EXHIBIT 10.11
Execution Copy
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AMENDED AND RESTATED
GUARANTEE AND COLLATERAL AGREEMENT
made by
NBC HOLDINGS CORP.,
NBC ACQUISITION CORP.,
NEBRASKA BOOK COMPANY, INC.
and
SPECIALTY BOOKS, INC.
in favor of
JPMORGAN CHASE BANK,
as Administrative Agent
Dated as of February 13, 1998,
as amended and restated as of December 10, 2003 and as further amended
and restated as of March 4, 2004
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TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS....................................................................................... 2
1.1 Definitions....................................................................................... 2
1.2 Other Definitional Provisions..................................................................... 5
SECTION 2. GUARANTEE........................................................................................... 5
2.1 Guarantee......................................................................................... 5
2.2 Right of Contribution............................................................................. 6
2.3 No Subrogation.................................................................................... 6
2.4 Amendments, etc. with respect to the Borrower Obligations......................................... 6
2.5 Guarantee Absolute and Unconditional.............................................................. 7
2.6 Reinstatement..................................................................................... 8
2.7 Payments.......................................................................................... 8
SECTION 3. GRANT OF SECURITY INTEREST.......................................................................... 8
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................................................... 9
4.1 Representations in Credit Agreement............................................................... 9
4.2 Title; No Other Liens............................................................................. 9
4.3 Perfected First Priority Liens.................................................................... 10
4.4 Jurisdiction of Organization; Chief Executive Office.............................................. 10
4.5 Inventory and Equipment........................................................................... 10
4.6 Farm Products..................................................................................... 10
4.7 Investment Property............................................................................... 10
4.8 Receivables....................................................................................... 11
4.9 Intellectual Property............................................................................. 11
SECTION 5. COVENANTS........................................................................................... 11
5.1 Covenants in Credit Agreement..................................................................... 11
5.2 Delivery of Instruments, Certificated Securities and Chattel Paper................................ 11
5.3 Maintenance of Perfected Security Interest; Further Documentation................................. 12
5.4 Changes in Locations, Name, etc................................................................... 12
5.5 Notices........................................................................................... 12
5.6 Investment Property............................................................................... 13
5.7 Receivables....................................................................................... 14
5.8 Intellectual Property............................................................................. 14
SECTION 6. REMEDIAL PROVISIONS................................................................................. 15
6.1 Certain Matters Relating to Receivables........................................................... 15
6.2 Communications with Obligors; Grantors Remain Liable.............................................. 16
6.3 Pledged Stock..................................................................................... 16
6.4 Proceeds to be Turned Over To Administrative Agent................................................ 17
6.5 Application of Proceeds........................................................................... 18
6.6 Code and Other Remedies........................................................................... 18
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6.7 Registration Rights............................................................................... 19
6.8 Deficiency........................................................................................ 20
SECTION 7. THE ADMINISTRATIVE AGENT............................................................................ 20
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc....................................... 20
7.2 Duty of Administrative Agent...................................................................... 22
7.3 Execution of Financing Statements................................................................. 22
7.4 Authority of Administrative Agent................................................................. 22
SECTION 8. MISCELLANEOUS....................................................................................... 22
8.1 Amendments in Writing............................................................................. 22
8.2 Notices........................................................................................... 23
8.3 No Waiver by Course of Conduct; Cumulative Remedies............................................... 23
8.4 Enforcement Expenses; Indemnification............................................................. 23
8.5 Successors and Assigns............................................................................ 23
8.6 Set-Off........................................................................................... 24
8.7 Counterparts...................................................................................... 24
8.8 Severability...................................................................................... 24
8.9 Section Headings.................................................................................. 24
8.10 Integration...................................................................................... 24
8.11 GOVERNING LAW.................................................................................... 25
8.12 Submission To Jurisdiction; Waivers.............................................................. 25
8.13 Acknowledgements................................................................................. 25
8.14 WAIVER OF JURY TRIAL............................................................................. 26
8.15 Additional Grantors.............................................................................. 26
8.16 Releases......................................................................................... 26
8.17 Effect of Amendment and Restatement of the Existing Guarantee and Collateral Agreement........... 26
SCHEDULES
Schedule 1 Notice Addresses
Schedule 2 Investment Property
Schedule 3 Perfection Matters
Schedule 4 Jurisdictions of Organization and Chief Executive Offices
Schedule 5 Inventory and Equipment Locations
Schedule 6 Intellectual Property
Schedule 7 Existing Prior Liens
ANNEXES
Annex 1 Assumption Agreement
AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT
AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT, dated
as of February 13, 1998, as amended and restated as of December 10, 2003, and as
further amended and restated as of March 4, 2004, made by each of the
signatories hereto (together with any other entity that may become a party
hereto as provided herein, the "Grantors"), in favor of JPMORGAN CHASE BANK, as
collateral agent and administrative agent (in such capacity, the "Administrative
Agent") for the banks and other financial institutions (the "Lenders") from time
to time parties to the Credit Agreement, dated as of February 13, 1998, as
amended and restated as of December 10, 2003, and as further amended and
restated as of March 4, 2004 (as further amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among NBC Holdings Corp.
("SuperHoldings"), NBC Acquisition Corp. ("Holdings"), Nebraska Book Company,
Inc. (the "Borrower"), the Lenders, the Administrative Agent and the other
agents party thereto.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower upon the terms and
subject to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the
Credit Agreement will be used in part to enable the Borrower to make valuable
transfers to one or more of the other Grantors in connection with the operation
of their respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in
related businesses, and each Grantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreement;
WHEREAS, the Borrower and certain of the other Grantors and
the Administrative Agent are parties to the Guarantee and Collateral Agreement,
dated as of February 13, 1998, as amended and restated as of December 10, 2003
(the "Existing Guarantee and Collateral Agreement"), and executed in connection
with the Existing Credit Agreement (as such term is defined in the Credit
Agreement); and
WHEREAS, it is a condition precedent to the effectiveness of
the amendment and restatement of the Existing Credit Agreement and the
obligation of the Lenders to make their respective extensions of credit to the
Borrower under the Credit Agreement that the Grantors shall have executed and
delivered this Agreement to the Administrative Agent for the ratable benefit of
the Secured Parties;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and certain of the other Secured Parties to enter into
the amendment and restatement of the Existing Credit Agreement and to induce the
Lenders to make their respective extensions of credit to the Borrower under the
Credit Agreement, each Grantor hereby agrees
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with the Administrative Agent, for the ratable benefit of the Secured Parties,
that, upon the effectiveness of this Agreement, the Existing Guarantee and
Collateral Agreement is hereby amended and restated in its entirety as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement, and the following terms which are defined in the
Uniform Commercial Code in effect in the State of New York from time to time are
used herein as so defined: Accounts, Certificated Security, Chattel Paper,
Commercial Tort Claims, Deposit Account, Documents, Equipment, Farm Products,
General Intangibles, Instruments, Inventory, Letter-of-Credit Rights and
Supporting Obligations.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the
same may be amended, supplemented or otherwise modified from time to
time.
"Borrower Obligations": the collective reference to (i) the
unpaid principal of and interest on the Loans and Reimbursement
Obligations, (ii) all other obligations and liabilities of the Borrower
(including, without limitation, interest accruing at the then
applicable rate provided in the Credit Agreement after the maturity of
the Loans and Reimbursement Obligations and interest accruing at the
then applicable rate provided in the Credit Agreement after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or
not a claim for post-filing or post-petition interest is allowed in
such proceeding) to the Administrative Agent or any Lender (or, in the
case of any Hedge Agreement referred to below, any Affiliate of any
Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Credit Agreement, this
Agreement, the other Loan Documents, any Letter of Credit or any Hedge
Agreement entered into by the Borrower with any Lender (or any
Affiliate of any Lender) or any other document made, delivered or given
in connection therewith and (iii) if agreed upon by the Borrower, the
Administrative Agent and any applicable Lender, the obligations of the
Borrower in respect of cash management services provided by such Lender
(or any Affiliate of such Lender), in each case whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees
and disbursements of counsel to the Administrative Agent or to the
Lenders that are required to be paid by the Borrower pursuant to the
terms of any of the foregoing agreements).
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by
the Administrative Agent as provided in Section 6.1 or 6.4.
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"Copyrights": (i) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished
(including, without limitation, those listed in Schedule 6), all
registrations and recordings thereof, and all applications in
connection therewith, including, without limitation, all registrations,
recordings and applications in the United States Copyright Office, and
(ii) the right to obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor
as licensor or licensee (including, without limitation, those listed in
Schedule 6), granting any right under any Copyright, including, without
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"Guarantor Obligations": with respect to any Guarantor, the
collective reference to (i) the Borrower Obligations, (ii) all
obligations and liabilities of such Guarantor which may arise under or
in connection with this Agreement or any other Loan Document to which
such Guarantor is a party and (iii) if agreed upon by the applicable
Guarantor, the Administrative Agent and any applicable Lender, the
obligations of such Guarantor in respect of cash management services
provided by such Lender (or any Affiliate of such Lender), in each case
whether on account of guarantee obligations, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent or to the Lenders that are required to be paid by such Guarantor
pursuant to the terms of this Agreement or any other Loan Document).
"Guarantors": the collective reference to each Grantor other
than the Borrower.
"Hedge Agreements": as to any Person, all interest rate swaps,
caps or collar agreements or similar arrangements entered into by such
Person providing for protection against fluctuations in interest rates
or currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, multinational or foreign laws or
otherwise, including, without limitation, the Copyrights, the Copyright
Licenses, the Patents, the Patent Licenses, the Trademarks and the
Trademark Licenses, and all rights to xxx at law or in equity for any
infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Intercompany Note": any promissory note evidencing loans made
by any Grantor to SuperHoldings or any of its Subsidiaries.
"Investment Property": the collective reference to (i) all
"investment property" as such term is defined in Section 9-102(a)(49)
of the New York UCC and (ii) whether or not constituting "investment
property" as so defined, all Pledged Notes and all Pledged Stock.
"Issuers": the collective reference to each issuer of a
Pledged Stock.
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"New York UCC": the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Obligations": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Patents": (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and
extensions thereof and all goodwill associated therewith, including,
without limitation, any of the foregoing referred to in Schedule 6,
(ii) all applications for letters patent of the United States or any
other country and all divisions, continuations and
continuations-in-part thereof, including, without limitation, any of
the foregoing referred to in Schedule 6, and (iii) all rights to obtain
any reissues or extensions of the foregoing.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to any Grantor of any right to
manufacture, use or sell any invention covered in whole or in part by a
Patent, including, without limitation, any of the foregoing referred to
in Schedule 6.
"Pledged Notes": all promissory notes listed on Schedule 2,
all Intercompany Notes at any time issued to any Grantor and all other
promissory notes issued to or held by any Grantor (other than
promissory notes issued in connection with extensions of trade credit
by any Grantor in the ordinary course of business).
"Pledged Stock": the shares of Capital Stock listed on
Schedule 2, together with any other shares, stock certificates, options
or rights of any nature whatsoever in respect of the Capital Stock of
any Person that may be issued or granted to, or held by, any Grantor
while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-102(a)(64) of the Uniform Commercial Code in effect in the State of
New York on the date hereof and, in any event, shall include, without
limitation, all dividends or other income from the Investment Property,
collections thereon or distributions or payments with respect thereto.
"Receivable": any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an
Instrument or Chattel Paper and whether or not it has been earned by
performance (including, without limitation, any Account).
"Secured Parties": the collective reference to (i) the
Administrative Agent, (ii) the Lenders (including, without limitation,
any Issuing Lender and any Swing Line Lender), (iii) any other holder
from time to time of any of the Obligations and (iv) the permitted
successors and assigns of any of the foregoing.
"Securities Act": the Securities Act of 1933, as amended.
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"Trademarks": (i) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers,
and all goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, and all common-law rights related
thereto, including, without limitation, any of the foregoing referred
to in Schedule 6, and (ii) the right to obtain all renewals thereof.
"Trademark License": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred
to in Schedule 6.
1.2 Other Definitional Provisions. (a) The words "hereof,"
"herein", "hereto" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section and Schedule references are to this
Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. (a). Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Administrative
Agent, for the ratable benefit of the Secured Parties and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment
and performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations.
(b) Anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at
any time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing the guarantee contained in this Section 2
or affecting the rights and remedies of the Administrative Agent or any other
Secured Party hereunder.
(d) The guarantee contained in this Section 2 shall remain in
full force and effect until all the Borrower Obligations and the obligations of
each Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full, no Letter of Credit shall
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be outstanding and the Commitments shall be terminated, notwithstanding that
from time to time during the term of the Credit Agreement the Borrower may be
free from any Borrower Obligations.
(e) No payment made by the Borrower, any of the Guarantors,
any other guarantor or any other Person or received or collected by the
Administrative Agent or any other Secured Party from the Borrower, any of the
Guarantors, any other guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Borrower Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder which shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Borrower Obligations or any
payment received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum
liability of such Guarantor hereunder until the Borrower Obligations are paid in
full, no Letter of Credit shall be outstanding and the Commitments are
terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that
to the extent that a Guarantor shall have paid more than its proportionate share
of any payment made hereunder, such Guarantor shall be entitled to seek and
receive contribution from and against any other Guarantor hereunder which has
not paid its proportionate share of such payment. Each Guarantor's right of
contribution shall be subject to the terms and conditions of Section 2.3. The
provisions of this Section 2.2 shall in no respect limit the obligations and
liabilities of any Guarantor to the Administrative Agent and the other Secured
Parties, and each Guarantor shall remain liable to the Administrative Agent and
other Secured Parties for the full amount guaranteed by such Guarantor
hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
the Administrative Agent or any other Secured Party, no Guarantor shall be
entitled to be subrogated to any of the rights of the Administrative Agent or
any other Secured Party against the Borrower or any other Guarantor or any
collateral security or guarantee or right of offset held by the Administrative
Agent or any other Secured Party for the payment of the Borrower Obligations,
nor shall any Guarantor seek or be entitled to seek any contribution or
reimbursement from the Borrower or any other Guarantor in respect of payments
made by such Guarantor hereunder, until all amounts owing to the Administrative
Agent and the other Secured Parties by the Borrower on account of the Borrower
Obligations are paid in full, no Letter of Credit shall be outstanding and the
Commitments are terminated. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Borrower
Obligations shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Administrative Agent and the other Secured Parties,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Administrative Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Borrower
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine.
2.4 Amendments, etc. with respect to the Borrower Obligations.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against
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any Guarantor and without notice to or further assent by any Guarantor, any
demand for payment of any of the Borrower Obligations made by the Administrative
Agent or any other Secured Party may be rescinded by the Administrative Agent or
such other Secured Party and any of the Borrower Obligations continued, and the
Borrower Obligations, or the liability of any other Person upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any other Secured Party, and the Credit
Agreement and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the Required
Lenders or all Lenders, as the case may be) may deem advisable from time to
time, and any collateral security, guarantee or right of offset at any time held
by the Administrative Agent or any other Secured Party for the payment of the
Borrower Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Administrative Agent nor any other Secured Party shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Borrower Obligations or for the guarantee contained in this
Section 2 or any property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any
of the Borrower Obligations and notice of or proof of reliance by the
Administrative Agent or any other Secured Party upon the guarantee contained in
this Section 2 or acceptance of the guarantee contained in this Section 2; the
Borrower Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in
reliance upon the guarantee contained in this Section 2; and all dealings
between the Borrower and any of the Guarantors, on the one hand, and the
Administrative Agent and the other Secured Parties, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance upon
the guarantee contained in this Section 2. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrower or any of the Guarantors with respect to the Borrower
Obligations. Each Guarantor understands and agrees that the guarantee contained
in this Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Credit Agreement or any other Loan Document, any of the Borrower Obligations or
any other collateral security therefor or guarantee or right of offset with
respect thereto at any time or from time to time held by the Administrative
Agent or any other Secured Party, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrower or any other Person against the
Administrative Agent or any other Secured Party, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrower or such
Guarantor) which constitutes, or might be construed to constitute, an equitable
or legal discharge of the Borrower for the Borrower Obligations, or of such
Guarantor under the guarantee contained in this Section 2, in bankruptcy or in
any other instance. When making any demand hereunder or otherwise pursuing its
rights and remedies hereunder against any Guarantor, the Administrative Agent or
any other Secured Party may, but shall be under no obligation to, make a similar
demand on or otherwise pursue such rights and remedies as it may have against
the Borrower, any other Guarantor or any other Person or against any collateral
security or guarantee for the Borrower Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent or any other
Secured Party to
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make any such demand, to pursue such other rights or remedies or to collect any
payments from the Borrower, any other Guarantor or any other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Borrower, any other Guarantor or any
other Person or any such collateral security, guarantee or right of offset,
shall not relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent or any other Secured
Party against any Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2
shall continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the Borrower Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any other Secured Party upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or any Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or any Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
2.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the office of the Administrative Agent located at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the
Administrative Agent, and hereby grants to the Administrative Agent, for the
ratable benefit of the Secured Parties, a security interest in, all of the
following property now owned or at any time hereafter acquired by such Grantor
or in which such Grantor now has or at any time in the future may acquire any
right, title or interest (collectively, the "Collateral"), as collateral
security for the prompt and complete payment and performance when due (whether
at the stated maturity, by acceleration or otherwise) of such Grantor's
Obligations,:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
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(i) all Inventory;
(j) all Investment Property;
(k) all other property not otherwise described above;
(l) all books and records pertaining to the Collateral; and
(m) to the extent not otherwise included, all Proceeds,
Supporting Obligations and products of any and all of the foregoing and
all collateral security and guarantees given by any Person with respect
to any of the foregoing;
provided, however, that notwithstanding any of the other
provisions set forth in this Section 3, this Agreement shall not constitute a
grant of a security interest in any property to the extent that such grant of a
security interest is prohibited by any Requirements of Law of a Governmental
Authority, requires a consent not obtained of any Governmental Authority
pursuant to such Requirement of Law or is prohibited by, or constitutes a breach
or default under or results in the termination of or requires any consent not
obtained under, any contract, license, agreement, instrument or other document
evidencing or giving rise to such property or, in the case of any Investment
Property, Pledged Stock or Pledged Note, any applicable shareholder or similar
agreement, except to the extent that such Requirement of Law or the term in such
contract, license, agreement, instrument or other document or shareholder or
similar agreement providing for such prohibition, breach, default or termination
or requiring such consent is ineffective under applicable law.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and certain of the other
Secured Parties to enter into the Credit Agreement and to induce the Lenders to
make their respective extensions of credit to the Borrower thereunder, each
Grantor hereby represents and warrants to the Administrative Agent and each
other Secured Party that:
4.1 Representations in Credit Agreement. In the case of each
Guarantor, the representations and warranties set forth in Section 4 of the
Credit Agreement as they relate to such Guarantor or to the Loan Documents to
which such Guarantor is a party, each of which is hereby incorporated herein by
reference, are true and correct, and the Administrative Agent and each other
Secured Party shall be entitled to rely on each of them as if they were fully
set forth herein, provided that each reference in each such representation and
warranty to the Borrower's knowledge shall, for the purposes of this Section
4.1, be deemed to be a reference to such Guarantor's knowledge.
4.2 Title; No Other Liens. Except for the security interest
granted to the Administrative Agent for the ratable benefit of the Secured
Parties pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Credit Agreement, such Grantor owns each item of the
Collateral free and clear of any and all Liens or claims of others. No financing
statement or other public notice with respect to all or any part of the
Collateral is on file or of record in any public office, except such as have
been filed in favor of the
10
Administrative Agent, for the ratable benefit of the Secured Parties, pursuant
to this Agreement or as are permitted by the Credit Agreement.
4.3 Perfected First Priority Liens. The security interests
granted pursuant to this Agreement upon completion of the filings and other
actions specified on Schedule 3 (which, in the case of all filings and other
documents referred to on said schedule, have been delivered to the
Administrative Agent in completed and, where applicable, duly executed form)
constitute valid perfected security interests in all of the Collateral
(excluding items 3(c) and 3(k)) in favor of the Administrative Agent, for the
ratable benefit of the Secured Parties, as collateral security for such
Grantor's Obligations, enforceable in accordance with the terms hereof against
all creditors of such Grantor and any Persons purporting to purchase any
Collateral from such Grantor and are prior to all other Liens on the Collateral
in existence on the date hereof except for (i) unrecorded Liens permitted by the
Credit Agreement which have priority over the Liens on the Collateral by
operation of law and (ii) Liens described on Schedule 7.
4.4 Jurisdiction of Organization; Chief Executive Office. On
the date hereof, such Grantor's jurisdiction of organization, identification
number from the jurisdiction of organization (if any), and the location of such
Grantor's chief executive office or sole place of business or principal
residence, as the case may be, are specified on Schedule 4. Such Grantor has
furnished to the Administrative Agent a certified charter, certificate of
incorporation or other organization document and long-form good standing
certificate as of a date which is recent to the date hereof.
4.5 Inventory and Equipment. On the date hereof, the Inventory
and the Equipment (other than mobile goods) are kept at the locations listed on
Schedule 5.
4.6 Farm Products. None of the Collateral constitutes, or is
the Proceeds of, Farm Products.
4.7 Investment Property. (a) The shares of Pledged Stock
pledged by such Grantor hereunder constitute all the issued and outstanding
shares of all classes of the Capital Stock of each Issuer owned by such Grantor.
(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and
binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and
has good and marketable title to, the Investment Property pledged by it
hereunder, free of any and all Liens or options in favor of, or claims of, any
other Person, except the security interest created by this Agreement.
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4.8 Receivables. (a) No amount payable to such Grantor under
or in connection with any Receivable is evidenced by any Instrument or Chattel
Paper which has not been delivered to the Administrative Agent.
(b) None of the obligors on any Receivables is a Governmental
Authority.
(c) The amounts represented by such Grantor to the Secured
Parties from time to time as owing to such Grantor in respect of the Receivables
will at such times be accurate.
4.9 Intellectual Property. (a) Schedule 6 lists all
applications for registration and registered Intellectual Property owned by such
Grantor in its own name on the date hereof.
(b) On the date hereof, all material Intellectual Property is
valid, subsisting, unexpired and enforceable, has not been abandoned and does
not infringe the intellectual property rights of any other Person.
(c) Except as set forth in Schedule 6, on the date hereof,
none of the Intellectual Property is the subject of any licensing or franchise
agreement pursuant to which such Grantor is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of, or
such Grantor's rights in, any Intellectual Property in any respect that could
reasonably be expected to have a Material Adverse Effect.
(e) No action or proceeding is pending, or, to the knowledge
of such Grantor, threatened, on the date hereof (i) seeking to limit, cancel or
question the validity of any Intellectual Property or such Grantor's ownership
interest therein, or (ii) which, if adversely determined, would have a material
adverse effect on the value of any Intellectual Property.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative
Agent and the other Secured Parties that, from and after the date of this
Agreement until the Obligations shall have been paid in full, no Letter of
Credit shall be outstanding and the Commitments shall have terminated:
5.1 Covenants in Credit Agreement. In the case of each
Guarantor, such Guarantor shall take, or shall refrain from taking, as the case
may be, each action that is necessary to be taken or not taken, as the case may
be, so that no Default or Event of Default is caused by the failure to take such
action or to refrain from taking such action by such Guarantor or any of its
Subsidiaries.
5.2 Delivery of Instruments, Certificated Securities and
Chattel Paper. If any amount payable under or in connection with any of the
Collateral shall be or become evidenced by any Instrument, Certificated Security
or Chattel Paper, such Instrument, Certificated Security or Chattel Paper shall
be immediately delivered to the Administrative Agent, duly indorsed in a
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manner satisfactory to the Administrative Agent, to be held as Collateral
pursuant to this Agreement.
5.3 Maintenance of Perfected Security Interest; Further
Documentation. (a) Such Grantor shall maintain the security interest created by
this Agreement as a perfected security interest having at least the priority
described in Section 4.3 and shall defend such security interest against the
claims and demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Administrative Agent and
the other Secured Parties from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
therewith as the Administrative Agent may reasonably request, all in reasonable
detail.
(c) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of such Grantor,
such Grantor will promptly and duly execute and deliver, and have recorded, such
further instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and powers
herein granted, including, without limitation, (i) filing any financing or
continuation statements under the Uniform Commercial Code (or other similar
laws) in effect in any jurisdiction with respect to the security interests
created hereby and (ii) in the case of Investment Property, Letter-of-Credit
Rights and any other relevant Collateral, taking any actions necessary to enable
the Administrative Agent to obtain "control" (within the meaning of the
applicable Uniform Commercial Code) with respect thereto.
5.4 Changes in Locations, Name, etc. Such Grantor will not,
except upon 15 days' prior written notice to the Administrative Agent and
delivery to the Administrative Agent of all additional financing statements and
other documents reasonably requested by the Administrative Agent, if any,
necessary to maintain the validity, perfection and priority of the security
interests provided for herein:
(i) change its jurisdiction of organization or the location of
its chief executive office or sole place of business or principal
residence, as the case may be, from that referred to in Section 4.4; or
(ii) change its name.
5.5 Notices. Such Grantor will advise the Administrative Agent
and the other Secured Parties promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or
Liens permitted under the Credit Agreement) on any of the Collateral
which would adversely affect the ability of the Administrative Agent to
exercise any of its remedies hereunder; and
(b) of the occurrence of any other event which could
reasonably be expected to have a material adverse effect on the
aggregate value of the Collateral or on the security interests created
hereby.
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5.6 Investment Property. (a) If such Grantor shall become
entitled to receive or shall receive any certificate (including, without
limitation, any certificate representing a dividend or a distribution in
connection with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or rights in
respect of the Capital Stock of any Issuer, whether in addition to, in
substitution of, as a conversion of, or in exchange for, any shares of the
Pledged Stock, or otherwise in respect thereof, such Grantor shall accept the
same as the agent of the Administrative Agent and the other Secured Parties,
hold the same in trust for the Administrative Agent and the other Secured
Parties and deliver the same forthwith to the Administrative Agent in the exact
form received, duly indorsed by such Grantor to the Administrative Agent, if
required, together with an undated stock power covering such certificate duly
executed in blank by such Grantor and with, if the Administrative Agent so
requests, signature guaranteed, to be held by the Administrative Agent, subject
to the terms hereof, as additional collateral security for the Obligations. Any
sums paid upon or in respect of the Investment Property upon the liquidation or
dissolution of any Issuer shall be paid over to the Administrative Agent to be
held by it hereunder as additional collateral security for the Obligations, and
in case any distribution of capital shall be made on or in respect of the
Investment Property or any property shall be distributed upon or with respect to
the Investment Property pursuant to the recapitalization or reclassification of
the capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected security
interest in favor of the Administrative Agent, be delivered to the
Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations. If any sums of money or property so paid or
distributed in respect of the Investment Property shall be received by such
Grantor, such Grantor shall, until such money or property is paid or delivered
to the Administrative Agent, hold such money or property in trust for the
Administrative Agent and the other Secured Parties, segregated from other funds
of such Grantor, as additional collateral security for the Obligations.
(b) Without the prior written consent of the Administrative
Agent (except pursuant to a transaction expressly permitted by the Credit
Agreement), such Grantor will not (i) vote to enable, or take any other action
to permit, any Issuer to issue any Capital Stock of any nature or to issue any
other securities convertible into or granting the right to purchase or exchange
for any Capital Stock of any nature of any Issuer, (ii) sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with respect to, the
Investment Property or Proceeds thereof, (iii) create, incur or permit to exist
any Lien or option in favor of, or any claim of any Person with respect to, any
of the Investment Property or Proceeds thereof, or any interest therein, except
for the security interests created by this Agreement or (iv) enter into any
agreement or undertaking restricting the right or ability of such Grantor or the
Administrative Agent to sell, assign or transfer any of the Investment Property
or Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such
Issuer agrees that (i) it will be bound by the terms of this Agreement relating
to the Investment Property issued by it and will comply with such terms insofar
as such terms are applicable to it, (ii) it will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
5.8(a) with respect to the Investment Property issued by it and (iii) the terms
of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to
all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with
respect to the Investment Property issued by it.
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5.7 Receivables. (a) Other than in the ordinary course of
business consistent with its past practice, such Grantor will not (i) grant any
extension of the time of payment of any Receivable, (ii) compromise or settle
any Receivable for less than the full amount thereof, (iii) release, wholly or
partially, any Person liable for the payment of any Receivable, (iv) allow any
credit or discount whatsoever on any Receivable or (v) amend, supplement or
modify any Receivable in any manner that could adversely affect the value
thereof.
(b) Such Grantor will deliver to the Administrative Agent a
copy of each material demand, notice or document received by it that questions
or calls into doubt the validity or enforceability of more than 5% of the
aggregate amount of the then outstanding Receivables.
5.8 Intellectual Property. (a) Such Grantor (either itself or
through licensees) will (i) continue to use each material Trademark on each and
every trademark class of goods applicable to its current line as reflected in
its current catalogs, brochures and price lists in order to maintain such
Trademark in full force free from any claim of abandonment for non-use, (ii)
maintain as in the past the quality of products and services offered under such
Trademark, (iii) use such Trademark with the appropriate notice of registration
and all other notices and legends required by applicable Requirements of Law,
(iv) not adopt or use any xxxx which is confusingly similar or a colorable
imitation of such Trademark unless the Administrative Agent, for the ratable
benefit of the Secured Parties, shall obtain a perfected security interest in
such xxxx pursuant to this Agreement, and (v) not (and not permit any licensee
or sublicensee thereof to) do any act or knowingly omit to do any act whereby
such Trademark may become invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees) will not
do any act, or omit to do any act, whereby any material Patent may become
forfeited, abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees) (i) will
employ each material Copyright and (ii) will not (and will not permit any
licensee or sublicensee thereof to) do any act or knowingly omit to do any act
whereby any material portion of the Copyrights may become invalidated or
otherwise impaired. Such Grantor will not (either itself or through licensees)
do any act whereby any material portion of the Copyrights may fall into the
public domain.
(d) Such Grantor (either itself or through licensees) will not
do any act that knowingly uses any material Intellectual Property to infringe
the intellectual property rights of any other Person.
(e) Such Grantor will notify the Administrative Agent and the
other Secured Parties immediately if it knows, or has reason to know, that any
application or registration relating to any material Intellectual Property may
become forfeited, abandoned or dedicated to the public, or of any adverse
determination or development (including, without limitation, the institution of,
or any such determination or development in, any proceeding in the United States
Patent and Trademark Office, the United States Copyright Office or any court or
tribunal in any country) regarding such Grantor's ownership of, or the validity
of, any material Intellectual Property or such Grantor's right to register the
same or to own and maintain the same.
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(f) Whenever such Grantor, either by itself or through any
agent, employee, licensee or designee, shall file an application for the
registration of any Intellectual Property with the United States Patent and
Trademark Office, the United States Copyright Office or any similar office or
agency in any other country or any political subdivision thereof, such Grantor
shall report such filing to the Administrative Agent within five Business Days
after the last day of the fiscal quarter in which such filing occurs. Upon
request of the Administrative Agent, such Grantor shall execute and deliver, and
have recorded, any and all agreements, instruments, documents, and papers as the
Administrative Agent may request to evidence the Administrative Agent's and the
other Secured Parties' security interest in any Copyright, Patent or Trademark
and the goodwill and general intangibles of such Grantor relating thereto or
represented thereby.
(g) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of the material Intellectual Property, including,
without limitation, filing of applications for renewal, affidavits of use and
affidavits of incontestability.
(h) In the event that any material Intellectual Property is
infringed, misappropriated or diluted by a third party, such Grantor shall (i)
take such actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property and (ii) if such
Intellectual Property is of material economic value, promptly notify the
Administrative Agent after it learns thereof and xxx for infringement,
misappropriation or dilution, to seek injunctive relief where appropriate and to
recover any and all damages for such infringement, misappropriation or dilution.
SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) The
Administrative Agent shall have the right to make test verifications of the
Receivables in any manner and through any medium that it reasonably considers
advisable, and each Grantor shall furnish all such assistance and information as
the Administrative Agent may require in connection with such test verifications.
At any time and from time to time, upon the Administrative Agent's request and
at the expense of the relevant Grantor, such Grantor shall cause independent
public accountants or others satisfactory to the Administrative Agent to furnish
to the Administrative Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Receivables.
(b) The Administrative Agent hereby authorizes each Grantor to
collect such Grantor's Receivables, subject to the Administrative Agent's
direction and control, and the Administrative Agent may curtail or terminate
said authority at any time after the occurrence and during the continuance of an
Event of Default. If required by the Administrative Agent at any time after the
occurrence and during the continuance of an Event of Default, any payments of
Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any
`event, within two Business Days) deposited by such Grantor in the exact form
received, duly indorsed by such Grantor to the Administrative Agent if required,
in a Collateral Account maintained under the sole dominion and control of the
Administrative Agent, subject to withdrawal by the
16
Administrative Agent for the account of the Secured Parties only as provided in
Section 6.5, and (ii) until so turned over, shall be held by such Grantor in
trust for the Administrative Agent and the other Secured Parties, segregated
from other funds of such Grantor. Each such deposit of Proceeds of Receivables
shall be accompanied by a report identifying in reasonable detail the nature and
source of the payments included in the deposit.
(c) At the Administrative Agent's request, each Grantor shall
deliver to the Administrative Agent all original and other documents evidencing,
and relating to, the agreements and transactions which gave rise to the
Receivables, including, without limitation, all original orders, invoices and
shipping receipts.
6.2 Communications with Obligors; Grantors Remain Liable. (a)
The Administrative Agent in its own name or in the name of others may at any
time after the occurrence and during the continuance of an Event of Default
communicate with obligors under the Receivables to verify with them to the
Administrative Agent's satisfaction the existence, amount and terms of any
Receivables.
(b) Upon the request of the Administrative Agent at any time
after the occurrence and during the continuance of an Event of Default, each
Grantor shall notify obligors on the Receivables that the Receivables have been
assigned to the Administrative Agent for the ratable benefit of the Secured
Parties and that payments in respect thereof shall be made directly to the
Administrative Agent.
(c) Anything herein to the contrary notwithstanding, each
Grantor shall remain liable under each of the Receivables to observe and perform
all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise
thereto. Neither the Administrative Agent nor any other Secured Party shall have
any obligation or liability under any Receivable (or any agreement giving rise
thereto) by reason of or arising out of this Agreement or the receipt by the
Administrative Agent or any other Secured Party of any payment relating thereto,
nor shall the Administrative Agent or any other Secured Party be obligated in
any manner to perform any of the obligations of any Grantor under or pursuant to
any Receivable (or any agreement giving rise thereto), to make any payment, to
make any inquiry as to the nature or the sufficiency of any payment received by
it or as to the sufficiency of any performance by any party thereunder, to
present or file any claim, to take any action to enforce any performance or to
collect the payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.
6.3 Pledged Stock. (a) Unless an Event of Default shall have
occurred and be continuing and the Administrative Agent shall have given notice
to the relevant Grantor of the Administrative Agent's intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted
to receive all cash dividends paid in respect of the Pledged Stock and all
payments made in respect of the Pledged Notes, in each case paid in the normal
course of business of the relevant Issuer and consistent with past practice, to
the extent permitted in the Credit Agreement, and to exercise all voting and
corporate or other organizational rights with respect to the Investment
Property; provided, however, that no vote shall be cast or corporate or other
organizational right exercised or other action taken which, in the
Administrative Agent's reasonable judgment, would impair the Collateral or which
would be inconsistent with or result
17
in any violation of any provision of the Credit Agreement, this Agreement or any
other Loan Document.
(b) If an Event of Default shall occur and be continuing and
the Administrative Agent shall give notice of its intent to exercise such rights
to the relevant Grantor or Grantors, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Investment Property and make application thereof to the
Obligations in the order set forth in Section 6.5, and (ii) any or all of the
Investment Property shall be registered in the name of the Administrative Agent
or its nominee, and the Administrative Agent or its nominee may thereafter
exercise (x) all voting, corporate and other rights pertaining to such
Investment Property at any meeting of shareholders of the relevant Issuer or
Issuers or otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Investment Property as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the
Investment Property upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate or other
organizational structure of any Issuer, or upon the exercise by any Grantor or
the Administrative Agent of any right, privilege or option pertaining to such
Investment Property, and in connection therewith, the right to deposit and
deliver any and all of the Investment Property with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may determine), all without liability
except to account for property actually received by it, but the Administrative
Agent shall have no duty to any Grantor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing.
(c) Each Grantor hereby authorizes and instructs each Issuer
of any Investment Property pledged by such Grantor hereunder to (i) comply with
any instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Investment Property directly to the Administrative Agent.
6.4 Proceeds to be Turned Over To Administrative Agent. In
addition to the rights of the Administrative Agent and the other Secured Parties
specified in Section 6.1 with respect to payments of Receivables, if an Event of
Default shall occur and be continuing, all Proceeds received by any Grantor
consisting of cash, checks and other near-cash items shall be held by such
Grantor in trust for the Administrative Agent and the other Secured Parties,
segregated from other funds of such Grantor, and shall, forthwith upon receipt
by such Grantor, be turned over to the Administrative Agent in the exact form
received by such Grantor (duly indorsed by such Grantor to the Administrative
Agent, if required). All Proceeds received by the Administrative Agent hereunder
shall be held by the Administrative Agent in a Collateral Account maintained
under its sole dominion and control. All Proceeds while held by the
Administrative Agent in a Collateral Account (or by such Grantor in trust for
the Administrative Agent and the other Secured Parties) shall continue to be
held as collateral security for all the Obligations and shall not constitute
payment thereof until applied as provided in Section 6.5.
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6.5 Application of Proceeds. At such intervals as may be
agreed upon by the Borrower and the Administrative Agent, or, if an Event of
Default shall have occurred and be continuing, at any time at the Administrative
Agent's election, the Administrative Agent may apply all or any part of Proceeds
constituting Collateral, whether or not held in any Collateral Account, and any
proceeds of the guarantee set forth in Section 2, in payment of the Obligations
in the following order:
First, to pay incurred and unpaid fees and expenses of the
Administrative Agent under the Loan Documents;
Second, to the Administrative Agent, for application by it
towards payment of amounts then due and owing and remaining unpaid in
respect of the Obligations, pro rata among the Secured Parties
according to the amounts of the Obligations then due and owing and
remaining unpaid to the Secured Parties;
Third, to the Administrative Agent, for application by it
towards prepayment of the Obligations, pro rata among the Secured
Parties according to the amounts of the Obligations then held by the
Secured Parties; and
Fourth, any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid
over to the Borrower or to whomsoever may be lawfully entitled to
receive the same.
6.6 Code and Other Remedies. If an Event of Default shall
occur and be continuing, the Administrative Agent, on behalf of the Secured
Parties, may exercise, in addition to all other rights and remedies granted to
them in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a secured
party under the New York UCC or any other applicable law. Without limiting the
generality of the foregoing, the Administrative Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon any
Grantor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase, or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, at any exchange, broker's board or office of
the Administrative Agent or any other Secured Party or elsewhere upon such terms
and conditions as it may deem advisable and at such prices as it may deem best,
for cash or on credit or for future delivery without assumption of any credit
risk. The Administrative Agent or any other Secured Party shall have the right
upon any such public sale or sales, and, to the extent permitted by law, upon
any such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in any Grantor,
which right or equity is hereby waived and released. Each Grantor further
agrees, at the Administrative Agent's request, to assemble the Collateral and
make it available to the Administrative Agent at places which the Administrative
Agent shall reasonably select, whether at such Grantor's premises or elsewhere.
The Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this
19
Section 6.6, after deducting all reasonable costs and expenses of every kind
incurred in connection therewith or incidental to the care or safekeeping of any
of the Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent and the other Secured Parties hereunder, including, without
limitation, reasonable attorneys' fees and disbursements, to the payment in
whole or in part of the Obligations, in such order as the Administrative Agent
may elect, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-615(a)(3) of the New York UCC, need the
Administrative Agent account for the surplus, if any, to any Grantor. To the
extent permitted by applicable law, each Grantor waives all claims, damages and
demands it may acquire against the Administrative Agent or any other Secured
Party arising out of the exercise by them of any rights hereunder. If any notice
of a proposed sale or other disposition of Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least 10 days
before such sale or other disposition.
6.7 Registration Rights. (a) If the Administrative Agent shall
determine to exercise its right to sell any or all of the Pledged Stock pursuant
to Section 6.6, and if in the opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Stock, or that portion thereof to be
sold, registered under the provisions of the Securities Act, the relevant
Grantor will 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 Administrative Agent, necessary or advisable to
register the Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best 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 Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Grantor agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the provisions
of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may
be unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will 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. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that no such private sale shall be
deemed to have been made in a commercially unreasonable manner solely because it
has had such a result. The Administrative Agent shall be under no obligation to
delay a sale of any of the Pledged Stock for the period of time necessary to
permit the Issuer thereof to register such securities for public sale under the
Securities Act, or under applicable state securities laws, even if such Issuer
would agree to do so.
20
(c) Each Grantor 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 Stock pursuant to this Section 6.7 valid and
binding and in compliance with any and all other applicable Requirements of Law.
Each Grantor further agrees that a breach of any of the covenants contained in
this Section 6.7 will cause irreparable injury to the Administrative Agent and
the other Secured Parties, that the Administrative 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 6.7 shall be
specifically enforceable against such Grantor, and such Grantor hereby waives
and agrees not to assert any defenses against an action for specific performance
of such covenants except for a defense that no Event of Default has occurred
under the Credit Agreement.
6.8 Deficiency. Each Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay its Obligations and the fees and disbursements of any
attorneys employed by the Administrative Agent or any other Secured Party to
collect such deficiency.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent's Appointment as Attorney-in-Fact,
etc. (a) Each Grantor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, and, without limiting the generality of the
foregoing, each Grantor hereby gives the Administrative Agent the power and
right, on behalf of such Grantor, without notice to or assent by such Grantor,
to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise,
take possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under
any Receivable with respect to any other Collateral and file any claim
or take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Administrative Agent for the
purpose of collecting any and all such moneys due under any Receivable
or with respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and
deliver, and have recorded, any and all agreements, instruments,
documents and papers as the Administrative Agent may request to
evidence the Administrative Agent's and the other Secured Parties'
security interest in such Intellectual Property and the goodwill and
general intangibles of such Grantor relating thereto or represented
thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of
the premiums therefor and the costs thereof;
21
(iv) execute, in connection with any sale provided for in
Section 6.6 or 6.7, any indorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral; and
(v) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct; ask or demand for, collect, and
receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising
out of any Collateral; sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral; commence and
prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any
portion thereof and to enforce any other right in respect of any
Collateral; defend any suit, action or proceeding brought against such
Grantor with respect to any Collateral; settle, compromise or adjust
any such suit, action or proceeding and, in connection therewith, give
such discharges or releases as the Administrative Agent may deem
appropriate; assign any Copyright, Patent or Trademark (along with the
goodwill of the business to which any such Copyright, Patent or
Trademark pertains), throughout the world for such term or terms, on
such conditions, and in such manner, as the Administrative Agent shall
in its sole discretion determine; and generally, sell, transfer, pledge
and make any agreement with respect to or otherwise deal with any of
the Collateral as fully and completely as though the Administrative
Agent were the absolute owner thereof for all purposes, and do, at the
Administrative Agent's option and such Grantor's expense, at any time,
or from time to time, all acts and things which the Administrative
Agent deems necessary to protect, preserve or realize upon the
Collateral and the Administrative Agent's and the other Secured
Parties' security interests therein and to effect the intent of this
Agreement, all as fully and effectively as such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in
connection with actions undertaken as provided in this Section 7.1, together
with interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Revolving Credit Loans that are Base
Rate Loans under the Credit Agreement, from the date of payment by the
Administrative Agent to the date reimbursed by the relevant Grantor, shall be
payable by such Grantor to the Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this
22
Agreement are coupled with an interest and are irrevocable until this Agreement
is terminated and the security interests created hereby are released.
7.2 Duty of Administrative Agent. The Administrative Agent's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any other Secured Party nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Administrative Agent and the other Secured Parties hereunder
are solely to protect the Administrative Agent's and the other Secured Parties'
interests in the Collateral and shall not impose any duty upon the
Administrative Agent or any other Secured Party to exercise any such powers. The
Administrative Agent and the other Secured Parties shall be accountable only for
amounts that they actually receive as a result of the exercise of such powers,
and neither they nor any of their officers, directors, employees or agents shall
be responsible to any Grantor for any act or failure to act hereunder, except
for their own gross negligence or willful misconduct.
7.3 Execution of Financing Statements. Pursuant to any
applicable law, each Grantor authorizes the Administrative Agent to file or
record financing statements and other filing or recording documents or
instruments with respect to the Collateral without the signature of such Grantor
in such form and in such offices as the Administrative Agent reasonably
determines appropriate to perfect the security interests of the Administrative
Agent under this Agreement. Each Grantor authorizes the Administrative Agent to
use the collateral description "all personal property" in any such financing
statements. Each Grantor hereby ratifies and authorizes the filing by the
Administrative Agent of any financing statement with respect to the Collateral
made prior to the date hereof.
7.4 Authority of Administrative Agent. Each Grantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Administrative
Agent and the other Secured Parties, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Administrative Agent and the Grantors, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Secured Parties with full and valid authority so to act or refrain from
acting, and no Grantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified except
in accordance with subsection 10.1 of the Credit Agreement.
23
8.2 Notices. All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in subsection 10.2 of the Credit Agreement; provided that any such
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on Schedule 1.
8.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Administrative Agent nor any other Secured Party shall by any act
(except by a written instrument pursuant to Section 8.1), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default. No failure to exercise,
nor any delay in exercising, on the part of the Administrative Agent or any
other Secured Party, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent or
any other Secured Party of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Administrative
Agent or such other Secured Party would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any other rights or remedies provided
by law.
8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor
agrees to pay or reimburse each Secured Party, including the Administrative
Agent, for all its reasonable out-of-pocket costs and expenses incurred in
collecting against such Guarantor under the guarantee contained in Section 2 or
otherwise enforcing or preserving any rights under this Agreement and the other
Loan Documents to which such Guarantor is a party, including, without
limitation, the reasonable fees and disbursements of one counsel (including the
allocated fees and expenses of in-house counsel) to each Secured Party (other
than the Administrative Agent) and of counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the
Administrative Agent and the other Secured Parties harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes which may be payable or determined to be
payable with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the
Administrative Agent and the other Secured Parties harmless from, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant to
subsection 10.5 of the Credit Agreement.
(d) The agreements in this Section 8.4 shall survive repayment
of the Obligations and all other amounts payable under the Credit Agreement and
the other Loan Documents.
8.5 Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of each Grantor and shall inure to the benefit
of the Administrative Agent and the other Secured Parties and their successors
and assigns; provided that no Grantor may
24
assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Administrative Agent.
8.6 Set-Off. Each Grantor hereby irrevocably authorizes the
Administrative Agent and each other Secured Party at any time and from time to
time while an Event of Default shall have occurred and be continuing, without
notice to such Grantor or any other Grantor, any such notice being expressly
waived by each Grantor, to set-off and appropriate and apply any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Administrative Agent or such other
Secured Party to or for the credit or the account of such Grantor, or any part
thereof in such amounts as the Administrative Agent or such other Secured Party
may elect, against and on account of the obligations and liabilities of such
Grantor to the Administrative Agent or such other Secured Party hereunder and
claims of every nature and description of the Administrative Agent or such other
Secured Party against such Grantor, in any currency, whether arising hereunder,
under the Credit Agreement, any other Loan Document or otherwise, as the
Administrative Agent or such other Secured Party may elect, whether or not the
Administrative Agent or any other Secured Party has made any demand for payment
and although such obligations, liabilities and claims may be contingent or
unmatured. The Administrative Agent and each other Secured Party shall notify
such Grantor promptly of any such set-off and the application made by the
Administrative Agent or such other Secured Party of the proceeds thereof,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Administrative Agent and each
other Secured Party under this Section 8.6 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Administrative Agent or such other Secured Party may have.
8.7 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.9 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
8.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Administrative Agent and the other
Secured Parties with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by the
Administrative Agent or any other Secured Party relative to subject matter
hereof and thereof not expressly set forth or referred to herein or in the other
Loan Documents.
25
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Grantor at its address referred to in Section 8.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
8.13 Acknowledgements. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents
to which it is a party;
(b) neither the Administrative Agent nor any other Secured
Party has any fiduciary relationship with or duty to any Grantor
arising out of or in connection with this Agreement or any of the other
Loan Documents, and the relationship between the Grantors, on the one
hand, and the Administrative Agent and other Secured Parties, on the
other hand, in connection herewith or therewith is solely that of
debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Secured Parties or among the Grantors and
the Secured Parties.
26
8.14 WAIVER OF JURY TRIAL. EACH OF THE GRANTORS AND THE
ADMINISTRATIVE AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.15 Additional Grantors. Each Subsidiary of the Borrower,
Holdings and SuperHoldings that is required to become a party to this Agreement
pursuant to subsection 6.10(c) of the Credit Agreement shall become a Grantor
for all purposes of this Agreement upon execution and delivery by such
Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.
8.16 Releases. (a) At such time as the Loans, the
Reimbursement Obligations and the other Obligations shall have been paid in
full, the Commitments have been terminated and no Letters of Credit shall be
outstanding, the Collateral shall be released from the Liens created hereby, and
this Agreement and all obligations (other than those expressly stated to survive
such termination) of the Administrative Agent and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors. At the
request and sole expense of any Grantor following any such termination, the
Administrative Agent shall deliver to such Grantor any Collateral held by the
Administrative Agent hereunder, and execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Grantor in a transaction permitted by the Credit
Agreement, then the Administrative Agent, at the request and sole expense of
such Grantor, shall execute and deliver to such Grantor all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on such Collateral. At the request and sole expense of the Borrower, a
Subsidiary Guarantor shall be released from its obligations hereunder in the
event that all the Capital Stock of such Subsidiary Guarantor shall be sold,
transferred or otherwise disposed of in a transaction permitted by the Credit
Agreement; provided that the Borrower shall have delivered to the Administrative
Agent, at least ten Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Subsidiary Guarantor and
the terms of the sale or other disposition in reasonable detail, including the
price thereof and any expenses in connection therewith, together with a
certification by the Borrower stating that such transaction is in compliance
with the Credit Agreement and the other Loan Documents.
8.17 Effect of Amendment and Restatement of the Existing
Guarantee and Collateral Agreement.
This Agreement shall be deemed to be an amendment to and restatement of the
Existing Guarantee and Collateral Agreement and the Existing Guarantee and
Collateral Agreement as amended and restated hereby shall remain in full force
and effect and is hereby ratified and confirmed in all respects. All references
to the Existing Guarantee and Collateral Agreement in any other agreement or
document shall, on and after the Closing Date, be deemed to refer to the
Existing Guarantee and Collateral Agreement as amended and restated hereby. Each
Grantor agrees, acknowledges and affirms that:
27
(i) each of this Agreement and the other Security Documents to
which it is a party shall remain in full force and effect and shall
constitute security for all extensions of credit pursuant to the
Existing Credit Agreement as amended and restated by the Credit
Agreement;
(ii) all of its obligations, liabilities and indebtedness
under this Agreement and the other Security Documents to which it is a
party remain in full force and effect on a continuous basis, unpaid,
unimpaired, uninterrupted and undischarged, after giving effect to the
amendment and restatement of the Existing Credit Agreement pursuant to
the Credit Agreement and the amendment and restatement of the Existing
Guarantee and Collateral Agreement pursuant to this Agreement;
(iii) all of the Liens and security interests created and
arising under this Agreement and the other Security Documents to which
it is a party remain in full force and effect on a continuous basis,
unpaid, unimpaired, uninterrupted and undischarged, and having the same
perfected status and priority, after giving effect to the amendment and
restatement of the Existing Credit Agreement pursuant to the Credit
Agreement and the amendment and restatement of the Existing Guarantee
and Collateral Agreement pursuant to this Agreement, as collateral
security for the Obligations; and
(iv) any reference to the Existing Guarantee and Collateral
Agreement appearing in any Loan Document shall on and after the Closing
Date be deemed to refer to the Existing Guarantee and Collateral
Agreement as amended and restated hereby.
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
NBC HOLDINGS CORP.
By: /s/ XXXX X. XXXX
---------------------------------------
Name: XXXX X. XXXX
Title: PRESIDENT, SECRETARY & TREASURER
NBC ACQUISITION CORP.
By: /s/ XXXX X. XXXXXX
---------------------------------------
Name: XXXX X. XXXXXX
Title: TREASURER
NEBRASKA BOOK COMPANY, INC.
By: /s/ XXXX X. XXXXXX
---------------------------------------
Name: XXXX X. XXXXXX
Title: CHIEF FINANCIAL OFFICER,
TREASURER & ASSISTANT SECRETARY
SPECIALTY BOOKS, INC.
By: /s/ XXXX X. XXXXXX
---------------------------------------
Name: XXXX X. XXXXXX
Title: TREASURER
JPMORGAN CHASE BANK,
as Administrative Agent
By: /s/ XXXX X. XXXXXX
---------------------------------------
Name: XXXX X. XXXXXX
Title: MANAGING DIRECTOR
Schedule 1
NOTICE ADDRESSES OF GUARANTORS
SuperHoldings: NBC Holdings Corp.
x/x Xxxxxx Xxxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx, Xxxx Xxxxxxx
Tower, 50th Fl
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxx
Fax: 000- 000-0000
Holdings: NBC Acquisition Corp.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
Specialty Books, Inc.: Specialty Books, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
Schedule 2
DESCRIPTION OF INVESTMENT PROPERTY
PLEDGED STOCK:
Class of No. of
Issuer Stock Stock Certificate No. Shares
Nebraska Book Company, Inc. Common 1 100
Specialty Books, Inc. Common 1 100
NBC Acquisition Corp. Common 209 512799.23
PLEDGED NOTES:
Issuer Payee Principal Amount
None.
2
Schedule 3
FILINGS AND OTHER ACTIONS REQUIRED
TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
Grantor State Jurisdiction
------- ----- ------------
Holdings DE Secretary of State
Borrower KS Secretary of State
Specialty Books, Inc. DE Secretary of State
SuperHoldings DE Secretary of State
Patent, Trademark and Copyright Filings
U.S. Patent and Trademark Office filing in respect of the following trademarks:
TRADITIONS, GIVE US THE FINGER and GIVE US A CLICK as set forth on Schedule 6.
Filings with the U.S. Patent and Trademark Office have been previously made by
Administrative Agent in respect of each other trademark listed on Schedule 6.
Filings with the Copyright Office of the United States Library of Congress have
been previously made by Administrative Agent in respect of each of the
copyrights listed on Schedule 6.
Actions with respect to Pledged; Stock
Certificates representing shares of Pledged Stock of the Borrower and Specialty
Books, Inc. have previously been delivered to Administrative Agent with undated
stock powers executed in blank attached thereto. Administrative Agent to
maintain possession of the certificates representing the Pledged Stock in the
State of New York. A certificate representing shares of Pledged Stock of
Holdings shall be delivered to Administrative Agent at closing together with an
undated stock power executed in blank attached thereto.
Other Actions
File continuation statements as required by Article 9 of the New York UCC.
3
Schedule 4
LOCATION OF JURISDICTION OF ORGANIZATION
AND CHIEF EXECUTIVE OFFICE
Grantor's Name and Location of Chief Organizational ID
Jurisdiction of Organization Executive Office Number
---------------------------- ---------------- -----------------
NBC Acquisition Corp., a Delaware Lincoln, Nebraska 2512222
corporation
Nebraska Book Co., Inc., a Kansas Lincoln, Nebraska 0326793
corporation
Specialty Books, Inc., a Delaware Lincoln, Nebraska 3512386
corporation
NBC Holdings Corp., a Delaware Lincoln, Nebraska 3757739
corporation
4
Schedule 5
LOCATION OF INVENTORY AND EQUIPMENT
NBC Acquisition Corp.: None.
Nebraska Book Company, Inc. has collateral at the following locations:
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
080 Nebraska Book Company, Inc.
0000 Xx. 00xx Xxxxxx
Xxxxxxx, XX 00000
080-2 Nebraska Book Company, Inc.,
0000 Xx. 00xx Xxxxxx
Xxxxxxx, XX 00000
080-3 Nebraska Book Company, Inc.
0000 Xx. 00xx Xxxxxx
Xxxxxxx, XX 00000
080-4 South Carolina Book Co.
000 Xxxxxx Xx.
Xxxx Xxxxxxxx, XX 00000
081 College Book Company
0000 Xxxxx Xxx
Xxxxxxx, XX 00000
101 Lemox Book Co.
0000 Xxxxxx Xx.
Xxxxxxx Xxxxx, XX 00000-0000
101-2 Hilltopper College Book Depot
000 Xxx Xxxxxxxxxx Xx.
Xxxxxxx Xxxxx, XX 00000
102 The Book Stop
000 00xx Xx.
Xxxxxxx, XX 00000-0000
103 the College Store
000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
5
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
104 Boomer Book Company
0000 X. Xxxxxxx
Xxxxxx, XX 00000
104-2 Sooner Textbooks
0000 Xxxxx Xxxxxxx
Xxxxxx, XX 00000-0000
105 Rocky Top Books
0000 X. Xxxxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
105-2 Rocky Top East
0000 Xxxx Xxxxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
106 Ned's Bookstore
000 Xxxx Xxxxx Xxxxx Xxx.
Xxxx Xxxxxxx, XX 00000
106-2 Ned's Bookstore
000-000 Xxxx Xxxxx Xxxxx Xxx.
Xxxx Xxxxxxx, XX 00000
107 Ned's Bookstore
000 X. Xxxxx Xx.
Xxxxxxxxx, XX 00000
107-2 Ned's COB Bookstore
0 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
107-3 Ned's Warehouse
000 X. Xxxxx Xx.
Xxxxxxxxx, XX 00000
107-4 Concordia College Bookstore
0000 Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
6
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
109 Xxxxx County College Bookstore
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
109-1 Xxxxx County College Bookstore
00000 Xxxxxxxxx
Xxxxxx, XX 00000
109-2 Xxxxx County College Bookstore
0000 Xxxx Xxxx Xx.
Xxxxxxx, XX 00000
109-3 Xxxxx County College Bookstore
0000 Xxxxxx
Xxxxxxx, XX 00000
109-4 Xxxxx County College Bookstore
0000 Xxxxxxxxxx
Xxxxxxx, XX 00000
110 Ned's Berkeley Bookstore
0000 Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
110-2 Ned's Berkeley Bookstore
0000 Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
110-3 Ned's Berkeley Warehouse
0000 Xxxxx Xx.
Xxxxxxxx, XX 00000
110-4 Ned's Berkeley Book Store - Boalt Hall
University of California Berkeley School of Law
Xxxxxxxx, XX 00000
112 College Book Rack
0000 X. Xxxxxxxxxxxxx Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, XX 00000
7
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
114 Lemox College Book & Supply
00000 XX 000xx Xx.
Xxxxx, XX 00000
116 the College Store
000 X. Xxxxxx Xx.
Xxxxxxx Xxxx, XX 00000
117 College Book Warehouse
0000 X. Xxxxx Xx.
Xxxxxxxxxx, XX 00000
118 the College Store
00000 Xxxxxxx Xxxx.
Xxxxxxxx Xxxx, XX 00000
119 University Book Shop
0000 Xxxx 00xx Xxxxxx
Xxxxxxxx, XX 00000
120 South Carolina Book Store
000 Xxxx Xx.
Xxxxxxxx, XX 00000
000-0 Xxxxxxxx Xxxxxx Xxxx
000 Xxxx Xx.
Xxxxxxxx, XX 00000
121 University Books of Charleston
000 Xxxx Xx.
Xxxxxxxxxx, XX 00000
123 The Antelope Bookstore
0000 Xxxx 00xx Xxxxxx
Xxxxxxx, XX 00000-0000
124 University Book & Supply
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
8
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
125 Saluki Bookstores
000 X. Xxxxx
Xxxxxxxxxx, XX 00000
125-2 Saluki Bookstore
000 X. Xxxxxxxx
Xxxxxxxxxx, XX 00000
126 Eagle Pride Bookstore
0000 Xxxxxxx Xx.
Xxxxxxx, XX 00000
000 Xxx Xxx Xxxx
Xxxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
130 Prairie Wolves Bookstore
Nebraska Wesleyan Univ.
Xxxxxxx, XX 00000
131 Rebelbooks
0000 X. Xxxxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
132 Xxxxx State College Bookstore
0000 Xxxx Xxxxxx
Xxxxx, XX 00000
133 GotUsed Bookstore
0000 Xxxxxx Xxx.
Xxxxxxxxxx, XX 00000
134 the College Store
000 Xxxxxx Xxx.
Xxxxxxx, XX 00000-0000
135 Nebraska Bookstore
0000 "X" Xxxxxx
Xxxxxxx, XX 00000
9
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
136 the College Store
0000 X. Xxxxx Xxxx
Xxxxx, XX 00000
137 the College Store
000 Xxxxxxx Xx.
Xxxxxxxxx, XX 00000
137-2 University Text & Tools
0000 Xx. Xxxxx Xxx
Xxxxxxxxx, XX 00000
138 University Book Centre
000 Xxxx Xxxxxxx Xxx.
Xxxxx Xxxxxxx, XX 00000
139 Arizona Book Store
000 Xxxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
139-2 Xxxxxx'x Bookstore
000 Xxxxx Xxxx Xxx, Xxxx 000
Xxxxxx, XX 00000
140 Tech Bookstore
000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
141 Collegiate Book Exchange
000 X. XxXxxxxx Xxxxxx
Xxxxxx, XX 00000
142 The College Store
000 X. Xxxxxxxx Xx.
Xxxxx, XX 00000
143 the College Store
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000
10
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
144 College Town
0000-0000 Xxxxx Xxxx Xx.
Xxxxxxxx, XX 00000
146 Georgia Bookstore
000 Xxxxxxxx Xxx., XX
Xxxxxxx, XX 00000-0000
147 the College Store
000 Xxxx X. Xxxxxx Xx.
Xxxxxxxxxx, XX 00000-0000
148 University Book Center
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
149 Specialty Books
0 Xxxxx Xxxxx Xx.
Xxxxxx, XX 00000
150 the College Store
0000 X. Xxxxxxx Xx., Xxx. 000
Xxxx Xxxxxxx, XX 00000
151 Ulrich's Bookstore
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
152 Textbook Outlet
0000 X. Xxxxxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
153 Michigan Book & Supply
000 Xxxxx Xxxxx Xx.
Xxx Xxxxx, XX 00000
154 Campus Book & Supply
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
11
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
156 The Campus Store
0000 X. Xxxxx Xxx.
Xxxxx, XX 00000
000 Xxxxxxxx Bookstore
0000 X. 00xx Xx.
Xxxxxxx, XX 00000-0000
159 the College Store
00 Xxxxx Xxxx
Xxxxxxx, XX 00000
161 L & M Bookstore
0000 X. Xxxx Xxx.
Xxx Xxxxxxx, XX 00000-0000
162 L & M UTSA Bookstore
00000 Xxxxxx Xx.
Xxx Xxxxxxx, XX 00000-0000
163 Campus Bookstore
0000 X. Xxxxxxxxxx Xxx., #000
Xxxxxx Xxxx, XX 00000
164 Cowboy Book
000 Xxxx Xxx
Xxxxxxxxxx, XX 00000-0000
165 Voertman's
0000 X. Xxxxxxx
Xxxxxx, XX 00000
166 Colloquim Books
000 Xxxxxxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
Colloquim Too!
000 X. XXX
Xxx Xxxxxx, XX 00000
12
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
000 Xxxxx Xxxxx Book & Supply
0000 X. Xxxxxxxxxx Xx.
Xxxxxxxx, XX 00000
South Texas Book & Supply, Too!
0000 X. Xxxxx
XxXxxxx, XX 00000
168 Double T Bookstore
0000 0xx Xx.
Xxxxxxx, XX 00000
Double T Bookstore II
000000xx Xx.
Xxxxxxx, XX 00000
Double T Bookstore III
0000 Xxxxxxxxxx Xxx.
Xxxxxxx, XX 00000
000 Xxxxxx Xxxxxx'x Xxxxxxxxx Xxxxxxx Bookstore
000 Xxxxx Xxxx
Xxxxx, XX 00000-0000
170 Maryland Book Exchange
0000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
171 University Book Store
0000 Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
000-0 X-Xxxxxx
Xxxxxxxx Xxxxxx Xxxx.
Xxx Xxxxxx, XX 00000
172 The Bookbridge
0000 Xxxxxx Xxxxxxx Xxxx
Xxxxxx, XX 00000
13
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
173 Maverick Bookstore
000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
175 College Bookstore
0000 X. X. Xxxxxx Xx.
Xxxxxxx, XX 00000
175-2 College Bookstore
00000 Xxxxxx Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
176 the College Store
000 X. Xxxx Xxx
Xxxxxxxxx, XX 00000
177 Varsity Book Store
0000 Xxxxxxxxx Xxx.
Xxxxxx, XX 00000
178 Spirit Shop
0000 Xxxxxxxx
Xxxxxxx, XX 00000
000 Xxxx Xxxx Xxxxx Xxxxxxxxxx Xxxxxxxxx
X.X. Xxxxxxx Xx., Xxxxx
Xxxxxxx Xxxx, XX 00000
192 Western Int'l University Bookstore
Main Campus
0000 X. Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
193 The Textbook Company
0000 X. Xxxxxxxx Xxx. #0
Xxxx, XX 00000
194 Spartan Bookstore
Michigan Xxxxx Xxxxxxxxxx
Xxxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000-0000
14
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
195 Stadium Bookstore
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
196 Packbackers Student Bookstore
0000 Xxxxxxxxxxxx
Xxxxxxx, XX 00000
000 Xxxxxxx Book Exchange
000 Xxxxx Xxx.
Xxxxxxx, XX 00000
199 College Book & Supply
00000 Xxxxxxxxxx Xxx, Xxx. 000
Xxxxxxx, XX 00000
199-2 Knight's Corner
00000 Xxxxxxxxxx Xxxx.
Xxxxxxx, XX 00000
200 Florida Book Store
0000 X. Xxxxxxxxxx Xxx.
Xxxxxxxxxxx, XX 00000
200-2 Florida Book Store Volume II
0000 XX 00xx Xx.
Xxxxxxxxxxx, XX 00000
201 Xxxxxx'x Bookstore (Northgate)
000 Xxxxxxx Xxx.
Xxxxxxx Xxxxxxx, XX 00000
000-0 Xxxxxx'x Xxxxxxxxx (Xxx Xxxx)
000 Xxxxxx Xxxx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000
201-2 Xxxxxx'x Bookstore (Woodstone)
000X Xxxxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
15
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
202 Bevo's Bookstore
00000 Xxxxxx Xxxx., Xxxxx X
Xxxxxx, XX 00000
206 Xxxxxx'x Bookstore
000 Xxxxx XXX
Xxx Xxxxxx, XX 00000
207 Xxxxxx'x Bookstore
0000 Xxxxx
Xxxxxxx, XX 00000
208 Bevo's ACC Bookstore
0000 Xxxx Xxx.
Xxxxxx, XX 00000
214 Xxxxxx'x Bookstore
000 Xxxxxx Xxx.
Xxxx, XX 00000
214-2 University Bookstore & Sprit Shop
0000 Xx. 0xx Xxxxxx
Xxxx, XX 00000
215 Xxxxxx'x Bookstore
0000 X. 00xx Xx.
Xxxxx, XX 00000
216 Varsity Book Store
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
217 Xxxxxx'x Bookstore
0000 X. Xxxxxxxxxx
Xxxxxxxxxxxx, XX 00000
218 Xxxxxx'x Bookstore
0000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
16
LOCATION ENTITY NAME /
NUMBER LOCATION ADDRESS
--------- ------------------------
376 NBC Graphics
000 Xxxxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
677 College Store Design
0000 Xxxxx Xxxxx, Xxx 000
Xxxxxxx, XX 00000
690 XxxXxxxxxXxx.xxx
0000 Xxxxx Xxxxx, Xxx 000
Xxxxxxx, XX 00000
684 Connect2One
0000 Xxxxxxxxxx Xx., Xxx. 000
Xxxxx, XX 00000-0000
Specialty Books, Inc. has collateral at the following locations:
682-2 Specialty Books, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
17
Schedule 6
INTELLECTUAL PROPERTY
TRADEMARKS
Trademark Serial No. Registration No. Jurisdiction Owned by
--------- ---------- ---------------- ------------ --------
GOT USED 76/294619 2633247 U.S. Federal Nebraska Book Company,
Inc.
CONNECT2ONE 76/119855 0000000 X.X. Xxxxxxx Xxxxxxxx Book Company,
Inc.
WEBPRISM 75/925323 N/A U.S. Federal Nebraska Book Company,
Inc.
NBCPRISM 75/925321 0000000 X.X. Xxxxxxx Xxxxxxxx Book Company,
Inc.
NBC GRAPHICS COLLEGIATE 75/820627 0000000 X.X. Xxxxxxx Xxxxxxxx Book Company,
WEAR "NO BETTER CHOICE" Inc.
and Design
NBC and Design 73/457327 0000000 X.X. Xxxxxxx Xxxxxxxx Book Company,
Inc.
XXXXXXXXX 00/000000 X/X X.X. Xxxxxxx Xxxxxxxx Book Company,
Inc.
SPECIALTY BOOKS 75/204128 2222166 U.S. Federal Specialty Books, Inc
TRADITIONS 78/344625 N/A U.S. Federal Nebraska Book Company,
Inc.
GIVE US THE FINGER 76/082301 N/A U.S. Federal Nebraska Book Company,
Inc.
GIVE US A CLICK 76/082507 0000000 X.X. Xxxxxxx Xxxxxxxx Book Company,
Inc.
18
COPYRIGHTS
Title Registration No. Jurisdiction Owned By
----- ---------------- ------------ --------
Nebraska Book Company's buyer's TX757441 U.S. Federal Nebraska BookCompany,
guide Inc.
Textbook buyers guide TX653450 U.S. Federal Nebraska Book Company,
Inc.
19
Schedule 7
EXISTING LIENS (1)
1. General Electric Capital Corporation has a lien on the described
equipment and all additions and replacement thereto. (2)
2. BCL Capital has a lien on the listed equipment. (3)
3. West Group has a lien on certain inventory sold on consignment. (4)
4. NBD Equipment Finance, Inc. has a lien on listed equipment. (5)
5. Toyota Motor Credit Corp. has a lien on a forklift. (6)
6. Mitel Capital Corporation has a lien on stated hardware and related
software and accessories. (7)
7. Bane One Leasing Corporation has a lien on listed equipment. (8)
8. US Bancorp has a lien on listed equipment. (9)
9. IKON Office Solutions has a lien on listed equipment. (10)
-----------------
(1) Certain liens in favor of XX Xxxxxx Xxxxx Bank and Chemical Bank, which have
been previously disclosed to Administrative Agent's counsel, remain filed in
their respective filing jurisdictions.
(2) Filed with the Nebraska Secretary of State. Filing states that financing
statement is filed for notice purposes only.
(3) Filed with Nebraska Secretary of State. Filing states that financing
statement is for informational purposes only.
(4) Filed with Nebraska Secretary of State.
(5) Filed with Nebraska Secretary of State. Filing states "No Security Interest
- True Lease Transaction - Precautionary Only".
(6) Filed with Nebraska Secretary of State. Filing states "This financing
statement is for information purposes only. The transaction referenced in this
financing statement is a lease."
(7) Filed with Nebraska Secretary of State.
(8) Filed with Nebraska Secretary of State.
(9) Filed with Nebraska Secretary of State. Filing states that "filing is for
informational purposes only".
(10) Filed with Texas Secretary of State.
20
10. ISI Commercial Refrigeration, L.P. has a lien on listed equipment. (11)
11. The following parcel of real property is subject to a mortgage held by
JeffersonPilot Life Insurance Company, with its administrative offices
located in Greensboro, NC: Campus Bookstore
0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX
---------------------
(11) Filed with Texas Secretary of State.
21
ACKNOWLEDGEMENT AND CONSENT(1)
The undersigned hereby acknowledges receipt of a copy of the Guarantee
and Collateral Agreement, dated as of February 13, 1998, as amended and restated
as of December 10, 2003, and as further amended and restated as of March 4, 2004
(the "Agreement"), made by the Grantors parties thereto for the benefit of
JPMORGAN CHASE BANK, as Administrative Agent. The undersigned agrees for the
benefit of the Administrative Agent and the other Secured Parties as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 5.6(a) of
the Agreement.
3. The terms of Sections 6.3(a) and 6.7 of the Agreement shall apply to
it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 6.3(a) or 6.7 of the Agreement.
[NAME OF ISSUER]
By:_____________________________________
Title:
Address for Notices:
Attention:
Fax:
SECTION 1. ________________________________
(1) This consent is necessary only with respect to any Issuer which is not
also a Grantor. This consent may be modified or eliminated with respect to any
Issuer that is not controlled by a Grantor. If a consent is required, its
execution and delivery should be included among the conditions to the initial
borrowing specified in the Credit Agreement.
Annex 1 to
Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of ________________________, 200_, made
by ______________________________, a ______________ corporation (the "Additional
Grantor"), in favor of JPMORGAN CHASE BANK, as administrative agent (in such
capacity, the "Administrative Agent") for the banks and other financial
institutions (the "Lenders") parties to the Credit Agreement referred to below.
All capitalized terms not defined herein shall have the meaning ascribed to them
in such Credit Agreement.
WITNESSETH:
WHEREAS, NBC Holdings Corp. ("SuperHoldings"). NBC Acquisition Corp.
("Holdings"), Nebraska Book Company, Inc. (the "Borrower"), the Lenders and the
Administrative Agent have entered into a Credit Agreement, dated as of February
13, 1998, as amended and restated as of December 10, 2003, and as further
amended and restated as of March 4, 2004 (as further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"):
WHEREAS, in connection with the Credit Agreement, SuperHoldings,
Holdings, the Borrower and certain of their Affiliates (other than the
Additional Grantor) have entered into the Amended and Restated Guarantee and
Collateral Agreement, dated as of February 13, 1998, as amended and restated as
of December 10, 2003, and as further amended and restated as of March 4, 2004
(as further amended, supplemented or otherwise modified from time to time, the
"Guarantee and Collateral Agreement") in favor of the Administrative Agent for
the benefit of the Secured Parties;
WHEREAS, the Credit Agreement requires the Additional Grantor to become
a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this
Assumption Agreement in order to become a party to the Guarantee and Collateral
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and delivering this
Assumption Agreement, the Additional Grantor, as provided in Section 8.15 of the
Guarantee and Collateral Agreement, hereby becomes a party to the Guarantee and
Collateral Agreement as a Grantor thereunder with the same force and effect as
if originally named therein as a Grantor and, without limiting the generality of
the foregoing, hereby expressly assumes all obligations and liabilities of a
Grantor thereunder. The information set forth in Annex 1-A hereto is hereby
added to the information set forth in Schedules______________________(1) to the
Guarantee and Collateral Agreement. The Additional Grantor hereby represents and
warrants that each of the representations and warranties contained in Section 4
of the Guarantee and Collateral Agreement
SECTION 1. ___________________________
(1) Refer to each Schedule which needs to be supplemented.
38
is true and correct on and as the date hereof (after giving effect to this
Assumption Agreement) as if made on and as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:______________________________________
Name:
Title:
