GENERAL SECURITY AGREEMENT
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
TO:
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BANK OF AMERICA, N.A., | |
on its own behalf as Lender (acting through its Canada branch) and as
Collateral Agent, for itself and on behalf of the Secured Parties (as such
term is defined in the Credit Agreement, hereinafter defined) 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 |
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(hereinafter the “Collateral Agent”) | ||
GRANTED BY:
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WARNACO OF CANADA COMPANY | |
Having its registered office at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxxxx, Xxxxxx, X0X 0X0 and its principal place of business at 00000 Xxxxx Xxxxxx Xxxx., Baie d’Urfé, Québec, Canada, H9X 4B6 | ||
(hereinafter the “Debtor”) |
(a) | Terms used herein and defined in the Personal Property Security Act (Ontario)
or similar legislation of any other Canadian jurisdiction, the laws of which are
required by such legislation to be applied in connection with the issue, perfection,
enforcement, opposability, validity or effect of security interests (collectively the
“PPSA”) shall have the same meanings as in the PPSA unless the context otherwise
requires; |
(b) | Terms used herein and defined in the Securities Transfer Act (Ontario) (the
“STA”) shall have the same meanings as in the STA unless the context otherwise
requires; |
(c) | Capitalized terms not otherwise defined herein shall have the same meanings as
ascribed to them in the Credit Agreement, unless the context otherwise requires; |
(d) | Any reference to “Collateral” shall, unless the context otherwise requires,
refer to “Collateral or any part thereof”; |
(e) | The term “security interest” and the grant of the “security interest” herein
provided for shall include, without limitation, a fixed mortgage, hypothecation,
pledge, charge and assignment of the Collateral in favour of the Collateral Agent (for
itself and on behalf of the Secured Parties); |
(f) | “Additional Pledged Collateral” means any Pledged Collateral acquired by the
Debtor after the date hereof and in which a security interest is granted pursuant to
Section 1 (Grant of Security Interest), including, to the extent a security interest is
granted therein pursuant to Section 1 (Grant of Security Interest), (i) all Stock and
Stock Equivalents of any Person that are acquired by the Debtor after the date hereof,
together with all certificates, instruments or other documents representing any of the
foregoing and all Security Entitlements of the Debtor in respect of any of the
foregoing, (ii) all additional Indebtedness from time to time owed to the Debtor by any
obligor on the Pledged Debt Instruments and the Instruments evidencing such
Indebtedness and (iii) all interest, cash, Instruments and other property or Proceeds
from time to time received, receivable or otherwise distributed in respect of or in
exchange for any of the foregoing. “Additional Pledged Collateral” may be Intangibles
(including Intellectual Property), Instruments or Investment Property; |
(g) | “Blocked Account” means a deposit account maintained by the Debtor with a
Blocked Account Bank which account is the subject of an effective Blocked Account
Letter, and includes all monies on deposit therein and all certificates and
instruments, if any, representing or evidencing such Blocked Account; |
(h) | “Blocked Account Bank” means a financial institution approved (such approval
not to be unreasonably withheld) by the Administrative Agent and with respect to which
the Debtor has delivered to the Collateral Agent an executed Blocked Account Letter
(hereinafter defined); |
(i) | “Blocked Account Letter” means a letter agreement in a form acceptable to the
Collateral Agent, executed by the Debtor and the Collateral Agent and acknowledged and
agreed to by the relevant Blocked Account Bank; |
(j) | “Cash Collateral Account” means any deposit account or Securities Account that
is (a) established by the Collateral Agent from time to time in its sole discretion to
receive cash and Cash Equivalents (or purchase cash or Cash Equivalents with funds
received) from the Debtor or any other Loan Party or their Subsidiaries or Affiliates
or Persons acting on their behalf pursuant to the Loan Documents, (b) with such
depositaries and securities intermediaries as the Collateral Agent may determine in its
sole discretion, (c) in the name of the Collateral Agent (although such account may
also have words referring to the Debtor and the account’s purpose), (d) under the
control of the Collateral Agent and (e) in the case of a Securities Account, with
respect to which the Collateral Agent shall be the Entitlement Holder and the only
Person authorized to give Entitlement Orders with respect thereto, except as otherwise
provided in Section 3.9 hereof. Notwithstanding the foregoing, the Special Cash
Collateral Account shall not constitute a Cash Collateral Account; |
(k) | “CCQ” means the Civil Code of Quebec; |
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(l) | “Certificated Security” has the meaning given to such term in the PPSA; |
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(m) | “CIPO” means the Canadian Intellectual Property Office; |
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(n) | “Collateral” has the meaning specified in Section 1.1 hereof; |
(o) | “Collateral Agent” shall include, in addition to the Collateral Agent referred
to in the preamble of the Credit Agreement, any successors and assigns to the
Collateral Agent appointed pursuant to the Credit Agreement and means the “Collateral
Agent” in its capacity as collateral agent for the benefit of the Secured Parties with
respect to the Secured Obligations; |
(p) | “Control Account” means a securities account maintained by the Debtor with the
relevant approved Securities Intermediary which account is the subject of an effective
Control Account Agreement, and includes all monies and other assets on deposit or
otherwise held therein; |
(q) | “Control Account Agreement” means a letter agreement in a form acceptable to
the Collateral Agent, executed by the Debtor, the Collateral Agent and the relevant
approved Securities Intermediary; |
(r) | “Copyright License” means any agreement, whether written or oral, providing for
the grant by or to the Debtor of any right under any Copyright, including the grant of
any right to use, copy, publicly perform, display, create derivative works of,
manufacture, distribute, exploit or sell materials derived from any Copyright; |
(s) | “Copyrights” means (a) all copyrights arising under the laws of Canada, any
other country or any political subdivision thereof, whether registered or unregistered
and whether published or unpublished, all registrations and recordings thereof and all
applications for registration or recording in connection therewith, including all
registrations, recordings and applications for registration or recording with CIPO or
in any foreign counterparts thereof, and (b) the right to obtain all renewals,
reversions and extensions thereof; |
(t) | “Credit Agreement” shall mean that certain Credit Agreement dated the date
hereof among, inter alia, the Debtor, as borrower, the financial institutions, together
with their respective successors and assigns, listed on the signature pages thereof
from time to time, as Lenders, and the Collateral Agent, as the same may be amended,
supplemented, revised, restated or replaced from time to time; |
(u) | “Discharge of Lender Claims” means the payment in full in cash of the principal
of, interest and premium, if any, on all Secured Obligations and, with respect to
Hedging Obligations, Hedging Obligations or letters of credit outstanding thereunder,
delivery of cash collateral or backstop letters of credit in respect thereof in
compliance with the terms hereof, of the Credit Agreement, in each case after or
concurrently with termination of all Commitments, and payment in full in cash of any
other Secured Obligations that are due and payable at or prior to the time such
principal and interest are paid; |
(v) | “Entitlement Holder” has the meaning given to such term in the PPSA; |
(w) | “Entitlement Order” has the meaning given to such term in the PPSA; |
(x) | “Excluded Property” means, collectively, (i) any permit, lease, license,
contract, instrument or other agreement held by the Debtor that validly prohibits the
creation by the Debtor of a Lien thereon, or any permit, lease, license, contract,
instrument or other agreement held by the Debtor to the extent that any Requirement of
Law applicable thereto prohibits the creation of a Lien thereon,
but only, in each case, to the extent, and for so long as, such prohibition is not
removed, terminated or rendered unenforceable or otherwise deemed ineffective by the
PPSA or any other Requirement of Law; and (ii) any Equipment owned by the Debtor
that is charged by a “purchase-money security interest” (as defined in the PPSA) or
subject to a Capital Lease if the contract or other agreement in which such Lien is
granted (or in the documentation providing for such Capital Lease) prohibits or
requires the consent of any Person other than the Debtor as a condition to the
creation of any other Lien on such Equipment; provided, however, “Excluded Property”
shall not include any Proceeds, substitutions or replacements of Excluded Property
(unless such Proceeds, substitutions or replacements would constitute Excluded
Property); |
(y) | “Financial Assets” has the meaning given to such term in the PPSA; |
(z) | “Hedging Obligations” means all obligations of any Person under any Hedging
Contract; |
(aa) | “Instrument” has the meaning given to such term in the PPSA; |
(bb) | “Intellectual Property” means, collectively, (a) all right, title and interest
of the Debtor in intellectual property, whether arising under Canadian, multinational
or foreign laws or otherwise, including Copyrights, Copyright Licenses, Patents, Patent
Licenses, Trademarks, Trademark Licenses, trade secrets, Internet domain names,
Websites, advertising rights, rights in designs, including registrations thereof, and
rights in data, and (b) all rights to income, royalties, proceeds and damages now or
hereafter due and/or payable under and with respect thereto, including all rights to
xxx and recover at law or in equity for any past, present and future infringement,
misappropriation, dilution, violation or other impairment thereof; |
(cc) | “Investment Property” has the meaning given to such term in the PPSA; |
(dd) | “LLC” means each limited liability company in which the Debtor has an equity
interest, including those set forth on Schedule 2; |
(ee) | “LLC Agreement” means each operating agreement with respect to a LLC, as each
agreement has heretofore been, and may hereafter be, amended, restated, supplemented or
otherwise modified from time to time; |
(ff) | “Material Intellectual Property” means Intellectual Property owned by or
licensed to the Debtor and material to Debtor’s business; |
(gg) | “Partnership” means each partnership in which the Debtor has an equity
interest, including those set forth on Schedule 2; |
(hh) | “Partnership Agreement” means each partnership agreement governing a
Partnership, as each such agreement has heretofore been, and may hereafter be, amended,
restated, supplemented or otherwise modified; |
(ii) | “Patent License” means all agreements, whether written or oral, providing for
the grant by or to the Debtor of any right to manufacture, have manufactured, use,
import, lease, sell or offer for sale any product, design or process covered in whole
or in part by a Patent; |
(jj) | “Patents” means (a) all patents of Canada or any other country or patent rights
arising under multinational laws, (b) all applications for patents of Canada or any
other country or patent rights arising under multinational laws and (c) all rights to
obtain any reissues, extensions, divisions, continuations and continuations-in-part of
the foregoing; |
(kk) | “Pledged Certificated Stock” means all Certificated Securities and any other
Stock and Stock Equivalent of a Person evidenced by a certificate, Instrument or other
equivalent document, in each case owned by the Debtor, including all Stock listed on
Schedule 2; |
(ll) | “Pledged Collateral” means, collectively, the Pledged Stock, Pledged Debt
Instruments, any other Investment Property of the Debtor (other than Pledged Stock,
Pledged Debt Instruments and other Investment Property whose value, in the aggregate,
does not exceed $1,000,000), all chattel paper, certificates or other Instruments
representing any of the foregoing and all Security Entitlements of the Debtor in
respect of any of the foregoing. Pledged Collateral may be Intangibles, Instruments or
Investment Property; |
(mm) | “Pledged Debt Instrument” means all right, title and interest of the Debtor in
Instruments evidencing any Indebtedness owed to the Debtor, including all Indebtedness
described on Schedule 2, issued by the obligors named therein; |
(nn) | “Pledged Stock” means all Pledged Certificated Stock and all Pledged
Uncertificated Stock; |
(oo) | “Pledged Uncertificated Stock” means any Stock or Stock Equivalent of any
Person that is not a Pledged Certificated Stock, including all right, title and
interest of the Debtor as a limited or general partner in any Partnership or as a
member of any LLC and all right, title and interest of the Debtor in, to and under any
Partnership Agreement or LLC Agreement to which it is a party; |
(pp) | “Receiver” shall have the meaning provided to such term in Section 6.4 hereof; |
(qq) | “Registerable Intellectual Property” means any Intellectual Property in respect
of which ownership, title, security interests, hypothecs, charges or encumbrances are
capable of registration, recording or notation with any applicable authority pursuant
to applicable law; |
(rr) | “Restricted Account” means a deposit account maintained by the Debtor with a
Restricted Account Bank which account is the subject of an effective Restricted Account
Letter, and includes all monies on deposit therein and all certificates and
instruments, if any, representing or evidencing such Restricted Account; |
(ss) | “Restricted Account Bank” means a financial institution selected or approved
(such approval not to be unreasonably withheld) by the Administrative Agent and with
respect to which the Debtor has delivered an executed Restricted Account Letter; |
(tt) | “Restricted Account Letter” means a letter agreement in a form acceptable to
the Administrative Agent, executed by the Debtor; |
(uu) | “Securities Intermediaries” has the meaning given to such term in the PPSA; |
(vv) | “Securities Account” has the meaning given to such term in the PPSA; |
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(ww) | “Security Entitlement” has the meaning given to such term in the PPSA; |
(xx) | “Security Interest” means, collectively, each security interest, mortgage,
charge, assignment or transfer in or of Collateral granted or created by the Debtor
under this Agreement; |
(yy) | “Third Party Intellectual Property Rights” means any right, title or interest
of any Person under patent, copyright, trademark or trade secret law or any other
statutory provision or common law doctrine relating to intellectual property or
proprietary rights; |
(zz) | “Trademark License” means any agreement, whether written or oral, providing for
the grant by or to the Debtor of any right under any Trademark.; |
(aaa) | “Trademarks” means (a) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, trade dress, service
marks, logos and other source or business identifiers, and, in each case, all goodwill
associated therewith, whether now existing or hereafter adopted or acquired, all
registrations and recordings thereof and all applications for registration or recording
in connection therewith, in each case whether in CIPO or in any similar office or
agency of Canada, any Province or Territory thereof or any other country or any
political subdivision thereof and all common-law rights related thereto, and (b) the
right to obtain all renewals thereof; and |
(bbb) | “UCC” means the Uniform Commercial Code as from time to time in effect in the
State of New York. |
(a) | the Debtor shall remain liable under the contracts and agreements included in
the Collateral to the extent set forth therein to perform all its duties and
obligations thereunder to the same extent as if this Agreement had not been executed; |
(b) | the exercise by the Collateral Agent of any of the rights or remedies hereunder
shall not release the Debtor from any of its duties or obligations under the contracts
and agreements included in the Collateral; and |
(c) | the Collateral Agent shall not have any obligation or liability under the
contracts and agreements included in the Collateral by reason of this Agreement, nor
shall the Collateral Agent be obligated to perform any of the obligations or duties of
the Debtor thereunder or to take any action to collect or enforce any claim for payment
assigned hereunder. |
(a) | The Pledged Stock that constitutes Pledged Collateral pledged hereunder by the
Debtor is listed on Schedule 2 and constitutes that percentage of the issued and
outstanding equity of all classes of each issuer thereof as set forth on Schedule 2. |
(b) | All of the Pledged Stock (other than Pledged Stock in limited liability
companies and partnerships) that constitutes Pledged Collateral has been duly and
validly issued and are fully paid and nonassessable. |
(c) | All Pledged Collateral and, if applicable, any Additional Pledged Collateral,
consisting of Certificated Securities or Instruments has been delivered to the
Collateral Agent in accordance with Section 3.5(a) (Pledged Collateral) hereof, and
Section 7.11 of the Credit Agreement and such other pledge agreement or other
Collateral Documents entered into by the Debtor in favour of the Collateral Agent. |
(d) | Subject to Section 3.5(a), all Pledged Collateral held by a Securities
Intermediary in a Securities Account is subject to a Control Account Agreement. |
(e) | Other than Pledged Stock constituting Intangibles, there is no Pledged
Collateral other than (i) that represented by Certificated Securities or
(ii) Instruments in the possession of the Collateral Agent or that consisting of
Financial Assets held in a Securities Account that is subject to a Control Account
Agreement. |
(f) | The Constituent Documents of any Person governing any Pledged Stock do not
prohibit (i) the Collateral Agent, upon the occurrence and during the continuance of an
Event of Default, from exercising all of the rights of the Debtor granting the security
interest therein, and (ii) a transferee or assignee of Stock of such Person from
becoming a member, partner or, as the case may be, other holder of such Pledged Stock
to the same extent as the Debtor entitled to participate in the management of such
Person and, pursuant to the Constituent Documents of any Person governing any Pledged
Stock, upon the transfer of the entire interest of the Debtor, the Debtor shall cease
to be a member, partner or, as the case may be, other holder of such Pledged Stock. |
(a) | Schedule 5 (i) sets forth a true and complete list of all Intellectual Property
of the Debtor on the date hereof (other than licenses to commercial off-the-shelf
software), separately identifying that owned by the Debtor and that licensed by or to
such Debtor and (ii) sets forth a true and complete list of all Material Intellectual
Property owned by or licensed to the Debtor on the date hereof (other than licenses to
commercial off-the-shelf software), separately identifying that owned by the Debtor and
that licensed by or to the Debtor. The Material Intellectual Property set forth on
Schedule 5 constitutes all of the material intellectual property rights necessary for
the Debtor to conduct its business as currently and as proposed to be conducted. |
(b) | On the date hereof, all Material Intellectual Property owned by the Debtor is
valid, in full force and effect, subsisting, unexpired and enforceable, has not been
adjudged invalid and has not been abandoned. To the knowledge of the Debtor, the
business of the Debtor, and the use of the Material Intellectual Property in connection
therewith, does not infringe, misappropriate, dilute or violate any Third Party
Intellectual Property Rights. The Debtor is not party to or the subject of any pending
or, to the Debtor’s knowledge, threatened claim of infringement, misappropriation,
dilution or violation of any Third Party Intellectual Property Rights, and there are no
facts or circumstances that the Debtor reasonably believes are likely to form the basis
for any such claim, and the Debtor has not received written notice of any such claim,
or a written offer of a license to any Third Party Intellectual Property Rights, or any
written notice regarding the existence of any Third Party Intellectual Property Rights
that would be likely to have a Material Adverse Effect on the Debtor or otherwise would
impair any Material Intellectual Property. |
(c) | Except as set forth in Schedule 5(c), on the date hereof, none of the Material
Intellectual Property owned by the Debtor is the subject of any licensing or franchise
agreement pursuant to which the Debtor is the licensor or franchisor. |
(d) | No holding, decision or judgment has been rendered by any Governmental
Authority challenging the Debtor’s rights in the Material Intellectual Property or that
would limit or otherwise impair the ownership, use, validity or enforceability of any
Material Intellectual Property. |
(e) | No action or proceeding challenging the Debtor’s rights in the Intellectual
Property or the ownership, use, validity or enforceability of any Material Intellectual
Property owned by the Debtor is on the date hereof pending or, to the knowledge of the
Debtor, threatened. There are no claims, judgments or settlements to be paid by the
Debtor relating to the Material Intellectual Property. To the Debtor’s knowledge, no
Person has been or is infringing, misappropriating, diluting or violating the Material
Intellectual Property owned by the Debtor. |
(f) | The Debtor is not in material breach of any Copyright License, Patent License
or Trademark License nor in breach of any Material License. The consummation of the
transactions contemplated by this Agreement shall not impair any of the Debtor’s right
in, cause a breach of, or impair the validity or enforceability of, any Material
Intellectual Property. |
(a) | The Debtor shall maintain the security interests created by this Agreement as
perfected security interests having at least the priority described in Section 2.2
(Perfection and Priority) and shall defend such security interests and such priority
against the claims and demands of all Persons. |
(b) | The Debtor shall furnish to the Collateral Agent from time to time statements
and schedules further identifying and describing the Collateral and such other reports
in connection with the Collateral as the Collateral Agent may reasonably request in
writing, all in detail and in form and substance reasonably satisfactory to the
Collateral Agent. |
(c) | At any time and from time to time, upon the written request of the Collateral
Agent, and at the sole expense of the Debtor, the Debtor shall promptly and duly
execute and deliver to the Collateral Agent, and have recorded, such further
instruments and documents and take such further action as the Collateral Agent may
reasonably request (or be directed to request by the Administrative Agent at the
Administrative Agent’s reasonable request) for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and powers herein
granted, including the filing of any financing or continuation statement under the
PPSA (or other similar laws) in effect in any jurisdiction with respect to the
security interests created hereby and the execution and delivery of Blocked Account
Letters or Restricted Account Letters and Control Account Agreements. |
(a) | Except upon 15 or more days’ prior written notice to the Collateral Agent and
delivery to the Collateral Agent of (i) all additional financing statements and other
documents reasonably requested by the Collateral Agent to maintain the validity,
perfection and priority of the security interests provided for herein and (ii) if
applicable, a written supplement to Schedule 4 showing (A) any additional locations at
which Inventory or Equipment shall be kept or (B) any changes in any location where
Inventory or Equipment shall be kept that would require the Collateral Agent to take
any action to maintain perfected security interests in such Collateral, the Debtor
shall not do any of the following: |
(i) | permit any Inventory or Equipment to be kept at a location
other than those listed on Schedule 4, except for Inventory or Equipment in
transit; |
(ii) | change its jurisdiction of organization from that referred to
in Section 2.3 (Jurisdiction of Organization; Chief Executive Office); or |
(iii) | change its legal name, or organizational identification
number, if any, or corporation, unlimited liability company, limited liability
company or other organizational structure to such an extent that any financing
statement filed in connection with this Agreement would become misleading. |
(b) | The Debtor shall keep and maintain at its own cost and expense satisfactory and
complete records of the Collateral, including a record of all payments received and all
credits granted with respect to the Collateral and all other dealings with the
Collateral. |
(a) | The Debtor shall (i) deliver to the Collateral Agent for the benefit of the
Secured Parties, all certificates and Instruments representing or evidencing any
Pledged Collateral (including Additional Pledged Collateral), whether now existing or
hereafter acquired, in suitable form for transfer by delivery or, as applicable,
accompanied by such Debtor’s endorsement, where necessary, or duly executed
instruments of transfer or assignment in blank, all in form and substance reasonably
satisfactory to the Collateral Agent, together, in respect of any Additional Pledged
Collateral, with a pledge amendment, duly executed by the Debtor, in a form
reasonably acceptable to the Collateral Agent, an acknowledgment, or such other
documentation acceptable to the Collateral Agent and (ii) maintain all other Pledged
Collateral constituting Investment Property in a Securities Account subject to a
Control Account Agreement. The Collateral Agent shall have the right, following an
Event of Default and without notice to the Debtor, to transfer to or to register in
its name or in the name of its nominees any Pledged Collateral. The Collateral
Agent shall have the right at any time to exchange any certificate or instrument
representing or evidencing any Pledged Collateral for certificates or instruments of
smaller or larger denominations. |
(b) | Except as provided in Section 6 (Remedies on Default), the Debtor shall be
entitled to receive all cash dividends paid in respect of the Pledged Collateral (other
than liquidating or distributing dividends). Any sums paid upon or in respect of any
Pledged Collateral upon the liquidation or dissolution of any issuer of any Pledged
Collateral, any distribution of capital made on or in respect of any Pledged Collateral
or any property distributed upon or with respect to any Pledged Collateral pursuant to
the recapitalization or reclassification of the capital of any issuer of Pledged
Collateral or pursuant to the reorganization thereof (except, in each case, to the
extent resulting in cash being distributed to the Debtor) shall, unless otherwise
subject to a perfected security interest (with the priorities contemplated herein) in
favour of the Collateral Agent, be delivered to the Collateral Agent to be held by it
hereunder as additional collateral security for the Secured Obligations. If any sum of
money or property so paid or distributed in respect of any Pledged Collateral shall be
received by the Debtor, the Debtor shall, until such money or property is paid or
delivered to the Collateral Agent, hold such money or property in trust for the
Collateral Agent, segregated from other funds of the Debtor, as additional security for
the Secured Obligations. |
(c) | Except as provided in Section 6 (Remedies on Default), the Debtor shall be
entitled to exercise all voting, consent and corporate, partnership, unlimited
liability company, limited liability company and similar rights with respect to the
Pledged Collateral; provided, however, that no vote shall be cast, consent given or
right exercised or other action taken by the Debtor that would impair the Collateral,
be inconsistent with or result in any violation of any provision of the Credit
Agreement, this Agreement or any other Loan Document or, without prior notice to the
Collateral Agent, enable or permit any issuer of Pledged Collateral to issue any Stock
or other equity Securities of any nature or to issue any other securities convertible
into or granting the right to purchase or exchange for any Stock or other equity
Securities of any nature of any issuer of Pledged Collateral. |
(d) | The Debtor shall not grant control (within the meaning of such term under the
STA) over any Investment Property to any Person other than the Collateral Agent. |
(e) | In the case the Debtor is an issuer of Pledged Collateral, the Debtor agrees to
be bound by the terms of this Agreement relating to the Pledged Collateral issued by it
and shall comply with such terms insofar as such terms are applicable to it. In the
case the Debtor is a holder of any Stock or Stock Equivalent in any Person that is an
issuer of Pledged Collateral, the Debtor consents to (i) the exercise of the rights
granted to the Collateral Agent hereunder (including those described in Section 6.10
(Pledged Collateral)), and to the transfer of such Pledged Stock to the Collateral
Agent or its nominee and to the substitution of the Collateral Agent or its nominee as
a holder of such Pledged Stock with all the rights, powers and duties of other holders
of Pledged Stock of the same class and, if the Debtor having pledged such Pledged Stock
hereunder had any right, power or duty at the time of such pledge or at the time of
such substitution beyond that of such other holders, with all such additional rights,
powers and duties. The Debtor agrees to execute and deliver to the Collateral Agent
such certificates, agreements and other documents as may be necessary to evidence,
formalize or otherwise give effect to the consents given in this clause (e). |
(f) | The Debtor shall not, and shall not permit any of its Subsidiaries (to the
extent the Stock of such Subsidiary constitutes Collateral), without the consent of the
Collateral Agent, agree to any amendment of any Constituent Document that in any way
adversely affects the perfection of the security interest of the Collateral Agent in
the Pledged Collateral pledged by the Debtor hereunder or any election to turn any
previously uncertificated Stock that is part of the Pledged Collateral into
certificated Stock. |
(a) | The Debtor (either itself or through licensees) shall (and shall cause all
licensees or sublicensees thereof to) (i) continue to use each Trademark that is
Material Intellectual Property in order to maintain such Trademark in full force and
effect with respect to each class of goods for which such Trademark is currently used,
free from any claim of abandonment for non-use, (ii) maintain as in the past the
quality of products and services offered under such Trademark, (iii) use such Trademark
with the appropriate notice of registration and all other notices and legends required
by applicable Requirements of Law, (iv) execute and file all documents necessary to
perfect a security interest pursuant to this Agreement in favour of the Collateral
Agent promptly upon adopting or using any xxxx that is
confusingly similar or a colorable imitation of such Trademark and (v) not do any
act or knowingly omit to do any act (and not permit or direct by express act or
omission any licensee or sublicensee thereof to do any act) whereby such Trademark
(or any goodwill associated therewith) may become destroyed, invalidated, impaired
or harmed in any way; provided, however, that (i) to (iii) and (v) above shall be
subject to the good faith exercise by the Debtor of its reasonable business judgment
consistent with past practices. |
(b) | The Debtor shall not (and shall not permit or direct by express act or omission
any licensee or sublicensee thereof to) do any act, or omit to do any act, whereby any
Patent that is Material Intellectual Property may become forfeited, abandoned or
dedicated to the public. |
(c) | The Debtor (i) shall not (and shall not permit or direct by express act or
omission any licensee or sublicensee thereof to) do any act or omit to do any act
whereby any portion of the Copyrights that is Material Intellectual Property may become
invalidated or otherwise impaired and (ii) shall not (and shall not permit or direct by
express act or omission any licensee or sublicensee thereof to) do any act whereby any
portion of the Copyrights that is Material Intellectual Property may fall into the
public domain. |
(d) | The Debtor shall not knowingly (and shall not permit or direct by express act
or omission any licensee or sublicensee thereof to) do any act, or knowingly omit to do
any act, whereby any trade secret that is Material Intellectual Property may become
publicly available or otherwise unprotectable. |
(e) | The Debtor shall not (and shall not permit or direct by express act or omission
any licensee or sublicensee thereof to) do any act that knowingly infringes,
misappropriates, dilutes or violates any Third Party Intellectual Property Rights. |
(f) | The Debtor shall promptly inform the Collateral Agent in writing of the
acquisition by the Debtor of any Registerable Intellectual Property, and the Debtor
shall execute and deliver, at its own expense, from time to time amendments to this
Agreement or additional security agreements or schedules as may be required by the
Collateral Agent in order that the Security Interest shall attach to such Registerable
Intellectual Property. |
(g) | The Debtor shall notify the Collateral Agent immediately if it knows, or has
reason to know, that any application for registration or recording, registration or
recording relating to any Material Intellectual Property may become forfeited,
abandoned or dedicated to the public, or of any adverse determination or development
(including the institution of, or any such determination or development in, any
proceeding in CIPO, the Federal Court of Canada or any other court or tribunal in any
other country) regarding Debtor’s ownership of, right to use, interest in, or the
validity or enforceability of, any Material Intellectual Property or Debtor’s right to
register the same or to own and maintain the same. |
(h) | As set forth below, whenever the Debtor, either by itself or through its
counsel or any agent or designee, shall file an application for the registration or
recording of
any Intellectual Property with CIPO or any similar office or agency within or
outside Canada or register any Internet domain name, the Debtor shall report such
filing to the Collateral Agent within five Business Days after the last day of the
fiscal quarter in which such filing occurs. Upon request of the Collateral Agent,
the Debtor shall execute and deliver, and have recorded, all agreements,
instruments, documents and papers as the Collateral Agent may request to evidence
the Collateral Agent’s security interest in any such Copyright, Patent, Trademark or
Internet domain name and the goodwill and intangibles of the Debtor relating thereto
or represented thereby. |
(i) | The Debtor shall take all reasonable actions that are (i) necessary (subject to
the good faith exercise by the Debtor of its reasonable business judgment consistent
with past practices) or (ii) requested by the Collateral Agent, including in any
proceeding before CIPO or any similar office or agency and any Internet domain name
registrar, to maintain and pursue each application for registration or recording (and
to obtain the relevant registration or recording) and to maintain each registration and
recording of any Copyright, Trademark, Patent or Internet domain name that is Material
Intellectual Property, including filing of applications for renewal, affidavits of use,
affidavits of incontestability and opposition and interference and cancellation
proceedings. |
(j) | In the event that any Material Intellectual Property is infringed,
misappropriated, diluted or violated by a third party, the Debtor shall notify the
Collateral Agent promptly after the Debtor learns thereof. The Debtor shall take
appropriate action in response to any infringement, misappropriation, dilution or
violation of the Material Intellectual Property, including promptly bringing suit for
infringement, misappropriation, dilution or violation and to recover all damages for
such infringement, misappropriation, dilution or violation, and shall take such other
actions may be appropriate under the circumstances to protect such Intellectual
Property; provided, however, that the foregoing shall be subject to the good faith
exercise by the Debtor of its reasonable business judgment consistent with past
practices. |
(k) | Unless otherwise agreed to by the Collateral Agent the Debtor shall execute and
deliver to the Collateral Agent for filing in (i) the United States Copyright Office or
any similar office or agency a short-form copyright security agreement in the form
attached hereto as Annex 1 for all Copyrights of the Debtor registered therein from
time to time, (ii) in the United States Patent and Trademark Office or any similar
office or agency a short-form patent security agreement in the form attached hereto as
Annex 2 for all Patents of the Debtor registered therein from time to time, (iii) the
United States Patent and Trademark Office or any similar office or agency and with the
appropriate department or division of all appropriate States of the United States a
short-form trademark security agreement in form attached hereto as Annex 3 for all
Trademarks of the Debtor registered therein from time to time and (iv) with the
appropriate Internet domain name registrar, a duly executed form of assignment of all
Internet domain names of the Debtor to the Collateral Agent (together with appropriate
supporting documentation as may be requested by the Collateral Agent) in form and
substance reasonably
acceptable to the Collateral Agent. In the case of clause (iv) above, the Debtor
hereby authorizes the Collateral Agent to file such assignment in the Debtor’s name
and to otherwise perform in the name of the Debtor all other necessary actions to
complete such assignment, and the Debtor agrees to perform all appropriate actions
deemed necessary by the Collateral Agent for the Collateral Agent to ensure such
Internet domain name is registered in the name of the Collateral Agent. |
(a) | On the Closing Date (or such later date as agreed by the Collateral Agent), the
Debtor shall cause to be delivered (i) to the Collateral Agent, a duly executed and
effective Blocked Account Letter for each existing deposit account identified as a
concentration account on Schedule 7 maintained by the Debtor and (ii) to each
Restricted Account Bank (with a copy to the Collateral Agent), a Restricted Account
Letter for each other deposit account (subject only to clause (b) below) duly executed
by the Debtor to each such deposit account. |
(b) | The Debtor shall (i) deposit in a Blocked Account or Restricted Account all
cash and all Proceeds received by the Debtor and (ii) not establish or maintain any
deposit account with any financial or other institution other than a Blocked Account
Bank, a Restricted Account Bank, the Collateral Agent or the Administrative Agent;
provided, however, that the Debtor may at any time maintain the following accounts not
subject to this Section 3.8(b)(i) deposit accounts or Securities Accounts (or their
foreign equivalents) located outside of Canada with cash or Cash Equivalents not in
excess of an aggregate amount of $3,000,000, (ii) deposit accounts or Securities
Accounts located in Canada with cash or Cash Equivalents not in excess of an aggregate
amount of $1,000,000 and (iii) payroll tax, employee deductions at source, withholding
tax, goods and services and sales tax, and other fiduciary accounts as required for
operations in the ordinary course of business. |
(c) | The Debtor shall instruct each account debtor or other Person obligated to make
a payment to the Debtor to make payment, or to continue to make payment, as the case
may be, to a lock-box linked to a Blocked Account or a Restricted Account, as the case
may be, and the Debtor shall deposit in a Blocked Account or a Restricted Account all
Proceeds received by the Debtor from any other Person immediately upon receipt. |
(d) | In the event (i) the Debtor or a Blocked Account Bank or Restricted Account
Bank shall, after the date hereof, terminate an agreement with respect to the
maintenance of a Blocked Account or Restricted Account, as the case may be, for any
reason, (ii) the Collateral Agent shall demand termination of a Blocked Account Letter
or a Restricted Account Letter as a result of the failure of a Blocked Account Bank or
Restricted Account Bank, as the case may be, to comply with the terms of the applicable
letter agreement or (iii) the Collateral Agent determines in its sole discretion that
the financial condition of a Blocked Account Bank or Restricted Account Bank has
materially deteriorated, then, in
each case, the Debtor shall notify all of its account debtors that were making
payments to such terminated Blocked Account Bank or Restricted Account Bank to make
all future payments to such other Blocked Account Bank or Restricted Account Bank,
as specified by the Collateral Agent. |
(e) | The Collateral Agent agrees that it shall not deliver to any Blocked Account
Bank a sweep activation notice under any Blocked Account Letter with such Blocked
Account Bank unless there has occurred and is continuing an Event of Default or
Available Credit has been less than 15% of the Aggregate Borrowing Limit for five or
more consecutive Business Days. |
(a) | The Collateral Agent may establish one or more Cash Collateral Accounts with
such depositaries and Securities Intermediaries as it in its sole discretion shall
determine. The Debtor agrees that each such Cash Collateral Account shall be under the
control of the Collateral Agent and that the Collateral Agent shall be the Entitlement
Holder with respect to each such Cash Collateral Account that is a Securities Account
and the only Person authorized to give Entitlement Orders with respect to each such
Securities Account. Without limiting the foregoing, funds on deposit in any Cash
Collateral Account may be invested in Permitted Cash Equivalents at the direction of
the Collateral Agent and, except during the continuance of an Event of Default (unless
otherwise agreed to by the Administrative Agent in its sole discretion), the Collateral
Agent agrees with the Debtor to issue Entitlement Orders for such investments in
Permitted Cash Equivalents as requested by the Debtor; provided, however, that the
Collateral Agent shall not have any responsibility for, or bear any risk of loss of,
any such requested investment or income thereon and the Collateral Agent shall have no
obligation to make or cause to be made any such investment absent a request by the
Borrower for a specific investment in Permitted Cash Equivalents. Neither any Warnaco
Entity nor any other Person claiming on behalf of or through any Warnaco Entity shall
have any right to demand payment of any funds held in any Cash Collateral Account at
any time prior to Discharge of Lender Claims, except (i) as provided in Section 2.9(f)
of the Credit Agreement and (ii) that the Debtor may request that the Collateral Agent
apply funds in any Cash Collateral Account directly to the immediate payment of the
Loans and if paid in full then to the cash collateralization of Letter of Credit
Obligations (and not to be delivered to any Warnaco Entity). The Collateral Agent
shall apply all funds on deposit in a Cash Collateral Account as provided in Section
2.9(f) of the Credit Agreement. |
(a) | In addition to, and not in substitution for, any similar requirement in the
Credit Agreement, if required by the Collateral Agent at any time during the
continuance of an Event of Default, any payment of Accounts Receivable or payment in
respect of Intangibles, when collected by the Debtor, shall be forthwith (and, in any
event, within two Business Days) deposited by the Debtor in the exact form received,
duly indorsed by the Debtor to the Collateral Agent, in a Blocked Account or a Cash
Collateral Account, subject to withdrawal by the Collateral Agent as provided in
Section 6.11 (Proceeds to be Turned Over To Collateral Agent). Until so turned over,
such payment shall be held by the Debtor in trust for the Collateral Agent, segregated
from other funds of the Debtor. Each such
deposit of Proceeds of Accounts Receivable and payments in respect of Intangibles
shall be accompanied by a report identifying in reasonable detail the nature and
source of the payments included in the deposit. |
(b) | At the Collateral Agent’s request, during the continuance of an Event of
Default, the Debtor shall deliver to the Collateral Agent all original and other
documents evidencing, and relating to, the agreements and transactions that gave rise
to the Accounts Receivable or payments in respect of Intangibles, including all
original orders, invoices and shipping receipts. |
(c) | Subject to the terms of the Credit Agreement, the Collateral Agent may, without
notice, at any time during the continuance of an Event of Default, limit or terminate
the authority of the Debtor to collect its Accounts Receivable or amounts due under
Intangibles or any thereof. |
(d) | The Collateral Agent in its own name or in the name of others may at any time
during the continuance of an Event of Default communicate with account debtors to
verify with them to the Collateral Agent’s satisfaction the existence, amount and terms
of any Account or amounts due under any Intangible. |
(e) | Upon the request of the Collateral Agent at any time during the continuance of
an Event of Default, the Debtor shall notify account debtors that it has granted to the
Collateral Agent a lien on and security interest in, all of its right, title and
interest in, to and under the Accounts Receivable or Intangibles that have been
collaterally assigned to the Collateral Agent and that payments in respect thereof
shall be made directly to the Collateral Agent. In addition, the Collateral Agent may
at any time during the continuance of an Event of Default, to the extent permitted by
applicable law, enforce the Debtor’s rights against such account debtors and obligors
of Intangibles. |
(f) | Anything herein to the contrary notwithstanding, the Debtor shall remain liable
under each of the Accounts Receivable and payments in respect of Intangibles to observe
and perform all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise thereto.
Neither the Collateral Agent nor any other Secured Party shall have any obligation or
liability under any agreement giving rise to an Account or a payment in respect of an
Intangible by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any other Secured Party of any payment relating thereto, nor shall
the Collateral Agent nor any other Secured Party be obligated in any manner to perform
any obligation of the Debtor under or pursuant to any agreement giving rise to an
Account or a payment in respect of an Intangible, to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party thereunder, to present or file any claim,
to take any action to enforce any performance or to collect the payment of any amounts
that may have been assigned to it or to which it may be entitled at any time or times. |
(a) | During the continuance of an Event of Default, upon notice by the Collateral
Agent to the Debtor, (i) the Collateral Agent shall have the right to receive any
Proceeds of the Pledged Collateral and make application thereof to the Secured
Obligations in the order set forth in the Credit Agreement and (ii) the Collateral
Agent or its nominee may exercise (A) any voting, consent, corporate and other right
pertaining to the Pledged Collateral at any meeting of shareholders, partners or
members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or
otherwise and (B) any right of conversion, exchange and subscription and any other
right, privilege or option pertaining to the Pledged Collateral as if it were the
absolute owner thereof (including the right to exchange at its discretion any of the
Pledged Collateral upon the merger, consolidation, reorganization, recapitalization or
other fundamental change in the corporate structure of any issuer of Pledged Stock and
the right to deposit and deliver any Pledged Collateral with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and conditions as
the Collateral Agent may determine), all without liability except to account for
property actually received by it; provided, however, that the Collateral Agent shall
have no duty to the Debtor to exercise any such right, privilege or option and shall
not be responsible for any failure to do so or delay in so doing. |
(b) | In order to permit the Collateral Agent to exercise the voting and other
consensual rights that it may be entitled to exercise pursuant hereto and to receive
all dividends and other distributions that it may be entitled to receive hereunder,
(i) the Debtor shall promptly execute and deliver (or cause to be executed and
delivered) to the Collateral Agent all such proxies, dividend payment orders and other
instruments as the Collateral Agent may from time to time reasonably request and
(ii) without limiting the effect of clause (i) above, the Debtor hereby grants to the
Collateral Agent an irrevocable proxy to vote all or any part of the Pledged Collateral
and to exercise all other rights, powers, privileges and remedies to which a holder of
the Pledged Collateral would be entitled (including giving or withholding written
consents of shareholders, partners or members, as the case may be, calling special
meetings of shareholders, partners or members, as the case may be, and voting at such
meetings), which proxy shall be effective, automatically and without the necessity of
any action (including any transfer of any Pledged Collateral on the record books of the
issuer thereof) by any other person (including the issuer of such Pledged Collateral or
any officer or agent thereof) during the continuance of an Event of Default and which
proxy shall only terminate upon Discharge of Lender Claims. |
(c) | The Debtor hereby expressly authorizes and instructs each issuer of any Pledged
Collateral pledged hereunder by the Debtor to (i) comply with any instruction received
by it from the Collateral Agent in writing that (A) states that an Event of Default has
occurred and is continuing and (B) is otherwise in accordance with the terms of this
Agreement, without any other or further instructions from the Debtor, and the Debtor
agrees that such issuer shall be fully protected in so complying and (ii) unless
otherwise expressly permitted hereby, pay any dividend or other payment with respect to
the Pledged Collateral directly to the Collateral Agent. |
(a) | During the continuance of an Event of Default, if the Collateral Agent shall
determine to exercise its right to sell any of the Pledged Collateral, and if in the
reasonable opinion of the Collateral Agent it is necessary or advisable to have the
Pledged Collateral, or any portion thereof, registered under the provisions of the STA
or any similar securities laws in any other applicable jurisdiction (the “Securities
Act”), the Debtor shall use its reasonable efforts to cause the issuer thereof to
(i) execute and deliver, and cause the directors and officers of such issuer to execute
and deliver, all such instruments and documents, and do or cause to be done all such
other acts as may be, in the opinion of the Collateral Agent, necessary or advisable to
register the Pledged Collateral, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its reasonable efforts to cause the
registration statement relating thereto to become effective and to remain effective for
a period of one year from the date of the first public offering of the Pledged
Collateral, or that portion thereof to be sold and (iii) make all amendments thereto or
to the related prospectus that, in the opinion of the Collateral Agent, are necessary
or advisable, all in conformity with the requirements of the Securities Act and the
rules and regulations of any securities commission applicable thereto. The Debtor
agrees to cause such issuer to comply with the provisions of the applicable securities
laws of any jurisdiction that the Collateral Agent shall designate and to make
available to its security holders, as soon as practicable, an earnings statement (which
need not be audited) satisfying the provisions of the Securities Act. |
(b) | The Debtor recognizes that the Collateral Agent may be unable to effect a
public sale of any Pledged Collateral by reason of certain prohibitions contained in
the Securities Act and applicable regulations or otherwise or may determine that a
public sale is impracticable or not commercially reasonable and, accordingly, may
resort to one or more private sales thereof to a restricted group of purchasers that
shall be obliged to agree, among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or resale thereof. The
Debtor acknowledges and agrees that any such private sale may result in prices and
other terms less favourable than if such sale were a public sale and, notwithstanding
such circumstances, agrees that any such private sale shall be deemed to have been made
in a commercially reasonable manner. The
Collateral Agent shall be under no obligation to delay a sale of any Pledged
Collateral for the period of time necessary to permit the issuer thereof to register
such securities for public sale under the Securities Act, even if such issuer would
agree to do so. |
(c) | During the continuance of an Event of Default, the Debtor agrees to use its
best efforts to do or cause to be done all such other acts as may be necessary to make
such sale or sales of all or any portion of the Pledged Collateral pursuant to this
Section 6.12 valid and binding and in compliance with all other applicable Requirements
of Law. The Debtor further agrees that a breach of any covenant contained in this
Section 6.12 will cause irreparable injury to the Collateral Agent and the other
Secured Parties, that the Collateral Agent and the other Secured Parties have no
adequate remedy at law in respect of such breach and, as a consequence, that each and
every covenant contained in this Section 6.12 shall be specifically enforceable against
the Debtor, and the Debtor hereby waives and agrees not to assert any defense against
an action for specific performance of such covenants except for a defense that no Event
of Default has occurred under the Credit Agreement. |
(a) | At the time provided in Section 10.7(b)(i) of the Credit Agreement, the
Collateral shall be released from the Liens hereby and this Agreement and all
obligations (other than those expressly stated to survive such termination) of the
Collateral Agent and the Debtor hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to the Collateral
shall revert to the Debtor. At the request and sole expense of the Debtor following
any such termination, the Collateral Agent shall deliver to the Debtor any Collateral
of the Debtor held by the Collateral Agent hereunder and execute and deliver to the
Debtor, at the sole expense of the Debtor, such documents as the Debtor shall
reasonably request to evidence such termination. |
(b) | If the Collateral Agent shall be directed or permitted pursuant to
Section 10.7(b)(ii) or (iii) of the Credit Agreement to release any Lien created hereby
upon any Collateral (including any Collateral sold or disposed of by the Debtor in a
transaction permitted by the Credit Agreement), such Collateral shall be released from
the Lien created hereby to the extent provided under, and subject to the terms and
conditions set forth in, Section 10.7(b)(ii) or (iii) of the Credit Agreement. In
connection therewith but subject to the terms of the Credit Agreement, the Collateral
Agent, at the request and sole expense of the Debtor, shall execute and deliver to the
Debtor, all releases or other documents reasonably necessary or desirable for the
release of the Lien created hereby on such Collateral. |
(c) | At the request and sole expense of the Debtor, the Debtor shall be released
from its obligations hereunder in the event that all the capital stock of the Debtor
shall be so sold or disposed (but only so long as such sale or other disposition is
permitted under the Credit Agreement); provided, however, that the Debtor shall have
delivered to the Collateral Agent, at least ten Business Days prior to the date of the
proposed release, a written request for release identifying the Debtor and the terms of
the sale or other disposition in reasonable detail, including the price thereof and any
expenses in connection therewith, together with a certification by the Debtor in form
and substance satisfactory to the Collateral Agent stating that such transaction is in
compliance with the Loan Documents. |
(a) | Any legal action or proceeding with respect to this Agreement may be brought in
the courts of the Province of Ontario, and, by execution and delivery of this
Agreement, the Debtor hereby accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid court. The Debtor
hereby irrevocably waives any objection, including any objection to the laying of venue
or based on the grounds of forum non conveniens, that it may now or hereafter have to
the bringing of any such action or proceeding in such respective jurisdictions. |
(b) | The Debtor hereby irrevocably consents to the service of any and all legal
process, summons, notices and documents in any suit, action or proceeding brought in
Canada arising out of or in connection with this Agreement by the mailing (by
registered or certified mail, postage prepaid) or delivering of a copy of such process
to the Debtor at the address specified in Section 11.8 (Notices, Etc.) of the Credit
Agreement. The Debtor agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. |
(c) | Nothing contained in this Section 8.13 shall affect the right of the Collateral
Agent or any other Secured Party to serve process in any other manner permitted by law
or commence legal proceedings or otherwise proceed against the Debtor in any other
jurisdiction. |
(a) | shall, upon receipt of notice to do so by the Collateral Agent, xxxx
conspicuously each chattel paper evidencing or relating to Accounts Receivable and each
related contract and, at the request of the Collateral Agent, each of its records
pertaining to the Collateral with a legend, in form and substance satisfactory to the
Collateral Agent, indicating that such chattel paper, related contract or Collateral is
subject to the security interests granted hereby; |
(b) | shall, if any Accounts Receivable shall be evidenced by a promissory note or
other instrument or chattel paper, deliver and pledge to the Collateral Agent hereunder
such note, instrument or chattel paper duly endorsed and accompanied by duly executed
instruments of transfer or assignment, all in form and substance satisfactory to the
Collateral Agent; |
(c) | shall execute and file such financing or continuation statements, or
amendments, thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Collateral Agent may request, in order to perfect and preserve the
security interests granted or purported to be granted hereby; |
(d) | hereby authorizes the Collateral Agent to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of the
Collateral without the signature of the Debtor, where permitted by law; and |
(e) | shall furnish to the Collateral Agent from time to time, upon request,
statements and schedules further identifying and describing the Collateral and such
other reports in connection with the Collateral as the Collateral Agent may reasonably
request, all in reasonable detail. |
(a) | The Debtor agrees to indemnify and save harmless the Collateral Agent and the
Secured Parties from and against any and all claims, losses and liabilities arising out
of or resulting out of or resulting from this Agreement (including, without limitation,
enforcement of this Agreement). |
(b) | The Debtor will upon demand pay to the Collateral Agent the amount of any and
all expenses, including the fees and disbursements of its counsel and of any experts
and agents, which the Collateral Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use or operation of,
or the sale of, collection from, or other realization upon, any of the Collateral,
(iii) the exercise or enforcement of any of the rights or remedies of the Collateral
Agent hereunder or (iv) the failure by the Debtor to perform or observe any of the
provisions hereunder. |
WARNACO OF CANADA COMPANY, as Debtor |
||||||
Per: | /s/ Xxxxxxxx X. Xxxxxxxxx
Title: Vice-President |
|||||
BANK OF AMERICA, N.A., as Collateral Agent |
||||||
Per: | /s/ Xxxxx X. Xxxxxxxx
|
|||||
Title: Vice President |
Annex 1
|
Form of Short Form Copyright Security Agreement | |
Annex 2
|
Form of Short Form Patent Security Agreement | |
Annex 3
|
Form of Short Form Trademark Security Agreement | |
Schedule 1
|
Jurisdiction of Organization; Principal Executive Office | |
Schedule 2
|
Pledged Collateral | |
Schedule 3
|
Filings | |
Schedule 4
|
Location of Inventory and Equipment | |
Schedule 5
|
Intellectual Property | |
Schedule 6
|
[Intentionally omitted] | |
Schedule 7
|
Deposit Accounts and Securities Accounts |
Very truly yours, [Grantor], as Grantor |
||||
By: | ||||
Name: | ||||
Title: |
as of the date first above written:
as Collateral Agent for the Secured Parties
By: |
||||
Title: |
State of
|
) | |||||||
) | ss. | |||||||
County of
|
) | |||||||
1. | REGISTERED COPYRIGHTS |
2. | COPYRIGHT APPLICATIONS |
3. | EXCLUSIVE COPYRIGHT LICENSES |
Very truly yours, [Grantor], as Grantor |
||||
By: | ||||
Name: | ||||
Title: |
as of the date first above written:
as Collateral Agent for the Secured Parties
By: |
||||
Title: |
State of
|
) | |||||||
) | ss. | |||||||
County of
|
) | |||||||
1. | PATENTS |
2. | PATENT APPLICATIONS |
Very truly yours, [Grantor], as Grantor |
||||
By: | ||||
Name: | ||||
Title: |
as of the date first above written:
as Collateral Agent for the Secured Parties
By: |
||||
Title: |
State of
|
) | |||||||
) | ss. | |||||||
County of
|
) | |||||||
1. | REGISTERED TRADEMARKS |
2. | TRADEMARK APPLICATIONS |
Xxxxxxx xx Xxxxxx Company
Secured Party: Bank of America, N.A.
Registration Date (and Term): 2005-03-22 (10 years)
Collateral Description: A security interest is taken in all of the debtor’s present and after acquired personal property.
Note — This registration is to be discharged at closing.
Xxxxxxx xx Xxxxxx Company
Secured Party: Bank of America, National Association
Registration Date (and Term): 2005-03-22 (10 years)
Collateral Description: A security interest is taken in all of the debtor’s present and after acquired personal property.
Note — This registration is to be discharged at closing.
Xxxxxxx xx Xxxxxx Company
Secured Party: Bank of America, N.A., as Collateral Agent
Registration Date (and Term): 2008-08-22 (7 years)
Collateral Description: A security interest is taken in all of the debtor’s present and after acquired personal property.
Locations
as at August 11, 0000
XXXXXXXX | XXXXXXX | |
XXXXXXX XX XXXXXX COMPANY (Administration & DC] |
00000 Xxxxx Xxxxxx Xxxxxx Baie d’Xxxx, Xxxxxx X0X 0X0 |
|
XXXXXXX XX XXXXXX (Sales Office & Showroom) |
000 Xxxx Xxxxxx Xxxx #000 & #000 Xxxxxxx, Xxxxxxx X0X 0X0 |
|
CRESCENT STREET (Showroom) |
0000 Xxxxxxxx Xx. 0xx Xxxxx Xxxxxxxx, Xxxxxx X0X 0X0 |
|
VANCOUVER (Shworoom) |
000 Xxxx 0xx Xxxxxx, Xxxx X Xxxxxxxxx, X.X. X0X 0X0 |
|
CALGARY (Showroom) |
Unit 000 0000-0xx Xxxxxx XX Xxxxxxx, Xxxxxxx X0X 0X0 |
|
Bloor St., ON
|
000 Xxxxx Xx. Xxxxxxx, Xxxxxxx X0X 0X0 |
|
Xxxxxxx Xxxxx, ON
|
Xxxxxxx Xxxxx Shopping Centre 1 Bass Pro Xxxxx Xxxxx Xxxx 000 Xxxxxxx, Xxxxxxx X0X 0X0 |
|
Sherway Gardens, ON
|
Sherway Gardens Mall 25 West Mall, Unit 1009B Etobicoke, Ontario M9C IB8 |
|
Mega-Centre Ste-Dorothee (Laval, QC)
|
Xxxxxx Xxxxx 0000 Xxxxxxxxx 00, Xxxx 00X Xxxxx, Xxxxxx X0X 0X0 |
|
Heartland, ON
|
Heartland Town Centre 0000 Xxxxx Xxxxx, Xxxx #0 Xxxxxxxxxxx, Xxxxxxx X0X 0X0 |
|
Brossard Xxx00, XX
|
Xxxxxxxxx Xxx00 0000 Xxxxx Xxxxxx, Xxxx #00 Xxxxxxxx, Xxxxxx X0X OA5 |
|
West Edmonton Mall, AB
|
West Edmonton Mall 8882-170th Street, Xxxx #0000 Xxxxxxxx, Xxxxxxx X0X 0X0 |
Locations
as at August 11, 2008
LOCATION | ADDRESS | |
Xxxxxxx Xxxxx, ON
|
Xxxxxxx Xxxxx Shopping Centre 1 Bass Pro Xxxxx Xxxxx Xxxx 000 Xxxxxxx, Xxxxxxx X0X 0X0 |
|
Queensborough Landing, BC
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Queensborough Landing 000 Xxxx Xxxxxx, Xxxx #X000 Xxx Xxxxxxxxxxx, XX X0X 0X0 |
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Bromont, QC
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Carrefour Champêtre Bromont 000 Xxxxx Xxxxxxxxx, Xxxx #000 Xxxxxxx, Xxxxxx X0X 0X0 |
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Royal Bank Plaza, ON
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Royal Bank Plaza 000 Xxx Xxxxxx, Xxxx #XX 000 Xxxxxxx, Xxxxxxx X0X 0X0 |
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Xxxxxxxxx, Xxxxxxx, XX
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Xxxxxxxxx Xxxxxxxx Xxxxxx 0 Xxxxxxxxx Xxxxxx, Unit #244B Xxxxxxxxx, Ontario L4J 4P8 |
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Vaudreuil, QC
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Mega-Centre Vaudreuil 0000 xxxx. xx xx Xxxx, Xxxx #000 Xxxxxxxxx-Xxxxxx, Quebec J7V OJ5 |
1 | Clearly identify each Deposit Account which is
maintained as a concentration account of Grantor. |