and appoints the
Trustee and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full power and authority in the name
of such Grantor or in its own name, from time to time in the Trustee's
discretion, upon the occurrence and during the continuance of any Actionable
Default, for the purpose of carrying out the terms of any of the Collateral
Documents, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes hereof and thereof and, without limiting the generality of the
foregoing, hereby gives the Trustee the power and right on behalf of such
Grantor, without notice to or assent by such Grantor, to the extent permitted by
applicable law, to do the following:
(i) to ask for, demand, xxx for, collect, receive and
give acquittance for any and all moneys due or to become due with
respect to the Collateral of such Grantor,
(ii) to receive, take, endorse, assign and deliver any and
all checks, notes, drafts, acceptances, documents and other negotiable
and non-negotiable instruments, documents and chattel paper taken or
received by the Trustee in connection with any of the Collateral
Documents,
(iii) to commence, file, prosecute, defend, settle,
compromise or adjust any claim, suit, action or proceeding with respect
to the Collateral of such Grantor,
(iv) to sell, transfer, assign, foreclose or otherwise
deal in or with the Collateral or any part thereof pursuant to the
terms and conditions of the Collateral Documents, and
(v) to do, at its option and at the expense and for the
account of such Grantor, at any time or from time to time, all acts and
things which the Trustee deems
21
reasonably necessary or desirable to protect or preserve the Collateral
or the Trust Estate and to realize upon the Collateral.
(d) Each Grantor agrees that, upon the occurrence and during the
continuance of an Actionable Default, then and in every such case, subject to
any mandatory requirements of applicable law then in effect, the Trustee may:
(i) personally, or by agents or attorneys,
immediately retake possession of the Collateral of such Grantor or any
part thereof, from such Grantor or any other Person who then has
possession of any part thereof with or without notice or process of
law, and for that purpose may enter upon such Grantor's premises where
any of such Collateral is located and remove the same and use in
connection with such removal, at the sole cost and expense of such
Grantor, any and all services, supplies, aids and other facilities of
such Grantor; and
(ii) instruct the obligor or obligors on any
agreement, instrument or other obligation constituting the Collateral
of such Grantor to make any payment required by the terms of such
instrument or agreement directly to the Trustee; and
(iii) sell or otherwise liquidate, or direct such
Grantor to sell or otherwise liquidate, any or all investments made in
whole or in part with its Collateral or any part thereof, and take
possession of the proceeds of any such sale or liquidation; and
(iv) take possession of the Collateral of such
Grantor or any part thereof, by directing such Grantor in writing to
deliver the same to the Trustee at any reasonable place or places
designated by the Trustee, in which event such Grantor shall at its own
expense (a) forthwith cause the same to be moved to the place or places
so designated by the Trustee and there delivered to the Trustee, (b)
store and keep any Collateral so delivered to the Trustee at such place
or places pending further action by the Trustee, and (c) while such
Collateral shall be so stored and kept, provide such guards and
maintenance services as shall be necessary to protect the same and to
preserve and maintain them in good condition.
SECTION 6.3 Disposition of Collateral. (a) Any Collateral repossessed
by the Trustee under or pursuant to Section 6.2 and any other Collateral whether
or not so repossessed by the Trustee, may be sold, leased or otherwise disposed
of under one or more contracts or as an entirety, and without the necessity of
gathering at the place of sale the property to be sold, and in general in such
manner, at such time or times, at such place or places and on such terms and for
such prices as the Trustee may, in compliance with any mandatory requirements of
applicable law, determine to be commercially reasonable. Upon the occurrence and
during the continuance of an Actionable Default, the Trustee shall have the
power to foreclose any Grantor's right of redemption in its Collateral by sale,
lease or other disposition of such Collateral in accordance with the Uniform
Commercial Code as enacted in each state where such Collateral is located. Any
of the Collateral may be sold, leased or otherwise disposed of in the condition
in which the same existed when taken by the Trustee or after any overhaul or
repair which the Trustee shall determine to be commercially reasonable, the cost
of such overhaul or repair to be borne by the Grantors. Any such disposition
which shall be a private sale or other private proceedings permitted by the
requirements of
22
applicable law shall be made after written notice to the Grantor whose
Collateral is to be disposed of specifying the time at which such disposition is
to be made and the intended sale price or other consideration therefor. Any such
disposition which shall be a public sale permitted by such requirements shall be
made after written notice to the Grantor whose Collateral is to be disposed of
specifying the time and place of such sale and, in the absence of applicable
requirements of law, shall be by public auction. To the extent permitted by any
such requirement of law, the Trustee or any Secured Party may itself bid for and
become the purchaser of the Collateral, or any item thereof, offered by sale in
accordance with this Section 6 without accountability to such Grantor. If, under
mandatory requirements of applicable law, the Trustee shall be required to make
disposition of the Collateral within a period of time which does not permit the
giving of notice to a Grantor as hereinabove specified, the Trustee need give
such Grantor only such notice of disposition as shall be reasonably practicable
in view of such mandatory requirements of applicable law.
(b) No notification need be given to Grantor if it has signed,
after an Actionable Default, a statement renouncing or modifying any right to
notification of sale or other intended disposition. In addition to, and not by
way of limitation of, the rights and remedies granted to it in the Collateral
Documents, the Trustee shall have all the rights and remedies of a secured party
under the Uniform Commercial Code of the state in which the Collateral is
located.
SECTION 6.4 Waiver of Rights and Claims.
(a) Except as otherwise provided in this Agreement, EACH GRANTOR
HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE OF JUDICIAL
HEARING IN CONNECTION WITH THE TRUSTEE'S TAKING POSSESSION OR THE TRUSTEE'S
DISPOSITION OF ANY OF THE COLLATERAL INCLUDING, WITHOUT LIMITATION, ANY AND ALL
PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH
RIGHT WHICH SUCH GRANTOR WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY
STATUTE OF THE UNITED STATES OR OF ANY STATE, and each Grantor hereby further
waives:
(i) all damages occasioned by such taking of
possession except any damages which are the direct result of the
Trustee's gross negligence or willful misconduct;
(ii) all other requirements as to the time, place
and terms of sale or other requirements with respect to the enforcement
of the Trustee's rights hereunder; and
(iii) all rights of redemption, appraisement,
valuation, stay, extension or moratorium now or hereafter in force
under any applicable law in order to prevent or delay the enforcement
of this Agreement or the absolute sale of the Collateral or any portion
thereof, and each Grantor, for itself and all Persons who may claim
under it, insofar as it or, they, now or hereafter lawfully may, hereby
waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of each Grantor therein and thereto, and
shall be a perpetual bar both at law and in equity against any
23
Grantor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from,
through or under any Grantor.
(b) Each Grantor, to the extent it may lawfully do so, on behalf
of itself and all who may claim through or under it, including, without
limitation, any and all subsequent creditors, vendees, assignees and
lienholders, expressly waives and releases any, every and all rights to demand
or to have any marshalling of the Trust Estate upon any sale, whether made under
any power of sale granted under the Collateral Documents, pursuant to judicial
proceedings, or upon any foreclosure or any enforcement of the Collateral
Documents, and consents and agrees that the Trust Estate may at any such sale be
offered and sold as an entirety.
SECTION 6.5 Right to Initiate Judicial Proceedings, etc. If and only if
the Trustee shall have received a Notice of Actionable Default and during such
time as such Notice of Actionable Default shall not have been withdrawn in
accordance with the provisions of Section 6.1(b), (i) the Trustee shall have the
right and power to institute and maintain such suits and proceedings as it may
be directed in writing (A) by any Bank Secured Party to protect and enforce the
rights vested in it by the Collateral Documents (other than in respect of the
Xxxxxxx Indenture Collateral) or (B) by the Required Secured Parties to protect
and enforce the rights vested in them by the Collateral Documents with respect
to the Xxxxxxx Indenture Collateral, and (ii) the Trustee may, either after
entry or without entry, proceed by suit or suits at law or in equity to enforce
such rights to foreclose upon the Collateral and to sell all or, from time to
time, any of the Trust Estate under the judgment or decree of a court of
competent jurisdiction.
SECTION 6.6 Appointment of a Receiver. If a receiver of the Trust
Estate shall be appointed in judicial proceedings, the Administrative Agent may
be appointed as such receiver. Notwithstanding the appointment of a receiver,
the Trustee shall, to the extent permitted by law, be entitled to retain
possession and control of all cash held by or deposited with it or its agents or
co-trustees pursuant to any provision of any Collateral Document.
SECTION 6.7 Exercise of Powers. All of the powers, remedies and rights
of the Trustee as set forth in this Agreement may be exercised by the Trustee in
respect of any Collateral Document accepted by the Trustee in writing as though
set forth at length therein and all the powers, remedies and rights of the
Trustee as set forth in any Collateral Document may be exercised from time to
time as herein and therein provided and the indemnities and protections in favor
of the Trustee provided for herein shall apply to the Trustee acting pursuant to
any such Collateral Document as if set forth in full therein.
SECTION 6.8 Control by Required Banks and Required Secured Parties.
(a) Subject to Section 6.8(b) of this Agreement, if the Trustee
shall have received a Notice of Actionable Default and so long as such Notice of
Actionable Default has not been withdrawn in accordance with the provisions of
Section 6.1(b), the Required Banks and, with respect to the Xxxxxxx Indenture
Collateral, the Required Secured Parties, shall have the right, by an instrument
in writing executed and delivered to the Trustee, to direct the Trustee to
exercise, or to refrain from exercising, any right, remedy, trust or power
available to or conferred upon the Trustee hereunder and in connection
therewith, to direct the time, method and place of conducting any
24
proceeding for any right or remedy available to the Trustee, or of exercising
any trust or power conferred on the Trustee, or for the appointment of a
receiver, or for the taking of any other action authorized by this Agreement,
provided that the Trustee shall have received adequate security or indemnity as
provided in Section 9.4(d) of this Agreement.
(b) The Trustee shall not be obligated to follow any written
directions received pursuant to Section 6.8 (a) or Section 3.3 of this Agreement
to the extent the Trustee has received a written opinion of its counsel, which
counsel shall be Xxxxx & Xxx Xxxxx, PLLC or shall be other counsel reasonably
satisfactory to the Required Banks or the Required Secured Parties, as the case
may be, to the effect that such directions are in conflict with any provisions
of law or any applicable Collateral Document or any order of any court or
Governmental Authority; provided, however, under no circumstances shall the
Trustee be liable for following the written instructions of the Required Banks
or the Required Secured Parties.
(c) Nothing in this Section 6.8 shall impair the right of the
Trustee in its discretion to take or omit to take any action which is deemed
proper by the Trustee and which it believes in good faith is not inconsistent
with any direction of the Required Banks or the Required Secured Parties;
provided, however, the Trustee shall not be under any obligation, as a result of
this Section 6.8 or any other provision of this Agreement, to take any action
which is discretionary with the Trustee under the provisions hereof or under any
other Collateral Document unless so directed by the Required Banks or the
Required Secured Parties.
(d) If the Trustee has received written directions under this
Agreement from both the Required Secured Parties and the Required Banks and such
directions are inconsistent with each other, the Trustee shall follow the
directions of the Required Secured Parties.
SECTION 6.9 Remedies Not Exclusive.
(a) No remedy conferred upon or reserved to the Trustee herein or
in the other Collateral Documents is intended to be exclusive of any other
remedy or remedies, but every such remedy shall the cumulative and shall be in
addition to every other remedy conferred in any of the Collateral Documents or
now or hereafter existing at law or in equity or by statute.
(b) No delay or omission by the Trustee in the exercise of any
right, remedy or power accruing upon an Actionable Default shall impair any such
right, remedy or power or shall be construed to be a waiver of any Actionable
Default or an acquiescence therein; and every right, power and remedy given by
any Collateral Document to the Trustee may be exercised from time to time and as
often as may be deemed expedient by the Trustee.
(c) In case the Trustee shall have proceeded to enforce any right,
remedy or power under any Collateral Document and the proceeding for the
enforcement thereof shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Trustee, then and in every such case
the Grantors, the Trustee and the Secured Parties shall, subject to any effect
of or determination in such proceeding, severally and respectively be restored
to their former positions and rights under the Collateral Documents with respect
to the Trust Estate and in all other
25
respects, and thereafter all rights, remedies and powers of the Trustee shall
continue as though no such proceeding had been taken.
(d) All rights of action and rights to assert claims upon or under
the Collateral Documents may be enforced by the Trustee without the possession
of any Debt Instrument or the production thereof in any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its name as Trustee and any recovery of judgment
shall be held as part of the Trust Estate.
SECTION 6.10 Limitation on Trustee's Duties in Respect of Collateral.
Beyond its duties expressly set forth in those Collateral Documents executed or
otherwise accepted in writing by the Trustee as to the custody thereof and the
accounting to the Grantors and the Secured Parties for moneys received and held
by it hereunder, the Trustee shall not have any duty to the Grantors or the
Secured Parties with respect to any Collateral in its possession or control or
in the possession or control of its agents or nominees, any income thereon or
the preservation of rights against prior parties or any other rights pertaining
thereto.
SECTION 6.11 Limitation by Law. All the provisions of this Section 6
are intended to be subject to all applicable mandatory provisions of law which
may be controlling in the premises and to be limited to the extent necessary so
that they will not render this Agreement invalid or unenforceable in whole or in
part.
SECTION 6.12 Absolute Rights of Secured Parties. Notwithstanding any
other provision of any Collateral Document, but subject in all cases to the
rights of the Required Banks and the Required Secured Parties under Section 6.8,
neither (i) the right of each Secured Party, which is absolute and conditional,
to receive payments of the Secured Debt held by such Secured Party on or after
the due date thereof as therein expressed, to institute suit for the enforcement
of such payment on or after such due date, or to assert its position and views
as a secured creditor in, and to otherwise exercise any right (other than the
right to enforce any Lien on the Collateral, which shall in all circumstances be
exercisable only by the Trustee) it may have in connection with, a case under
the Bankruptcy Code in which a Grantor is a debtor, nor (ii) the obligation of
each Grantor, which is also absolute and unconditional, to pay the Secured Debt
owing by such Grantor to each Secured Party at the time and place expressed in
the Debt Instruments, shall be impaired or affected without the written consent
of such Secured Party.
Section 6.13 Restatement of Rights. The provisions of this Collateral
Trust Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of Secured Debt is rescinded or must otherwise be
returned by the Trustee or any Secured Party upon the insolvency, bankruptcy or
reorganization of a Grantor or otherwise, all as though such payment had not
been made.
SECTION 7
COLLATERAL ACCOUNT; APPLICATION OF MONEYS
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SECTION 7.1 The Collateral Account. There has been established by the
Trustee and, at all times hereafter until the trusts created by this Agreement
shall have terminated, there shall be maintained with the Trustee, an account
which is entitled the "Collateral Account" (herein called the "Collateral
Account"). The Collateral Account has been established and shall be maintained
by the Trustee at its offices in Charlotte, North Carolina. All moneys which are
received by the Trustee with respect to the Collateral after the Trustee shall
have received a Notice of Actionable Default which shall not have been withdrawn
in accordance with the terms of Section 6.1(b) shall be deposited in the
Collateral Account and thereafter shall be held, applied and/or disbursed by the
Trustee in accordance with the terms of this Agreement. All moneys received by
the Trustee with respect to all or any part of the Collateral either (i) prior
to the Trustee's receipt of a Notice of Actionable Default, or (ii) after the
withdrawal of all pending Notices of Actionable Default in accordance with the
terms of Section 6.1(b) and prior to Trustee's receipt of any additional Notice
of Actionable Default, shall be delivered to the Borrower. All moneys received
by the Trustee with respect to all or any part of the Collateral between the
receipt by the Trustee of any Notice of Actionable Default and the withdrawal of
all pending Notices of Actionable Default in accordance with the terms of
Section 6.1(b) shall, to the extent not distributed pursuant to the terms of
Section 7.4 of this Agreement, be delivered to the Borrower following the
withdrawal, if any, of all pending Notices of Actionable Default in accordance
with the terms of Section 6.1(b).
SECTION 7.2 Grant of Security Interest; Control of Collateral Account.
(a) To secure the prompt and complete payment, when due, of all
amounts owing to the Secured Parties and the Trustee hereunder and under the
Collateral Documents and the Secured Debt, and the performance by each Grantor
of its covenants and obligations to be performed by it pursuant to the Debt
Instruments and the Collateral Documents, each Grantor hereby assigns and
pledges to the Trustee for itself hereunder and for the ratable benefit of the
Secured Parties, and grants to the Trustee for itself hereunder and for the
ratable benefit of the Secured Parties, a security interest in all of the right,
title and interest of such Grantor in and to the following, whether presently
existing or hereafter arising or acquired (the "Trust Agreement Collateral";
provided, however, that to the extent any of the following property relates to
Collateral which is not Xxxxxxx Indenture Collateral, the security interest
therein granted to the Trustee in this Section 7.2(a) shall be held by the
Trustee only for the benefit of the Trustee and the Bank Secured Parties: (i)
the Collateral Account, all cash deposited therein, all certificates and
instruments, if any, from time to time representing the Collateral Account, (ii)
all investments from time to time made pursuant to Section 7.3, (iii) all notes,
certificates of deposit and other instruments from time to time hereafter
delivered to or otherwise possessed by the Trustee in substitution for, or in
addition to, any or all of the then existing Trust Agreement Collateral, (iv)
all interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the then existing Trust Agreement Collateral and, (v) to the
extent not covered above, all Proceeds of any and all collections, earnings and
accruals with respect to any or all of the foregoing (whether the same are
acquired before or after the commencement of a case under the Bankruptcy Code by
or against such Grantor, as debtor).
(b) All right, title and interest in and to the Collateral Account
shall vest in the Trustee, and funds on deposit in the Collateral Account and
other Trust Agreement Collateral shall constitute
27
part of the Trust Estate. The Collateral Account shall be subject to the
exclusive dominion and control of the Trustee.
SECTION 7.3 Investment of Funds Deposited in Collateral Account. The
Trustee shall invest and reinvest moneys on deposit in the Collateral Account at
any time in one or more of the following, in its sole discretion:
(a) marketable obligations of the United States having a
maturity not exceeding the date one year from the date of acquisition;
(b) marketable obligations directly and fully guaranteed
by the United States having a maturity not exceeding the date one year
from the date of acquisition;
(c) banker's acceptances and certificates of deposit and
other interest-bearing obligations issued by NationsBank, N.A.
organized under the laws of the United States or any state thereof or a
Schedule A Canadian bank (provided, however, that any such bank has
capital, surplus and undivided profits aggregating at least
$200,000,000), in each case having a maturity not exceeding the date
one year from the date of acquisition;
(d) commercial paper (except for commercial paper issued
by any Grantor or any of its affiliates) rated A-1 or the equivalent
thereof (or higher) by Standard & Poor's Corporation or P-1 or the
equivalent thereof (or higher) by Xxxxx'x Investors Service, Inc., and
having a maturity not exceeding the date ninety (90) days from the date
of acquisition;
(e) repurchase obligations entered into with NationsBank
or any other bank (provided, however, that such bank meets the
requirements set forth in the proviso to Section 7.3(c) above), having
a maturity not exceeding the earlier of the Distribution Date next
following the date of acquisition or the date thirty (30) days from the
date of acquisition, and collateralized by investments described in
Sections 7.3(a) and 7.3(b), provided that the Trustee or an agent
thereof takes immediate physical possession of such collateral; and
(f) taxable government money market portfolios comprised
of obligations issued or guarantees as to payment of principal and
interest by the full faith and credit of the United States of America.
provided, however, that in order to provide the Secured Parties and the Trustee
with a perfected security interest therein, each such investment shall be
either:
(i) evidenced, or deemed under applicable
federal regulations to be evidenced, by negotiable certificates or
instruments or nonnegotiable certificates or instruments issued in the
name of the Trustee, which (together with any appropriate instruments
of transfer) are delivered to, and held by, the Trustee or an agent
thereof (which shall not be any Grantor or any of its affiliates); or
28
(ii) in book-entry form and in which (in the
opinion of independent counsel to the Trustee) the Trustee shall have a
perfected ownership or security interest which under applicable law
shall not be subject to any other ownership or security interest;
and provided, further, that the maximum amount of the funds held in the
Collateral Account which may be invested in obligations of the types described
in clauses (c), (d) and (e) above of any one issuer shall not exceed the lesser
of five percent (5%) of such funds or $5,000,000. All such investments and the
interest and income received thereon and therefrom and the net proceeds realized
on the sale hereof shall be held in the Collateral Account as part of the Trust
Estate.
SECTION 7.4 Application of Moneys. Subject to Section 7.1, all moneys
held by the Trustee in the Collateral Account shall, to the extent available for
distribution, be distributed by the Trustee on the first and each succeeding
Distribution Date as follows:
FIRST: To the Trustee in an amount equal to the Trustee's
Fees which are unpaid as of such Distribution Date, and to any Secured
Party which has theretofore advanced or paid any such Trustee's Fees in
an amount equal to the amount thereof so advanced or paid by such
Secured Party prior to such Distribution Date; provided, however, that
nothing herein is intended to relieve any Grantor of its obligation to
pay such costs, fees, expenses and liabilities from funds outside of
the Collateral Account;
SECOND: To the extent such moneys relate to Collateral which
constitutes Xxxxxxx Indenture Collateral (A) the percentage of such
moneys equal to the percentage that the then outstanding Bank
Obligations are of the then outstanding Obligations shall be
distributed to the Administrative Agent for the ratable benefit of the
Bank Secured Parties, up to an amount equal to any outstanding Bank
Obligations, and (B) the percentage of such moneys equal to the
percentage that the then outstanding Xxxxxxx Indenture Obligations are
of the then outstanding Obligations shall be distributed to the Xxxxxxx
Indenture Trustee for application in accordance with the terms of the
Xxxxxxx Indenture, up to the amount equal to the then outstanding
Xxxxxxx Indenture Obligations; and to the extent such moneys relate to
Collateral which is not Xxxxxxx Indenture Collateral, to the
Administrative Agent for the ratable benefit of the Bank Secured
Parties up to an amount equal to any outstanding Bank Obligations (for
purposes of this paragraph of Section 7.4, an Obligation shall not be
considered to be outstanding after an amount sufficient to pay such
Obligation has been distributed under this paragraph to the
Administrative Agent for the ratable benefit of the Bank Secured
Parties or to the Xxxxxxx Indenture Trustee for application in
accordance with the terms of the Xxxxxxx Indenture, as applicable); and
THIRD: Any surplus then remaining shall be paid to the
Borrower or its successors or assigns, or to whomever may be lawfully
entitled to receive the same or as a court of competent jurisdiction
may direct; provided, however, that if any Secured Party shall have
notified the Trustee in writing that such Secured Party is entitled to
the benefits of an indemnification, reimbursement or similar provision
under which amounts are not yet due but with respect to which any
Grantor continues to be contingently liable, and amounts payable by
such Grantor with respect thereto are secured by the Trust Estate, the
Trustee shall continue to hold the amount specified in such notice in
the Collateral Account until
29
such Grantor's liability with respect thereto is discharged or released
to the satisfaction of such Secured Party.
The Secured Parties have agreed and acknowledged that the provisions of this
Section 7.4 are for their benefit and that if any Secured Party shall receive
any moneys contrary to the provisions of this Agreement, such Secured Party
shall forthwith turn such moneys over to the Trustee to be distributed in
accordance with the provisions of this Agreement.
SECTION 8
AGREEMENT WITH TRUSTEE
SECTION 8.1 Delivery of Debt Instruments. On the date of this Agreement
the Grantors will deliver to the Trustee a true and complete copy of the
Restated Credit Agreement, an executed counterpart of any Collateral Documents
and any Pledged Stock and other Collateral to be delivered pursuant thereto.
Each Grantor agrees that it will deliver to the Trustee (i) promptly upon the
execution thereof, a true and complete copy of any and all Debt Instruments,
Collateral Documents and all amendments, modifications or supplements to any
Debt Instrument or Collateral Documents entered into by such Grantor subsequent
to the date of this Agreement and (ii) when required by the Collateral
Documents, any Pledged Stock or other Collateral to be delivered pursuant
thereto.
SECTION 8.2 Compensation and Expenses. The Grantors agree to pay to the
Trustee (i) the Trustee's Fees as compensation for the Trustee's services
hereunder and under the other Collateral Documents and for administering the
Trust Estate as shall be mutually agreed by the Grantors and the Trustee, and
(ii) from time to time, upon demand, all of the fees, costs and expenses of the
Trustee (including, without limitation, the reasonable fees and disbursements of
its counsel and such special counsel as the Trustee elects to retain) (A)
arising in connection with the preparation, execution, delivery, modification,
restatement, amendment or termination of this Agreement and each other
Collateral Document or the enforcement (whether in the context of a civil
action, adversary proceeding, workout or otherwise) of any of the provisions
hereof or thereof, or (B) incurred or required to be advanced in connection with
the administration of the Trust Estate, the sale or other disposition or the
custody, preservation or protection of Collateral pursuant to any Collateral
Document (including, without limitation, in connection with actions taken by the
Trustee pursuant to Section 3.3) and the exercise or enforcement of the
Trustee's rights under any Collateral Document and in and to the Collateral and
the Trust Estate. As security for such payment and the payment of the
obligations set forth in Section 8.3 and 8.4, the Trustee shall have a Lien
prior to such of the Secured Debt as constitutes Obligations upon all Collateral
and other property and funds held or collected by the Trustee as part of the
Trust Estate. The obligations of the Grantors to pay amounts due under this
Section 8.2 shall survive the termination of this Agreement.
SECTION 8.3 Stamp and Other Similar Taxes. The Grantors agree to
indemnify and hold harmless the Trustee and each Secured Party from, and shall
reimburse the Trustee and each Secured Party for, any present or future claim
for liability for any stamp or other similar tax and any penalties or interest
with respect thereto which may be assessed, levied or collected by any
jurisdiction in connection with any Collateral Document, the Trust Estate or the
attachment or
30
perfection of the security interest granted to the Trustee in any Collateral.
The obligations of the Grantors under this Section 8.3 shall survive the
termination of the other provisions of this Agreement.
SECTION 8.4 Filing Fees, Excise Taxes, etc. The Grantors agree to pay
or to reimburse the Trustee for any and all amounts in respect of all search,
filing, recording and registration fees, taxes, excise taxes and other similar
imposts which may be payable or determined to be payable in respect of the
execution, delivery, performance and enforcement of each Collateral Document and
agree to save the Trustee harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
and fees. The obligations of the Grantors under this Section 8.4 shall survive
the termination of the other provisions of this Agreement.
SECTION 8.5 Indemnification.
(a) The Grantors agree to pay, and indemnify and hold harmless the
Trustee and each of its employees and agents from and against, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
amounts paid in settlements, suits, costs, expenses or disbursements of any kind
or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of the Collateral Documents, the Collateral and
the Trust Estate, except to the extent arising from the gross negligence or
willful misconduct of the Trustee or its employees or such agents as are seeking
indemnification. Without limiting the foregoing, the Grantors agree to pay, and
indemnify and hold harmless the Trustee and each of its employees and agents
from and against, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, amounts paid in settlements, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the foreclosure
by the Trustee on any Collateral consisting of real property to the extent such
foreclosure is permitted by this Agreement, except to the extent arising from
the gross negligence or willful misconduct of the Trustee or its employees or
such agents as are seeking indemnification. As security for such payment, the
Trustee shall have a Lien prior to such of the Secured Debt constituting
Obligations upon all Collateral and other property and funds held or collected
by the Trustee as part of the Trust Estate.
(b) In any suit, proceeding or action brought by the Trustee under
or with respect to the Collateral for any sum owing thereunder, or to enforce
any provisions thereof, or of any of the Collateral Documents, the Grantors will
save, indemnify and keep the Trustee and the Secured Parties harmless from and
against all expense, loss or damage suffered by reason of any defense, set-off,
counterclaim, recoupment or reduction of liability whatsoever of the obligee
thereunder, arising out of a breach by the Grantors of any of their respective
obligations thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such obligee or its successors
from the Grantors, and all such obligations of the Grantors shall be and remain
enforceable against and only against the Grantors and shall not be enforceable
against the Trustee or any Secured Party.
(c) If and to the extent that the obligations of the Grantors
under this Section 8.5 are unenforceable for any reason, each Grantor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
31
(d) The agreements in this Section 8.5 shall survive the
termination of the other provisions of this Agreement.
SECTION 8.6 Further Assurances. At any time and from time to time, upon
the written request of the Trustee, and at the expense of the Grantors, each
Grantor will promptly execute and deliver any and all such further instruments
and documents and take such further action as the Trustee may reasonably deem
necessary or desirable to obtain the full benefits of the Collateral Documents
and the rights and powers therein granted, including, without limitation, the
filing of any financing or continuation statements or other instruments to
perfect the Liens and security interests granted thereby. Each Grantor shall,
not later than thirty (30) days after the Required Banks' or the Trustee's
request therefor, deliver to the Trustee an opinion of independent counsel,
which counsel shall be reasonably satisfactory to the Required Banks, addressed
to the Trustee for the benefit of the Secured Parties, concerning the continued
perfection of the Liens and security interests created by the Collateral
Documents (excluding, however, those Liens and security interests which, in
accordance with the terms of the Collateral Documents, have been released);
provided, however, that the Trustee shall have no obligation at any time to
request such opinion from any Grantor. Each Grantor shall, in all of its
published financial statements customarily prepared with footnotes or filed with
the Securities and Exchange Commission, indicate by footnote or otherwise that
the Secured Debt is secured pursuant to the Collateral Documents.
SECTION 9
THE TRUSTEE
SECTION 9.1 Appointment of Trustee and Acceptance of Trust. The Bank
Secured Parties and, on behalf of the holders of Xxxxxxx Debentures, the Xxxxxxx
Indenture Trustee, hereby appoint the Trustee under the terms and conditions of
this Agreement, and the Trustee, for itself and its successors, hereby accepts
the trusts created by this Agreement upon the terms and conditions hereof,
including those contained in this Section 9.
SECTION 9.2 Exculpatory Provisions.
(a) The Trustee shall not be responsible in any manner whatsoever
for the correctness of any recitals, statements, representations or warranties
contained in any of the Collateral Documents, except for those made by the
Trustee. The Trustee makes no representations as to the value or condition of
the Trust Estate or any part thereof, or as to the title of any of the Grantors
thereto or as to the security afforded by the Collateral Documents or, except as
expressly set forth in Section 3.2 of this Agreement, as to the validity,
execution, enforceability, legality, perfection, priority or sufficiency of any
Collateral Document or Supporting Document or of the Secured Debt secured
thereby, and the Trustee shall incur no liability or responsibility in respect
of any such matters. The Trustee shall not be responsible for insuring, or
monitoring or maintaining the insurance on, the Trust Estate or for the payment
of taxes, charges, assessments or Liens upon the Trust Estate or otherwise as to
the maintenance of the Trust Estate, except that (i) in the event the Trustee
enters into possession of a part or all of the Trust Estate, the Trustee shall
preserve the part in its possession, and (ii) the Trustee will promptly, and at
its own expense, take such action as may be
32
necessary duly to remove and discharge (by bonding or otherwise) any Lien on any
part of the Trust Estate resulting from claims against it (whether individually
or as Trustee) not related to the administration of the Trust Estate or (if so
related) resulting from gross negligence or willful misconduct on its part.
Notwithstanding anything to the contrary contained in this Agreement and in
furtherance of the immediately preceding sentence, the Trustee shall not be
responsible for the attachment, perfection, priority or enforceability of any
Lien created or purported to be created by any Collateral Document or Supporting
Document, the adequacy, sufficiency or effectiveness of any Supporting Document
or the value of any Collateral granted pursuant to any Collateral Document from
time to time. The Trustee shall not be responsible for the filing or recording
of any financing statement, mortgage, security agreement or any other Collateral
Document or Supporting Document in any public office or for the maintaining of
any records of any such filings or recordings, nor shall the Trustee have any
duty to file or record, or to advise the Secured Parties of the need to file or
record, any continuation statements or other public notices relating to the
perfection or continued perfection of any Collateral.
(b) The Trustee shall not be required to ascertain or inquire as
to the performance by any Grantor of any of the covenants or agreements
contained in any Collateral Document or in any Debt Instrument. Without limiting
the foregoing, the Trustee shall have no duty to (i) enforce any obligations of
the Grantors to deliver any agreement, instrument, document, certificate,
schedule, list, opinion of counsel or other items required to be delivered to
the Trustee hereunder, (ii) advise any Secured Party of the failure of any
Guarantor to deliver the same or (iii) to monitor compliance by the Grantors of
any requirement to maintain insurance on any of the Collateral. Whenever it is
necessary, or in the opinion of the Trustee advisable, for the Trustee to
ascertain the identity of any Secured Party or the amount of Secured Debt then
held by a Secured Party, the Trustee may rely on a certificate of such Secured
Party, the Administrative Agent or the Xxxxxxx Indenture Trustee.
(c) Subject to the provisions of applicable law concerning the
Trustee's duty of care with respect to certificates and notes evidencing the
Pledged Stock in the Trustee's possession, the Trustee shall not be personally
liable for any acts, omissions, errors of judgment or mistakes of fact or law
made, taken or omitted to be made or taken by it in accordance with any
Collateral Document (including, without limitation, acts, omissions, errors or
mistakes with respect to the Collateral), except for those arising out of or in
connection with the Trustee's gross negligence or willful misconduct.
SECTION 9.3 Delegation of Duties. The Trustee may execute any of the
trusts or powers hereof and perform any duty hereunder either directly or by or
through agents, nominees or attorneys-in-fact, which may include employees or
officers of any Grantor, provided that the Trustee shall obtain a written
acknowledgment from such agents, nominees or attorneys-in-fact that they shall
be liable to the Secured Parties for losses or damages incurred by any Secured
Party as a result of such agent's nominee's or attorneys-in-fact gross
negligence or willful misconduct as and to the extent the Trustee would be
liable for such losses or damages if the actions or omissions of such agents,
nominees or attorneys-in-fact constituting such gross negligence or willful
misconduct had been actions or omissions of the Trustee. The Trustee shall be
entitled to rely on advice of counsel concerning all matters pertaining to such
trusts, powers and duties. The Trustee shall not be responsible for any
negligence or misconduct of any agents, nominees or attorneys-in-fact selected
by it without gross negligence or willful misconduct.
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SECTION 9.4 Reliance by Trustee.
(a) Whenever in the administration of the trusts of this Agreement
the Trustee shall deem it necessary or desirable that a matter be proved or
established with respect to any Grantor in connection with the taking, suffering
or omitting of any action hereunder by the Trustee, such matter (unless other
evidence in respect thereof is herein specifically prescribed) may be deemed to
be conclusively proved or established by a certificate of an Authorized Officer
of such Grantor delivered to the Trustee, and such Certificate shall be full
warranty to the Trustee for any action taken, suffered or omitted in reliance
thereon; subject, however, to the provisions of Section 9.5(b) of this
Agreement.
(b) The Trustee may consult with its counsel, which counsel shall
be Xxxxx & Xxx Xxxxx, PLLC or shall be counsel reasonably satisfactory to the
Required Banks, accountants or other experts in connection with the fulfillment
of its duties hereunder, and the Trustee shall be entitled to rely on, and shall
be fully protected in acting upon, the opinion of such counsel, accountants or
other experts in connection with any action taken, omitted to be taken or
suffered by Trustee in fulfillment of its duties hereunder. The Trustee shall
have the right at any time to seek instructions concerning the administration of
the Trust Estate from any court of competent jurisdiction.
(c) The Trustee may rely, and shall be fully protected in acting,
upon any resolution, statement, certificate, instrument, opinion, report,
notice, request, consent, order, bond or other paper or document which it does
not in good faith believe to be other than genuine and to have been signed or
presented by the proper party or parties or, in the case of cables, telecopies
and telexes, to have been sent by the proper party or parties in the absence of
its gross negligence or willful misconduct, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of any Collateral Document.
(d) If the Trustee has been requested or is otherwise required
hereby to take any action pursuant to this Agreement, the Trustee shall not be
under any obligation to exercise any of the rights or powers vested in the
Trustee by this Agreement or any Collateral Document or to otherwise take such
action unless the Trustee shall have been provided adequate security and
indemnity against the costs, expenses and liabilities which may be incurred by
it in compliance with such request or direction or in taking such action,
including such reasonable advances as may be requested by the Trustee.
SECTION 9.5 Limitations on Duties of Trustee.
(a) The Trustee shall be obliged to perform only such duties as
are specifically set forth in any Collateral Document which has been executed by
it or otherwise accepted by it in writing, and no implied covenants or
obligations shall be read into any Collateral Document against the Trustee. The
Trustee shall, upon receipt of a Notice of Actionable Default and during such
time as such Notice of Actionable Default shall not have been withdrawn in
accordance with the provisions of Section 6.1(b) and unless prevented from doing
so by applicable law or by order of a court or other Governmental Authority,
exercise the rights and powers vested in it by any Collateral
34
Document, and the Trustee shall not be liable with respect to any action taken
or omitted by it in accordance with the direction of the Required Banks or the
Required Secured Parties pursuant to Section 6.8 of this Agreement. If at any
time the Trustee shall seek directions of the Required Banks or the Required
Secured Parties with respect to any such action to be taken or omitted by it
under any of the Collateral Documents, the Trustee shall not be required to take
or omit such action until it shall have received such direction.
(b) Except as herein otherwise expressly provided, including,
without limitation, upon the written request of the Required Banks or the
Required Secured Parties pursuant to Section 6.8 of this Agreement, the Trustee
shall not be under any obligation to take any action which is discretionary with
the Trustee under the provisions of any Collateral Document. The Trustee shall
furnish to the Administrative Agent and, if it relates to the Xxxxxxx Indenture
Collateral, to the Xxxxxxx Indenture Trustee, promptly upon receipt thereof a
copy of each certificate or other paper furnished to the Trustee by any Grantor
under or in respect of any Collateral Document or any of the Trust Estate,
unless by the express terms of any Collateral Document a copy of the same is
required to be furnished by some other Person directly to the Administrative
Agent or the Xxxxxxx Indenture Trustee, as applicable, or the Trustee shall have
determined that the same has already been so furnished; provided, however, that
the Trustee shall have no liability for its inadvertent failure to furnish any
such Person with any such copies.
SECTION 9.6 Moneys to be Held in Trust. All moneys received by the
Trustee under or pursuant to any provision of any Collateral Document shall be
held in trust for the purposes for which they were paid or are held.
SECTION 9.7 Resignation and Removal of the Trustee.
(a) The Trustee may at any time by giving sixty (60) days' prior
written notice to the Grantors and the Secured Parties, resign and be discharged
of the responsibilities hereby created, such resignation to become effective
upon the appointment of a successor Trustee. The Trustee may be removed at any
time and a successor Trustee appointed by the affirmative vote of the Required
Banks; provided that the Trustee shall be entitled to its fees and expenses to
the date of removal; and provided further, that the Trustee's rights pursuant to
Section 8.5 shall survive with respect to any transaction or occurrence prior to
the effective date of such resignation or removal. If no successor Trustee shall
be appointed and approved within sixty (60) days from the date of the giving of
the aforesaid notice of resignation or within sixty (60) days from the date of
such removal, the Trustee shall, or any Secured Party may, apply to any court of
competent jurisdiction to appoint a successor Trustee to act until such time, if
any, as a successor Trustee shall have been appointed as above provided. Any
successor Trustee so appointed by such court shall immediately and without
further act be superseded by any successor Trustee approved by the Required
Banks as above provided.
(b) If at any time the Trustee shall resign, be removed or
otherwise become incapable of acting, or if at any time a vacancy shall occur in
the office of the Trustee for any other cause, a successor Trustee may be
appointed by the Required Banks, and the powers, duties, authority and title of
the predecessor Trustee terminated and canceled without procuring the
resignation of such predecessor Trustee, and without any other formality (except
as may be required by applicable law)
35
than the appointment and designation of a successor Trustee in writing, duly
acknowledged, delivered to the predecessor Trustee and the Grantors, and filed
for record in each applicable office, if any, in which this Agreement is
required to be filed. Any successor Trustee appointed pursuant to this Section
9.7(b) must be reasonably acceptable to the Borrower unless at the time of such
appointment a Collateral Event of Default exists.
(c) The appointment and designation referred to in Section 9.7(b)
of this Agreement shall, after any required filing, be full evidence of the
right and authority to make the same and all of the facts therein recited, and
this Agreement shall vest in such successor Trustee, without any further act,
deed or conveyance, all of the estate and title of, and upon any required filing
for record the successor Trustee shall become fully vested with all the estates,
properties, rights, powers, trusts, duties, authority and title of its
predecessors; but any of such predecessors shall, nevertheless, on the written
request of the Required Banks, the Required Secured Parties, any Grantor or any
successor Trustee, execute and deliver an instrument transferring to such
successor Trustee all the estates, properties, rights, powers, trusts, duties,
authority and title of such predecessor hereunder and shall deliver all
securities and moneys held by it to such successor Trustee. Should any deed,
conveyance or other instrument in writing from any Grantor be required by any
successor Trustee for more fully and certainly vesting in such successor Trustee
the estates, properties, rights, powers, trusts, duties, authority and title
vested or intended to be vested in the predecessor Trustee, any and all such
deeds, conveyances and other instruments in writing shall, on request of such
successor Trustee, be so executed, acknowledged and delivered.
(d) Any required filing for record of the instrument appointing a
successor Trustee as hereinabove provided shall be at the expense of the
Grantors. The resignation of any Trustee and the instrument or instrument
removing any Trustee, together with all other instruments, deeds and conveyances
provided for in this Agreement shall, if required by law, be forthwith recorded,
registered and filed by and at the expense of the Grantors, wherever this
Agreement is recorded, registered and filed.
SECTION 9.8 Status of Successors to the Trustee. Every successor to the
Trustee appointed pursuant to Section 9.7 of this Agreement and every
corporation resulting from a merger or consolidation referred to in Section 9.9
of this Agreement shall be a bank or trust company in good standing and having
power so to act, incorporated under the laws of the United States or any state
thereof or the District of Columbia, and having its principal corporate trust
office within the forty-eight (48) contiguous States, and shall also have
capital, surplus and undivided profits of not less than $100,000,000.
SECTION 9.9 Merger of the Trustee. Any corporation into which the
Trustee shall be merged, or with which it shall be consolidated, or any
corporation resulting from any merger or consolidation to which the Trustee
shall be a party, shall be the Trustee under this Agreement without the
execution or filing of any paper or any further act on the part of the parties
hereto.
SECTION 9.10 Additional Co-Trustees; Separate Trustees.
(a) If at any time or times it shall be necessary or prudent in
order to conform to any law of any jurisdiction in which any of the Collateral
shall be located, or the Trustee shall be advised by
36
counsel, satisfactory to it, that it is so necessary or prudent in the interest
of the Secured Parties, or the Required Secured Parties shall in writing so
request, or the Trustee shall deem it desirable for its own protection in the
performance of its duties hereunder, the Trustee and the Grantors shall execute
and deliver all instruments and agreements necessary or proper to constitute
another bank or trust company, or one or more Persons approved by the Trustee
and the Grantors either to act as co-trustee or co-trustees of all or any of the
Collateral, jointly with the Trustee originally named herein or any successor or
successors, or to act as separate trustee or trustees of any such property.
Notwithstanding the foregoing sentence, the Trustee shall not be responsible for
ascertaining whether or not it is at any time necessary or prudent to constitute
another bank or trust company or any other Person(s) to act as co-trustee or a
separate trustee. In the event the Grantors shall not have joined in the
execution of such instruments and agreements within ten (10) days after the
receipt of a written request from the Trustee so to do, or in case a Notice of
Actionable Default shall have been given and not withdrawn, the Trustee may act
under the foregoing provisions of this Section 9.10 without the concurrence of
the Grantors and each Grantor hereby irrevocably appoints the Trustee as its
agent and attorney to act for it under the foregoing provisions of this Section
9.10 in either of such contingencies.
(b) Every separate trustee and every co-trustee, other than any
trustee which may be appointed as successor to NationsBank, N.A., as Trustee,
shall, to the extent permitted by law, be appointed and act and be such, subject
to the following provisions and conditions, namely:
(i) all rights, powers, duties and obligations
conferred upon the Trustee in respect of the custody, control and
management of moneys, papers or securities shall be exercised solely by
NationsBank, N.A., as Trustee, or its successors as the Trustee
hereunder,
(ii) all rights, powers, duties and obligations
conferred or imposed upon the Trustee hereunder shall be conferred or
imposed and exercised or performed by the Trustee and such separate
trustee or separate trustees or co-trustee or co-trustees, except to
the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such separate trustee or separate trustees or co-trustee
or co-trustees;
(iii) no power (a) given hereby to any co-trustee,
co-trustees or separate trustees, or (b) which it is provided hereby to
any co-trustee, co-trustees or separate trustees, may be exercised by
any such co-trustee or co-trustees or separate trustees, except jointly
with, or with the consent in writing of, the Trustee, anything herein
contained in the contrary notwithstanding;
(iv) no trustee or co-trustee hereunder shall be
personally liable by reason of any act or omission of any other trustee
or co-trustee hereunder, and
(v) the Grantors and the Trustee, at any time by
an instrument in writing, executed by them jointly, may accept the
resignation of or remove any such separate trustee or co-trustee, and
in that case, by an instrument in writing executed by the Grantors and
the
37
Trustee jointly, may appoint a successor to such separate trustee or
co-trustee, as the case may be, anything herein contained to the
contrary notwithstanding. In the event that the Grantors shall not have
joined in the execution of any such instrument within ten (10) days
after the receipt of a written request from the Trustee so to do, or in
case a Notice of Actionable Default shall have been given and not
withdrawn, the Trustee shall have the power to accept the resignation
of or remove any such separate trustee or co-trustee and to appoint a
successor without the concurrence of the Grantors, each of the Grantors
hereby irrevocably appointing the Trustee, its agent and attorney to
act for it in such connection in either of such contingencies. In the
event that the Trustee shall have appointed a separate trustee or
separate trustees or co-trustee or co-trustees as above provided, it
may at any time, by an instrument in writing, accept the resignation of
or remove any such separate trustee or co-trustee, the successor to any
such separate trustee or co-trustee to be appointed by the Grantors and
the Trustee, or by the Trustee alone, as hereinabove provided in this
Section 9.10.
SECTION 10
RELEASE OF COLLATERAL
SECTION 10.1 Conditions to Release.
(a) Subject to this Section 10.1, all of the Collateral shall be
released upon the earlier of the dates set forth in clauses (i) and (ii) below:
(i) the date on which (A) all the Bank
Obligations shall have been paid to, or in the case of any Bank
Obligations which shall then not be due and payable, secured to the
satisfaction of, the Bank Secured Parties and (B) accrued and unpaid
Trustee's Fees shall have been paid in full; or
(ii) the date on which (A) the Borrower shall
have received written instructions from all of the Bank Secured Parties
instructing the Borrower to direct the Trustee to release the
Collateral, and (B) accrued and unpaid Trustee's Fees shall have been
paid in full.
(b) On the dates referred to in Section 10.1(a)(i) and 10.1(a)(ii)
above, the Collateral shall not be released unless and until no Grantor Default
would exist after, or as a result of, the release of the Collateral. For
purposes of this Section 10.1(b), the Trustee may conclusively presume that the
release of the Collateral complies with the requirement of this Section 10.1(b)
if the Trustee has received a written confirmation of the type described in
Section 10.2(a)(ii).
SECTION 10.2 Procedure for Release. The procedure for release of the
Collateral shall be as set forth in Section 10.2(a) of this Agreement.
(a) Discharge Notice.
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(i) Upon the occurrence of the events specified
in either Section 10.1(a)(i) or Section 10.1(a)(ii), the Borrower shall
deliver a Discharge Notice to the Trustee (with a copy thereof given
pursuant to Section 11.2 of this Agreement to each Secured Party). Upon
receipt by the Trustee of a Discharge Notice certifying that events set
forth in Section 10.1(a)(i) or Section 10.1(a)(ii) above have occurred,
the Trustee shall forthwith request the Administrative Agent to confirm
in writing that the events described in Section 10.1(a)(i)(A) or
Section 10.1(a)(ii)(A) of this Agreement have occurred.
(ii) Upon receipt of the written confirmation
from the Administrative Agent required by Section 10.2(a)(i), the
Trustee shall, to the extent requested by the Borrower, take the
actions set forth in Section 10.3 of this Agreement.
(b) Until the Trustee receives the written confirmation from the
Administrative Agent required by Section 10.2(a)(ii), the Collateral will not be
released unless the Trustee shall have received a final order of a court of
competent jurisdiction directing it to release the Collateral because the
conditions to the release of the Collateral, specified in Section 10.1(a)(i) or
Section, 10.1(a)(ii) of this Agreement, have been satisfied.
SECTION 10.3 Effective Time of Release.
(a) In the event that the provisions of Section 10.2(a) of this
Agreement are applicable, the release of Collateral in connection with the
events specified in Section 10.1(a)(i) or Section 10.1(a)(ii) of this Agreement
shall be effective upon the receipt by the Trustee of the written confirmation
from the Administrative Agent required by Section 10.2(a)(i) or upon the
occurrence of the events set forth in Section 10.2(b) of this Agreement. The
Trustee shall promptly notify the Grantors and the Secured Parties, in the
manner specified in Section 11.2 of this Agreement, when the release of the
Collateral is effective.
(b) When the release of all of the Collateral is effective, all
right, title and interest of the Trustee in, to and under the Trust Estate shall
terminate and shall revert to the Grantors or their respective successors and
assigns, and the estate right, title and interest of the Trustee therein shall
thereupon cease, terminate and become void except with respect to those
provisions of this Agreement that expressly survive. In such case, each Grantor
at its sole cost and expense shall deliver to the Trustee one or more
instruments of discharge, satisfaction and release in form reasonably
satisfactory to the Trustee, and, upon the written request of a Grantor or its
successors or assigns, and at the cost and expense of such Grantor or its
successors or assigns, the Trustee shall execute a satisfaction of the
Collateral Documents and such instruments as are necessary or desirable to
terminate and remove of record any documents constituting public notice of the
Collateral Documents and the Liens and assignments granted thereunder and shall
assign and transfer, or cause to be assigned and transferred, and shall deliver
or cause to be delivered to the Grantors, all property, including all moneys,
instruments and securities of the Grantors, then held by the Trustee. The
cancellation and satisfaction of the Collateral Documents shall be without
prejudice to the rights of the Trustee or any successor Trustee to charge and be
reimbursed for any expenditures which it may thereafter incur in connection
therewith.
39
SECTION 10.4 Release of Certain Collateral. To the extent that (i) the
Required Banks, at the request of the Borrower, direct the release of specified
portions of the Collateral pursuant to Section 3.3 of this Agreement, (ii) the
Administrative Agent, at the request of the Borrower, directs the Trustee in
writing to release specified portions of the Collateral which a Grantor is
permitted to sell pursuant to the Restated Credit Agreement (either pursuant to
the terms of the Restated Credit Agreement or as a result of a consent by the
Banks pursuant to the Restated Credit Agreement) or which constitutes the stock
of an Inactive Subsidiary, or (iii) the security interest in any Collateral
granted pursuant to any of the Collateral Documents is otherwise terminated or
released in accordance with the terms thereof upon the sale, transfer or other
disposition of any part of the Collateral as permitted by such Collateral
Document, all right, title and interest of the Trustee in, to and under such
Collateral and the security interest of the Trustee therein shall terminate and
shall revert to such Grantor or its successors and assigns, and the estate,
right, title and interest of the Trustee therein shall thereupon cease,
terminate and become void. Any Grantor's request for any such release shall be
accompanied by a written certification by such Grantor and the Borrower, in form
reasonably satisfactory to the Trustee, that, as of the date of such release, no
Actionable Default has occurred and is continuing and to the extent requested by
the Required Banks or the Administrative Agent if they are being requested to
authorize the release of Collateral pursuant to this Section 10.4 and Section
3.3, or by the Trustee, a Release Certificate. The Required Banks, the
Administrative Agent and the Trustee shall be justified in not taking any action
requested by the Borrower under this Section 10.4 in the absence of such
certifications. Following such request, instructions or other termination or
release, the Trustee shall, upon the written request of the Administrative Agent
or its successors or assigns, and at the Grantors, sole cost and expense,
execute such instruments and take such other actions as are necessary or
desirable to terminate any such security interest and otherwise effectuate the
release of the specified portions of the Collateral from the Lien of such
security interest. Such termination and release shall be without prejudice to
the rights of the Trustee or any successor trustee to charge and be reimbursed
for any expenditures which it may thereafter incur in connection therewith.
SECTION 11
MISCELLANEOUS
SECTION 11.1 Amendments, Supplements and Waivers.
(a) Subject to Sections 11.1(b) and 11.1(c), with the prior
written consent of the Required Secured Parties, the Trustee and the Grantors
may, from time to time, enter into written agreements supplemental hereto for
the purpose of adding to or waiving any provisions of any of the Collateral
Documents or amending the definition of any capitalized term used herein or
therein, as such capitalized term is used herein or therein, or changing in any
manner the rights of the Trustee, the Secured Parties or the Grantor hereunder
or thereunder; provided, however, that no such supplemental agreement shall:
(i) amend, modify or waive any provision of this
Section 11.1 without the written consent of each Bank Secured Party;
40
(ii) amend or modify the definition of "Required Banks"
without the written consent of each Bank or the definition of "Required
Secured Parties" without the written consent of each Secured Party;
(iii) amend, modify or waive any provision of this Section
11.1(a)(iii), Section 7.4 of this Agreement or the definition of the
term "Secured Debt" without the written consent of any Secured Party
whose rights would be adversely affected thereby; provided, that this
clause (iii) shall not apply to any such amendment or modification
which only adds additional obligations of the Grantors to the
definition of Secured Debt; or
(iv) amend, modify or waive any provision (A) of Section
2.3 requiring the Additional Collateral Documents and the Supporting
Documents to be in form and substance satisfactory to the Trustee or
(B) of any Collateral Document so as to adversely affect any of the
Trustee's rights, immunities or indemnities hereunder or thereunder or
enlarge its duties hereunder or thereunder, without the prior written
consent of the Trustee.
Any such supplemental agreement shall be binding upon the Grantors, the Secured
Parties and the Trustee and their respective successors and assigns. The Trustee
shall not enter into any such supplemental agreement unless it shall have
received a certificate signed by an Authorized Officer of the Borrower to the
effect that such supplemental agreement will not result in a breach of any
provision or covenant contained in the Restated Credit Agreement. Prior to
executing any amendment or waiver pursuant to the terms of this Section 11.1(a),
the Trustee shall be entitled to receive an opinion of counsel to the effect
that the execution of such document is authorized hereunder.
(b) Without the consent of the Required Banks or any Secured
Party, the Grantors and the Trustee, at any time and from time to time, may
enter into additional Collateral Documents or one or more agreements
supplemental hereto or to any other Collateral Document, in form satisfactory to
the Trustee:
(i) to add to the covenants of the Grantors for
the benefit of the Secured Parties;
(ii) to mortgage, pledge or grant a security
interest in favor of the Trustee, for itself hereunder and for the
ratable benefit of the Secured Parties, as additional security for the
Secured Debt pursuant to any Collateral Document; or
(iii) to cure any ambiguity, or to correct or
supplement any provision herein or in any other Collateral Document
which may be defective or inconsistent with any other provision herein
or therein; provided, however, that any such action contemplated in
this clause (iii) shall not adversely affect the interests of the
Secured Parties in any manner whatsoever.
(c) Without the consent of the Required Banks or any Secured
Party, the Grantors and the Trustee may, at any time and from time to time add
the Additional Grantors or other Persons as Grantors to this Agreement or any of
the other Collateral Documents, and such additional
41
provisions hereto and thereto as may be necessary or appropriate to effect the
grant by such Additional Grantors and Persons of Liens on any assets of such
Additional Grantors or Persons as additional security for the Secured Debt.
(d) All such amendments, supplemental agreements, modifications
and waivers shall be in writing and executed by the parties required to consent
thereto. Any such amendment, supplemental agreement, modification or waiver
shall be effective only in the specific instance and for the specific purpose
for which made or given.
(e) Notwithstanding anything in this Agreement to the contrary, no
provisions of this Agreement and no other Collateral Documents may be modified,
amended, supplemented or waived if such modification, amendment, supplement or
waiver shall result in the release of any Collateral, except in accordance with
Section 3.3 and Section 10 of this Agreement as in effect of the date hereof.
SECTION 11.2 Notices. All notices, requests, demands and other
communications provided for or permitted hereunder shall be in writing
(including telex and telecopy communication), shall be sent by mail, telex,
telecopier or hand delivery and, except as otherwise provided in this Agreement,
the cost thereof shall be for the sole account of the Grantors and shall be
added to the Secured Debt:
(a) if to any Grantor, c/o the Borrower, at:
WestPoint Xxxxxxx Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Executive Vice President - Finance
and Chief Financial Officer
with copy to:
Law Department
West Point Xxxxxxx Inc.
000 Xxxx 00xx Xxxxxx
Post Xxxxxx Xxx 00
Xxxx Xxxxx, Xxxxxxx 00000
(b) if to the Trustee, at:
NationsBank, N.A.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX 1007-08-11
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: J. Xxxxxxx Xxxxxx
42
(c) if to any Bank Secured Party,
c/o the Administrative Agent at:
NationsBank, N.A.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX 1007-08-11
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: J. Xxxxxxx Xxxxxx
(d) if to any holder of the Xxxxxxx Debentures or the
Xxxxxxx Indenture Trustee at:
IBJ Xxxxxxxx Bank & Trust Company
One State Street
Corporate Trust Administration
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
All such notices, requests, demands and communications, shall, to be effective
hereunder, be in writing or by a telecommunications device capable of creating a
written record and shall be deemed to have been given or made when delivered by
hand or five (5) days after its deposit in the mail, first class or air postage
prepaid (except that any notice to the Grantors by mail that an Actionable
Default has occurred or given by the Borrower pursuant to Section 10.2 shall be
sent by registered or certified mail) or in the case of notice by such a
telecommunication device, when properly transmitted; provided, however, that any
notice, request, demand or other communication to the Trustee shall not be
effective until received.
SECTION 11.3 Headings. Section, subsection and other headings used in
this Agreement are for convenience only and shall not affect the construction of
this Agreement.
SECTION 11.4 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate 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.
SECTION 11.5 Dealings with the Borrower.
(a) Upon any application or demand by any Grantor to the Trustee
to take or permit any action under any of the provisions of any Collateral
Document, such Grantor shall furnish to the Trustee a certificate signed by an
Authorized Officer of the Borrower and such Grantor and, if requested by the
Trustee, an opinion of counsel to the Grantor stating that all conditions
precedent, if any, provided for in any Collateral Document relating to the
proposed action have been complied
43
with, except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of any
Collateral Document, relating to such particular application or demand no
additional certificate or opinion need be furnished.
(b) Any opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate of Authorized Officers of the Borrower and
any Grantor delivered to the Trustee.
SECTION 11.6 Claims Against the Trustee. Any claims or causes of action
which the Secured Parties or the Grantors shall have against the Trustee shall
survive the termination of this Agreement and the release of the Collateral
hereunder.
SECTION 11.7 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and shall inure to the
benefit of the Secured Parties and their respective successors and assigns, and
nothing herein or in any other Collateral Document is intended or shall be
construed to give any other Person any right, remedy or claim under, to or in
respect of any Collateral Document, the Collateral or the Trust Estate.
SECTION 11.8 Conflict with other Agreements. The parties agree that in
the event of any conflict between the provisions of this Agreement and the
provisions of any of the other Collateral Documents the provisions of this
Agreement shall control.
SECTION 11.9 Governing Law. THE PROVISIONS OF THIS AGREEMENT CREATING A
TRUST FOR THE BENEFIT OF THE SECURED PARTIES AND SETTING FORTH THE RIGHTS,
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE TRUSTEE HEREUNDER AND ALL OTHER
PROVISIONS HEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF THE
STATE OF NEW YORK, EXCEPT WITH RESPECT TO THE PERFECTION AND ENFORCEMENT OF
SECURITY INTERESTS AND LIENS IN OTHER JURISDICTIONS, WHICH SHALL BE GOVERNED BY
THE LAWS OF THOSE JURISDICTIONS.
SECTION 11.10 Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same instrument.
SECTION 11.11 Consent to Jurisdiction; Waiver of Jury Trial. Each
Grantor hereby irrevocably submits to the nonexclusive jurisdiction of any
United States Federal or New York State court sitting in New York City in any
action or proceeding arising out of or relating to this Agreement or any other
Collateral Document, and each Grantor hereby irrevocably agrees that all claims
in respect of such action or proceeding may be heard and determined in any such
United States Federal or New York State court and each Grantor irrevocably
waives any objection, including, without limitation, any objection to the laying
of venue or based on the grounds of forum non conveniens which it may now or
hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions. As a method of service, each Grantor also irrevocably
consents to the service of any and all process in any such actions or proceeding
brought in any court in or of the State of New York by the delivery of copies of
such process to such Grantor, at its address specified
44
in Section 11.2 or by certified mail direct to such address, such service to be
effective upon such delivery or 5 days after such mailing. EACH GRANTOR AND THE
TRUSTEE HEREBY WAIVES ALL RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER COLLATERAL DOCUMENT OR ANY MATTER
ARISING HEREUNDER OR THEREUNDER.
[signature pages follow]
45
IN WITNESS OF, the parties hereto have executed this Agreement or
caused this Agreement to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
WESTPOINT XXXXXXX INC.
WESTPOINT XXXXXXX STORES, INC.
X.X. XXXXXXX & CO., INC.
WEST POINT-PEPPERELL ENTERPRISES,
INC.
X.X. XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxxx, Executive Vice
President - Finance and Chief Financial
Officer of WestPoint Xxxxxxx Inc.; Vice
President and Treasurer of WestPoint Xxxxxxx
Stores, Inc. and X.X. Xxxxxxx & Co., Inc.,
and Treasurer of West Point-Pepperell
Enterprises, Inc. and X.X. Xxxxxxx
Enterprises, Inc.
ALAMAC HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Title: Vice President & Assistant Treasurer
ALAMAC SUB HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Title: Vice President & Assistant Treasurer
[signatures continued]
46
NATIONSBANK N. A., in its capacity as Trustee
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Its: Vice President
IBJ XXXXXXXX BANK & TRUST COMPANY,
solely in its capacity as Xxxxxxx
Indenture Trustee and on behalf of the
holders of the Xxxxxxx Debentures
By: /s/ Xxxx Xxxxx
-----------------------------------------
Title: Assistant Vice President
NATIONSBANK, N.A., in its capacity as a Bank
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Title: Vice President
[signatures continued]
47
SCOTIABANC INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------------
Title: Senior Relationship Manager
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------------------
Title: Vice President
SOCIETE GENERALE
By: /s/ Xxxxx Xxxxx
---------------------------------------------------
Title: Vice President Southwest Operations Manager
ABN AMRO BANK, N.V., Atlanta Agency
By: /s/ C. Xxxx Xxxxx, Xx. /s/ Xxxxx X. Xxxxx
---------------------------------------------------
Title: Vice President Vice President
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxx Xxxx /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------------
Title: Senior Vice President Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxx
---------------------------------------------------
Title: Senior Vice President
[signatures continued]
48
FLEET BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Title: Senior Vice President
AMSOUTH BANK
By: /s/ Xxxx Xxxx
------------------------------------------------
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A.
"Rabobank Nederland" New York Branch
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Title: Senior Vice President
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------------
Title: Vice President
