EXHIBIT 10.2
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GUARANTEE AND COLLATERAL AGREEMENT
made by
XXXXXXX ENTERPRISES, INC.
and certain of its Subsidiaries
in favor of
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
Dated as of October 22, 2003
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TABLE OF CONTENTS
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Section 1. DEFINED TERMS..................................................................................... 1
1.1 Definitions.................................................................................... 1
1.2 Other Definitional Provisions.................................................................. 7
Section 2. GUARANTEE......................................................................................... 7
2.1 Guarantee...................................................................................... 7
2.2 Right of Contribution.......................................................................... 8
2.3 Subrogation.................................................................................... 8
2.4 Amendments, etc. with respect to the Borrower Obligations...................................... 8
2.5 Guarantee Absolute and Unconditional........................................................... 9
2.6 Reinstatement.................................................................................. 10
2.7 Payments....................................................................................... 10
2.8 Covenants in Credit Agreement.................................................................. 10
Section 3. GRANT OF SECURITY INTEREST........................................................................ 10
Section 4. REPRESENTATIONS AND WARRANTIES.................................................................... 11
4.1 Representations in Credit Agreement............................................................ 11
4.2 Title; No Other Liens.......................................................................... 12
4.3 Perfected First Priority Liens................................................................. 12
4.4 Jurisdiction of Organization; Chief Executive Office........................................... 12
4.5 Inventory and Equipment........................................................................ 12
4.6 Farm Products.................................................................................. 12
4.7 Investment Property............................................................................ 12
4.8 Receivables.................................................................................... 13
4.9 Intellectual Property.......................................................................... 13
4.10 Vehicles....................................................................................... 13
Section 5. COVENANTS......................................................................................... 14
5.1 Delivery of Instruments and Chattel Paper...................................................... 14
5.2 Maintenance of Insurance....................................................................... 14
5.3 Payment of Obligations......................................................................... 14
5.4 Maintenance of Perfected Security Interest; Further Documentation.............................. 15
5.5 Changes in Name, etc........................................................................... 15
5.6 Investment Property............................................................................ 15
5.7 Receivables.................................................................................... 17
5.8 Intellectual Property.......................................................................... 17
5.9 Commercial Tort Claims......................................................................... 18
Section 6. REMEDIAL PROVISIONS............................................................................... 18
6.1 Certain Matters Relating to Receivables........................................................ 18
6.2 Communications with Obligors; Grantors Remain Liable........................................... 19
6.3 Pledged Stock.................................................................................. 19
6.4 Proceeds to be Turned Over To Administrative Agent............................................. 20
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6.5 Application of Proceeds........................................................................ 21
6.6 Code and Other Remedies........................................................................ 22
6.7 Registration Rights............................................................................ 23
6.8 Deficiency..................................................................................... 24
Section 7. THE ADMINISTRATIVE AGENT.......................................................................... 24
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.................................... 24
7.2 Duty of Administrative Agent................................................................... 26
7.3 Execution of Financing Statements.............................................................. 26
7.4 Authority of Administrative Agent.............................................................. 26
Section 8. MISCELLANEOUS..................................................................................... 27
8.1 Amendments in Writing.......................................................................... 27
8.2 Notices........................................................................................ 27
8.3 No Waiver by Course of Conduct; Cumulative Remedies............................................ 27
8.4 Enforcement Expenses; Indemnification.......................................................... 27
8.5 Successors and Assigns......................................................................... 28
8.6 Set-Off........................................................................................ 28
8.7 Counterparts................................................................................... 28
8.8 Severability................................................................................... 28
8.9 Section Headings............................................................................... 28
8.10 Integration.................................................................................... 29
8.11 GOVERNING LAW.................................................................................. 29
8.12 Submission To Jurisdiction; Waivers............................................................ 29
8.13 Acknowledgements............................................................................... 29
8.14 Additional Guarantors and Grantors............................................................. 30
8.15 Releases....................................................................................... 30
8.16 WAIVER OF JURY TRIAL........................................................................... 31
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Schedules
Schedule 1 Notice Addresses of Guarantors
Schedule 2 Description of Pledged Securities
Schedule 3 Filings and Other Actions Required to Perfect Security Interest
Schedule 4 Jurisdiction of Organization, Identification Number and Location of
Chief Executive Office
Schedule 5 Locations of Inventory and Equipment
Schedule 6 Intellectual Property
Schedule 7 Excluded Notes
Annexes
Annex I Assumption Agreement
Annex II Grant of Security Interest in Trademark Rights
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GUARANTEE AND COLLATERAL AGREEMENT, dated as of October 22, 2003, made
by XXXXXXX ENTERPRISES, INC., a Delaware corporation (the "Borrower"), and each
of the other signatories hereto (together with any other entity that may become
a party hereto as provided herein, the "Guarantors"), in favor of XXXXXX
COMMERCIAL PAPER INC., as 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
October 22, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the several banks and other
financial institutions or entities from time to time parties to the Credit
Agreement (the "Lenders"), Xxxxxx Brothers Inc., as advisor, lead arranger and
book manager (in such capacity, the "Arranger"),the Administrative Agent and the
other Agents parties thereto.
WITNESSETH:
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 Guarantor;
WHEREAS, certain of the Qualified Counterparties may enter into
Specified Hedge Agreements with the Borrower;
WHEREAS, the Borrower and the Guarantors are engaged in related
businesses, and the Borrower and each Guarantor will derive substantial direct
and indirect benefit from the extensions of credit under the Credit Agreement
and from the Specified Hedge Agreements; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective extensions of credit to the Borrower under the Credit
Agreement that the Borrower and the Guarantors shall have executed and delivered
this Agreement to the Administrative Agent;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower
thereunder, each of the Borrower and each Guarantor hereby agrees with the
Administrative Agent, for the benefit of the Guaranteed Parties, 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 are used herein as defined in the
New York UCC: Accounts, Certificated Security, Chattel Paper, Commercial Tort
Claims, Documents, Equipment, Farm Products, General Intangibles, Goods,
Instruments, Inventory, Letter-of-Credit Rights and Supporting Obligations.
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(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 Credit Agreement Obligations": the collective reference to
the unpaid principal of and interest on the Loans and Reimbursement Obligations
and 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, 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, or the other Loan Documents, or any Letter of
Credit, or any other document made, delivered or given in connection therewith,
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).
"Borrower Hedge Agreement Obligations": the collective reference to all
obligations and liabilities of the Borrower (including, without limitation,
interest accruing at the then applicable rate provided in any Specified Hedge
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 any Qualified Counterparty, 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, any Specified
Hedge Agreement or any other document made, delivered or given in connection
therewith, 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 relevant Qualified
Counterparty that are required to be paid by the Borrower pursuant to the terms
of any Specified Hedge Agreement).
"Borrower Obligations": the collective reference to (i) the Borrower
Credit Agreement Obligations, (ii) the Borrower Hedge Agreement Obligations, but
only to the extent that, and only so long as, the Borrower Credit Agreement
Obligations are secured and guaranteed pursuant hereto, and (iii) all other
obligations and liabilities of the Borrower, 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, this Agreement
(including, without limitation, all fees and disbursements of counsel to the
Administrative Agent or to the Guaranteed Parties that are required to be paid
by the Borrower pursuant to the terms of this Agreement).
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"Collateral": as defined in Section 3.
"Collateral Account": the collective reference to any collateral
account established by the Administrative Agent as provided in Section 6.1 or
6.4.
"Copyrights": (i) all copyrights arising under the laws of the United
States, 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.
"Deposit Account": as defined in the Uniform Commercial Code of any
applicable jurisdiction and, in any event, including, without limitation, any
demand, time, savings, passbook or like account maintained with a depositary
institution.
"Excluded Assets": the collective reference to (i) any contract,
General Intangible, Copyright License, Patent License or Trademark License
("Intangible Assets"), in each case to the extent the grant by the relevant
Grantor of a security interest pursuant to this Agreement in such Grantor's
right, title and interest in such Intangible Asset (A) is prohibited by legally
enforceable provisions of any contract, agreement, instrument or indenture
governing such Intangible Asset, (B) would give any other party to such
contract, agreement, instrument or indenture a legally enforceable right to
terminate its obligations thereunder or (C) is permitted only with the consent
of another party, if the requirement to obtain such consent is legally
enforceable and such consent has not been obtained; provided, that in any event
any Receivable or any money or other amounts due or to become due under any such
contract, agreement, instrument or indenture shall not be Excluded Assets to the
extent that any of the foregoing is (or if it contained a provision limiting the
transferability or pledge thereof would be) subject to Section 9-406 of the
New
York UCC, (ii) Retained Rights, (iii) Capital Stock excluded from the definition
of "Pledged Stock" set forth in this Section 1.1, (iv) at any time prior to the
effectiveness of an Optional Increase Amendment, any Receivable sold, pledged or
to be sold or pledged to Xxxxxxx Funding in connection with the Xxxxxxx Funding
Facility, (v) all Phase I Assets, (vi) promissory notes referred to in clause
(i) of the definition of "Pledged Notes" set forth in this Section 1.1 and (vii)
the Citation 2 corporate jet (N552BE).
"Foreign Subsidiary Voting Stock": the voting Capital Stock of any
Foreign Subsidiary.
"Governmental Receivable": any Receivable that, consistent with the
Borrower's past accounting practice, is initially classified as a Medicare
receivable, Medicaid receivable or other governmental Receivable.
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"Grantors": the collective reference to the Borrower and each Guarantor
that is not an Excluded Subsidiary of the Borrower.
"Guaranteed Parties": the collective reference to the Administrative
Agent, the Syndication Agent, the Lenders (including any Issuing Lender in its
capacity as Issuing Lender) and any Qualified Counterparties.
"Guarantor Obligations": with respect to any Guarantor, the collective
reference to all obligations and liabilities of such Guarantor which may arise
under or in connection with this Agreement (including, without limitation,
Section 2) or any other Loan Document to which such Guarantor is a party, in
each case whether on account of guarantee obligations, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative Agent or
to any Guaranteed Party that are required to be paid by such Guarantor pursuant
to the terms of this Agreement or any other Loan Document).
"Guarantors": as defined in the preamble hereto.
"Hedge Agreements": as to any Person, all interest rate swaps, currency
exchange agreements, commodity swaps, caps or collar agreements or similar
arrangements entered into by such Person providing for protection against
fluctuations in interest rates, currency exchange rates or commodity prices or
the exchange of nominal interest obligations, either generally or under specific
contingencies. For avoidance of doubt, Hedge Agreements shall include any
interest rate swap or similar agreement that provides for the payment by the
Borrower of amounts based upon a floating rate in exchange for receipt by the
Borrower of amounts based upon a fixed rate.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, arising under
United States laws, including, without limitation, the Copyrights, the Copyright
Licenses, the Patents, the Patent Licenses, the Trademarks and the Trademark
Licenses, and all rights to xxx at law or in equity for any infringement or
other impairment thereof, including the right to receive all proceeds and
damages therefrom.
"Intercompany Note": any promissory note evidencing loans made by any
Grantor to the Borrower or any of its Subsidiaries.
"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
(other than any Capital Stock excluded from the definition of "Pledged Stock" in
this Section 1.1) 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 any Investment
Property.
"
New York UCC": the Uniform Commercial Code as from time to time in
effect in the State of
New York.
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"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, 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 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": any written agreement 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 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), provided that (i) in no event
shall any promissory notes received by any Grantor in connection with a
Disposition permitted by Section 7.5(f) of the Credit Agreement, or any
promissory notes in existence on the Closing Date and listed on Schedule 7, be
required to be pledged hereunder and (ii) no Grantor shall be required to
deliver any promissory note received after the Closing Date and having a
principal amount of less than $5,000,000 to the Administrative Agent so long as
the aggregate principal amount of all such notes held by all the Grantors at
anytime does not exceed $35,000,000.
"Pledged Securities": the collective reference to the Pledged Notes and
the Pledged Stock.
"Pledged Stock": the shares of Capital Stock listed on Schedule 2,
together with any other shares, stock certificates, options or rights of any
nature whatsoever in respect of the Capital Stock of any Person that may be
issued or granted to, or held by, any Grantor while this Agreement is in effect;
provided that in no event shall more than 65% of the total outstanding Foreign
Subsidiary Voting Stock of any Foreign Subsidiary be required to be pledged
hereunder; provided, further, that in no event shall the Capital Stock of
Xxxxxxx Funding or Xxxxxxx Indemnity, Ltd. be required to be pledged hereunder.
"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, including, without limitation, all
dividends or other income from the Investment Property, collections thereon or
distributions or payments with respect thereto.
"Qualified Counterparty": with respect to any Specified Hedge
Agreement, any counterparty thereto that, at the time such Specified Hedge
Agreement was entered into, was a Lender or an affiliate of a Lender.
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"Receivable": any right to payment for goods sold, leased, licensed,
assigned or otherwise disposed of, 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).
"Retained Rights": with respect to any Governmental Receivable (except
to the extent the Obligor thereon may be required, pursuant to a court-ordered
assignment which is valid, binding and enforceable under applicable Medicare and
Medicaid laws, rules and regulations, to make payments directly to a Person
other than any applicable Grantor as the provider of the services giving rise
thereto), the rights of such applicable Grantor to collect and receive direct
payment from the Governmental Authority obligated in respect of such
Governmental Receivable and, as applicable, to enforce the claim giving rise
thereto against any federal Governmental Authority; provided, however, that even
in the absence of such a court-ordered assignment, the Retained Rights shall not
include the right of any applicable Grantor to retain the collections on any
Governmental Receivable once payment thereon has been made to such Grantor as
the provider of the services giving rise thereto or to a lockbox or lockbox or
similar account under Grantor's dominion and control.
"Secured Obligations": all Obligations to the Secured Parties.
"Secured Parties": the collective reference to the Administrative
Agent, the Syndication Agent, the Revolving Credit Lenders (including any
Issuing Lender in its capacity as Issuing Lender) and any Qualified
Counterparties.
"Securities Act": the Securities Act of 1933, as amended.
"Specified Hedge Agreement": any Hedge Agreement entered into by (i)
the Borrower and (ii) any Qualified Counterparty.
"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 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 written agreement 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.
"Vehicles": all cars, trucks, trailers, construction and earth moving
equipment and other vehicles covered by a certificate of title law of any state.
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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) The Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantee to the Administrative Agent, for the
ratable benefit of the Guaranteed Parties and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at 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 fraudulent
conveyances or transfers or 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 of such Guarantor contained in this
Section 2 or affecting the rights and remedies of the Administrative Agent or
any Guaranteed Party hereunder.
(d) Subject to Section 8.15 hereof, 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 full and final payment in cash,
no Letter of Credit shall be outstanding (other than any Letter of Credit in
respect of which the relevant Issuing Lender has received cash collateral or a
back-to-back letter of credit, in each case satisfactory to such Issuing Lender)
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 Guaranteed 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 under
this Section 2 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
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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 fully and finally paid in cash, no Letter of
Credit shall be outstanding (other than any Letter of Credit in respect of which
the relevant Issuing Lender has received cash collateral or a back-to-back
letter of credit, in each case satisfactory to such Issuing Lender) and the
Commitments are terminated.
2.2 Right of Contribution. (a) 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.
(b) Each Guarantor's right of contribution under this Section 2.2 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 Guaranteed Parties, and each
Guarantor shall remain liable to the Administrative Agent and the Guaranteed
Parties for the full amount guaranteed by such Guarantor hereunder.
2.3 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 Guaranteed Party, no Guarantor shall be entitled to
be subrogated to any of the rights of the Administrative Agent or any Guaranteed
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 Guaranteed
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 Guaranteed Parties
by the Borrower on account of the Borrower Obligations are fully and finally
paid in cash, no Letter of Credit shall be outstanding (other than any Letter of
Credit in respect of which the relevant Issuing Lender has received cash
collateral or a back-to-back letter of credit, in each case satisfactory to such
Issuing Lender) 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 fully and finally paid in cash,
such amount shall be held by such Guarantor in trust for the Administrative
Agent and the Guaranteed 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 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 Guaranteed Party may be
rescinded by the Administrative Agent or such Guaranteed 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
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Administrative Agent or any Guaranteed Party (with the consent of such of the
Borrower and the Guarantor as shall be required thereunder), and the Specified
Hedge Agreements, 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 (with the
consent of such of the Borrower and the Guarantor as shall be required
thereunder) 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
Guaranteed Party for the payment of the Borrower Obligations may (with the
consent of such of the Borrower and the Guarantor as shall be required
thereunder) be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Guaranteed Party shall, except to the extent set
forth in, and for the benefit of the parties to, the agreements and instruments
governing such Lien or guarantee, 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 guarantees 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 Guaranteed 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 Guaranteed 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 (other than any notice to the Borrower required under the Credit
Agreement). Each Guarantor understands and agrees that the guarantee of such
Guarantor contained in this Section 2 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (i) the
validity or enforceability of the Credit Agreement or any other Loan Document,
any of the Borrower Obligations or any 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 Guaranteed Party, (ii) 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 Guaranteed Party, or (iii) 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 of such Guarantor 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 Guaranteed 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 Guaranteed Party to make any such demand, to pursue
such other rights or
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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
under this Section 2, 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 Guaranteed 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
Guaranteed 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 by it
hereunder will be paid to the Administrative Agent without set-off or
counterclaim (a) in the case of obligations in respect of Borrower Obligations
arising under the Credit Agreement or any other Loan Document in Dollars at the
Payment Office specified in the Credit Agreement and (b) in the case of
obligations in respect of any Borrower Hedge Agreement Obligations, in the
currency and at the place specified in the applicable Specified Hedge Agreement.
2.8 Covenants in Credit Agreement. From and after the date of this
Agreement until the Obligations shall have been paid in full, no Letter of
Credit shall be outstanding (other than any Letter of Credit in respect of which
the relevant Issuing Lender has received cash collateral or a back-to-back
letter of credit, in each case satisfactory to such Issuing Lender) and the
Commitments shall have been terminated, each 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.
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 Secured Obligations:
(a) all Accounts;
(b) all Chattel Paper;
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(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Investment Property;
(k) all Letter-of-Credit Rights;
(l) all Commercial Tort Claims to the extent they have been
notified to the Administrative Agent pursuant to Section 5.9;
(m) all Goods and other property not otherwise described above;
(n) all books and records pertaining to the Collateral; and
(o) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing, all Supporting
Obligations in respect of any of the foregoing and all
collateral security and guarantees given by any Person with
respect to any of the foregoing;
provided that the Collateral shall not include any Excluded Assets.
Section 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the
Credit Agreement and to induce the Lenders to make their respective extensions
of credit to the Borrower thereunder, each Grantor and, with respect to Section
4.1 only, each Guarantor hereby represents and warrants to the Administrative
Agent, each Revolving Credit Lender and, with respect to Section 4.1 only, each
Term Loan Lender 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 Lender
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.
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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 (a) such as have been filed in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, pursuant
to this Agreement, (b) as are permitted by the Credit Agreement or (c) with
respect to Liens no longer in effect.
4.3 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement (a) upon completion of the filings and other actions
specified on Schedule 3 (which, in the case of all filings and other documents
referred to on said Schedule, have been delivered to the Administrative Agent in
completed and duly executed form) will constitute valid perfected security
interests in all of the Collateral in favor of the Administrative Agent, for the
ratable benefit of the Secured Parties, to the extent a security interest in the
Collateral may be perfected by (i) the filing of a financing statement under the
Uniform Commercial Code in effect in each Grantor's jurisdiction of
organization, (ii) in the case of Intellectual Property, filing with the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, or (iii) in the case of Pledged Securities, delivery of each
certificate or note, as applicable, evidencing such Pledged Securities, together
with an undated stock power for each such certificate and an undated endorsement
for each such note, in each case executed in blank by a duly authorized officer
of the applicable Grantor, to the Administrative Agent, as collateral security
for such Grantor's Secured Obligations, enforceable in accordance with the terms
hereof against all creditors of such Grantor and any Persons purporting to
purchase any Collateral from such Grantor and (b) are prior to all other Liens
on the Collateral in existence on the date hereof except for Liens permitted by
the Credit Agreement.
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 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 or, in the
case of Foreign Subsidiary Voting Stock, if less, 65% of the outstanding Foreign
Subsidiary Voting Stock of each relevant Issuer.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
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(c) Each of the Intercompany Notes that are Pledged Notes and, to the
knowledge of such Grantor, each of the other 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 except the security interest created by this Agreement.
4.8 Receivables. (a) No amount payable to such Grantor under or in
connection with any Receivable is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Administrative Agent to the extent required
by Section 5.1.
(b) 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 material
Intellectual Property owned by such Grantor in its own name on the date hereof.
(b) On the date hereof, all material Intellectual Property of such
Grantor described on Schedule 6 is valid, subsisting, unexpired and enforceable,
has not been abandoned and does not infringe the intellectual property rights of
any other Person, except to the extent that it could not reasonably be expected
to have a material adverse effect on the value of the Intellectual Property of
the Grantors, taken as a whole.
(c) Except as set forth in Schedule 6, on the date hereof, none of the
material 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 material 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 the Intellectual Property of the Grantors, taken
as a whole.
4.10 Vehicles. The aggregate book value of all Vehicles owned by all
Grantors is less than $5,000,000.
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Section 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent and the
Secured Parties that, from and after the date of this Agreement until the
Secured Obligations shall have been paid in full, no Letter of Credit shall be
outstanding (other than any Letter of Credit in respect of which the relevant
Issuing Lender has received cash collateral or a back-to-back letter of credit,
in each case satisfactory to such Issuing Lender) and the Revolving Credit
Commitments shall have terminated:
5.1 Delivery of Instruments and Chattel Paper. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument, Certificated Security or Chattel Paper, such Instrument,
Certificated Security or Chattel Paper shall be immediately delivered to the
Administrative Agent, duly indorsed in a manner satisfactory to the
Administrative Agent, to be held as Collateral pursuant to this Agreement;
provided, that the Grantors shall not be obligated to deliver to the
Administrative Agent any Instruments or Chattel Paper held by any Grantor at any
time having a face amount of less than $5,000,000 so long as the aggregate face
amount of all such Instruments and Chattel Paper held by all Grantors at such
time does not exceed $35,000,000.
5.2 Maintenance of Insurance. (a) Such Grantor will maintain, or cause
to be maintained, with financially sound and reputable companies, insurance
policies insuring the Inventory and Equipment in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies engaged in the same or a similar business (provided, that the
Grantors may self-insure to the extent they deem prudent).
(b) All such insurance shall (i) provide that no cancellation, material
reduction in amount or material change in coverage thereof shall be effective
until at least 30 days after receipt by the Administrative Agent of written
notice thereof, (ii) name the Administrative Agent as an additional insured or
loss payee, and be reasonably satisfactory in all other respects to the
Administrative Agent.
(c) Upon request of the Administrative Agent not more than once in any
fiscal year of the Borrower (or at any time if an Event of Default has occurred
and is continuing), the Borrower shall deliver to the Administrative Agent and
the Lenders that are Secured Parties a report of a reputable insurance broker
with respect to such insurance.
5.3 Payment of Obligations. Such Grantor will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all taxes, assessments and governmental charges or levies imposed
upon the Collateral or in respect of income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
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5.4 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
Lenders that are Secured Parties from time to time statements and schedules
further identifying and describing the assets and property of such Grantor and
such other reports in connection with the Collateral 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) the filing of any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby and
(ii) in the case of Investment Property, Deposit Accounts and Letter-of-Credit
Rights, taking any actions at any time after the occurrence and during the
continuance of an Event of Default necessary to enable the Administrative Agent
to obtain "control" (within the meaning of the applicable Uniform Commercial
Code) with respect thereto.
5.5 Changes in 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 to maintain the validity,
perfection and priority of the security interests provided for herein:
(a) change its jurisdiction of organization from that referred to
in Section 4.3; or
(b) change its name.
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 Pledged
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 Secured Parties, hold the same in trust for the Administrative
Agent and the 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 to be held by
the Administrative Agent, subject to the terms hereof, as additional collateral
security for the Secured 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
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for the Secured 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 Secured 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 Secured Parties, segregated from other funds of such Grantor, as
additional collateral security for the Secured Obligations. Notwithstanding the
foregoing, the Grantors shall not be required to pay over to the Administrative
Agent or deliver to the Administrative Agent as Collateral any proceeds of any
liquidation or dissolution of any Issuer, or any distribution of capital or
property in respect of any Investment Property, to the extent that (i) such
liquidation, dissolution or distribution, if treated as a Disposition of the
relevant Issuer, would be permitted by the Credit Agreement and (ii) the
proceeds thereof are applied toward prepayment of Loans and reduction of
Commitments to the extent required by the Credit Agreement.
(b) Without the prior written consent of the Administrative Agent, such
Grantor will not (i) vote to enable, or take any other action to permit, any
Issuer to issue any stock or other equity securities of any nature or to issue
any other securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of any Issuer,
unless such securities are delivered to the Administrative Agent, concurrently
with the issuance thereof, to be held by the Administrative Agent as Collateral,
(ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Investment Property or Proceeds thereof (except
pursuant to a transaction expressly permitted by the Credit Agreement), (iii)
create, incur or permit to exist any Lien or option in favor of, or any claim of
any Person with respect to, any of the 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 Pledged Securities 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 Pledged
Securities 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 5.6(a) with
respect to the Pledged Securities issued by it and (iii) the terms of Sections
6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to all actions
that may be required of it pursuant to Section 6.3(c) or 6.7 with respect to the
Pledged Securities issued by it.
(d) Each Guarantor that is an Issuer that is a partnership or a limited
liability company (i) confirms that none of the terms of any equity interest
issued by it provides that such equity interest is a "security" within the
meaning of Sections 8-102 and 8-103 of the
New York UCC (a "Security"), (ii)
agrees that it will take no action to cause or permit any such equity interest
to become a Security, (iii) agrees that it will not issue any certificate
representing any such equity interest and (iv) agrees that if, notwithstanding
the foregoing, any such equity
17
interest shall be or become a Security, such Issuer will (and the Grantor that
holds such equity interest hereby instructs such Issuer to) comply with
instructions originated by the Administrative Agent without further consent by
such Grantor.
5.7 Receivables. 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.
5.8 Intellectual Property. (a) Such Grantor will not do any act, or
omit to do any act, whereby any material Patent may become forfeited, abandoned
or dedicated to the public.
(b) Such Grantor (i) will employ each material Copyright and (ii) will
not 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 do any act whereby any material portion of the Copyrights may fall into the
public domain.
(c) Such Grantor will not do any act that knowingly uses any material
Intellectual Property to infringe the intellectual property rights of any other
Person.
(d) Such Grantor will notify the Administrative Agent and the Lenders
immediately if it knows 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) 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.
(e) Whenever such Grantor, either by itself or through any agent,
employee, licensee or designee, shall file an application for the registration
of any material Intellectual Property with the United States Patent and
Trademark Office or the United States Copyright Office, 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
Secured Parties' security interest in any Copyright, Patent or Trademark and the
goodwill and general intangibles of such Grantor relating thereto or represented
thereby.
(f) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office or the United States Copyright Office, to maintain and
pursue each application relating to any material Intellectual Property (and to
obtain the relevant registration) and to maintain each
18
registration of the material Intellectual Property, including, without
limitation, filing of applications for renewal, affidavits of use and affidavits
of incontestability.
(g) In the event that any material Intellectual Property is infringed,
misappropriated or diluted by a third party, such Grantor shall take such
actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property.
(h) Notwithstanding any other provision of this Agreement or any other
Loan Document, such Grantor may, in its sole discretion, forfeit, abandon,
dedicate to the public, cease maintenance of, or otherwise discontinue the
exercise of ownership and control of any Intellectual Property that it, in its
sole discretion, determines is no longer useful or necessary to its business.
5.9 Commercial Tort Claims. If any Grantor shall at any time commence a
suit, action or proceeding with respect to any Commercial Tort Claim held by it
with a value which such Grantor reasonably believes to be of $5,000,000 more,
such Grantor shall promptly notify the Administrative Agent thereof in a writing
signed by such Grantor and describing the details thereof and shall grant to the
Administrative Agent for the benefit of the Secured Parties in such writing a
security interest therein and in the proceeds thereof, all upon the terms of
this Agreement, with such writing to be in form and substance reasonably
satisfactory to the Administrative Agent.
Section 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) The Administrative
Agent shall have the right, at any time after the occurrence and during the
continuance of an Event of Default, to make test verifications of the
Receivables that constitute Collateral 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 after the occurrence and during the
continuance of an Event of Default, 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 (except in respect of any Receivable subject
to Retained Rights) to the Administrative Agent's direction and control after
the occurrence and during the continuance of an Event of Default, 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 (except in
respect of any Receivable subject to Retained Rights), 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 Administrative Agent for the account of the Secured
Parties only as provided in Section 6.5(a),
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and (ii) until so turned over, shall be held by such Grantor in trust for the
Administrative Agent and the 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 any time after the occurrence and during the continuance of an
Event of Default, 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.
(d) At any time after the occurrence and during the continuance of an
Event of Default, each Grantor will cooperate with the Administrative Agent to
establish a system of lockbox accounts, under the sole dominion and control of
the Administrative Agent, into which all Receivables (except in respect of any
Receivable subject to Retained Rights) shall be paid and from which all
collected funds will be transferred to a Collateral Account.
6.2 Communications with Obligors; Grantors Remain Liable. (a) At any
time after the occurrence and during the continuance of an Event of Default, the
Administrative Agent in its own name or in the name of others may at any time
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 (except where such Receivables are subject to
Retained Rights) that such 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 (or any agreement giving rise
thereto) 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 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 Secured Party of any payment
relating thereto, nor shall the Administrative Agent or any 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),
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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 to the
extent permitted by the Credit Agreement, and to exercise all voting and
corporate rights with respect to the Pledged Securities; provided, however, that
no vote shall be cast or corporate right exercised or other action taken which,
in the Administrative Agent's reasonable judgment, would impair the Collateral
or which would be inconsistent with or result 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 Pledged Securities and make application thereof to the Secured
Obligations in the order set forth in Section 6.5(a), and (ii) any or all of the
Pledged Securities 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 Pledged
Securities at any meeting of shareholders of the relevant Issuer or Issuers or
otherwise and (y) any and all rights of conversion, exchange and subscription
and any other rights, privileges or options pertaining to such Pledged
Securities as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Pledged
Securities upon the merger, consolidation, reorganization, recapitalization or
other fundamental change in the corporate structure of any Issuer, or upon the
exercise by any Grantor or the Administrative Agent of any right, privilege or
option pertaining to such Pledged Securities, and in connection therewith, the
right to deposit and deliver any and all of the Pledged Securities with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and 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
Pledged Securities 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
Pledged Securities 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 Secured Parties specified in
Section 6.1 with respect to Receivables, if an Event of Default shall occur and
be continuing, all Proceeds received by any Grantor (other than in respect of
Governmental Receivables) consisting of cash, checks and Instruments shall be
held by such Grantor in trust for the Administrative Agent and the 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 such Proceeds received by the
Administrative Agent hereunder shall be held by the Administrative Agent in a
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Collateral Account maintained under its sole dominion and control. All such
Proceeds while held by the Administrative Agent in such a Collateral Account (or
by such Grantor in trust for the Administrative Agent and the Secured Parties)
shall continue to be held as collateral security for all the Secured Obligations
and shall not constitute payment thereof until applied as provided in Section
6.5(a).
6.5 Application of Proceeds. (a) 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 shall apply all or any part of Proceeds
constituting Collateral, whether or not held in any Collateral Account, in
payment of the Secured 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 Secured Obligations, pro rata among the Secured Parties
according to the amounts of the Secured 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 Secured Obligations, pro rata among the
Secured Parties according to the amounts of the Secured Obligations
then held by the Secured Parties; and
Fourth, any balance of such Proceeds remaining after the
Secured Obligations shall have been paid in full, no Letters of Credit
shall be outstanding (other than any Letter of Credit in respect of
which the relevant Issuing Lender has received cash collateral or a
back-to-back letter of credit, in each case satisfactory to such
Issuing Lender) and the Revolving Credit Commitments shall have
terminated shall be paid over to the Borrower or to whomsoever may be
lawfully entitled to receive the same.
(b) 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 shall apply all or any part of 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 Guaranteed Parties
according to the amounts of the Obligations then due and owing and
remaining unpaid to the Guaranteed Parties;
Third, to the Administrative Agent, for application by it
towards prepayment of the Obligations, pro rata among the Guaranteed
Parties according to the amounts of the Obligations then held by the
Guaranteed Parties; and
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Fourth, any balance of such proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding (other than any Letter of Credit in respect of which the
relevant Issuing Lender has received cash collateral or a back-to-back
letter of credit, in each case satisfactory to such Issuing Lender) 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 Secured 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, if an Event of Default shall occur and be
continuing, 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
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 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 Section 6.6 with respect to
any Grantor's Collateral, 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 of such Grantor or in any way relating to
the Collateral of such Grantor or the rights of the Administrative Agent and the
Secured Parties hereunder with respect thereto, including, without limitation,
reasonable attorneys' fees and disbursements, to the payment in whole or in part
of the Secured Obligations of such Grantor, in the order specified in Section
6.5(a), 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 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.
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6.7 Registration Rights. (a) If, after the occurrence and during the
continuance of an Event of Default, 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 any such private sale shall be
deemed to have been made in a commercially reasonable manner. 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.
(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 Secured Parties, that the Administrative Agent and the 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.
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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 Secured Obligations and the fees and disbursements of any attorneys
employed by the Administrative Agent or any 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 (except where such Receivable is subject to Retained
Rights) or 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
(except where such Receivable is subject to Retained Rights) 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 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;
(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;
(v) (1) direct any party liable for any payment under any of
the Collateral (except in respect of any Receivable subject to Retained
Rights) 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; (2) 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 (except in respect of
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any Receivable subject to Retained Rights); (3) 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
(except in respect of any Receivable subject to Retained Rights); (4)
commence and prosecute any suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect the Collateral
(except in respect of any Receivable subject to Retained Rights) or any
portion thereof and to enforce any other right in respect of any
Collateral (except in respect of any Receivable subject to Retained
Rights); (5) defend any suit, action or proceeding brought against such
Grantor with respect to any Collateral; (6) 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; (7) 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 (8) generally, sell,
transfer, pledge and make any agreement with respect to or otherwise
deal with any of the Collateral (except in respect of any Receivable
subject to Retained Rights) 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 (except in respect of any Receivable
subject to Retained Rights) and the Administrative Agent's and the
Secured Parties' security interests therein and to effect the intent of
this Agreement, all as fully and effectively as such Grantor might do;
and
(vi) license or sublicense whether on an exclusive or
non-exclusive basis, any Intellectual Property for such term and on
such conditions and in such manner as the Administrative Agent shall in
its sole judgment determine and, in connection therewith, such Grantor
hereby grants to the Administrative Agent for the benefit of the
Secured Parties a royalty-free, world-wide irrevocable license of its
Intellectual Property.
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.
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(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 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 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 Secured Parties hereunder are
solely to protect the Administrative Agent's and the Secured Parties' interests
in the Collateral and shall not impose any duty upon the Administrative Agent or
any Secured Party to exercise any such powers. The Administrative Agent and the
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 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, subject to such exceptions thereto as are agreed by the
Debtor and the Secured Party" or "all assets, subject to such exceptions thereto
as are agreed by the Debtor and the Secured Party" 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
Guaranteed Parties (including the 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 Guaranteed Parties (including 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. Notwithstanding any other provision herein or in any Loan Document,
the only duty or responsibility of the Administrative Agent to any Qualified
Counterparty under this Agreement
27
is the duty to remit to such Qualified Counterparty any amounts to which it is
entitled pursuant to Section 6.5.
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 Section 10.1 of the Credit Agreement. No consent of any
Qualified Counterparty shall be required for any waiver, amendment, supplement
or other modification to this Agreement.
8.2 Notices. All notices, requests and demands to or upon the
Administrative Agent, the Borrower or any Guarantor hereunder shall be effected
in the manner provided for in Section 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 Guaranteed 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 Guaranteed
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 Guaranteed 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 Guaranteed 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 Guaranteed Party and the Administrative Agent for, all
its costs and expenses incurred in collecting against such Guarantor under the
guarantee contained in Section 2 or otherwise enforcing or preserving any rights
under this Agreement and the other Loan Documents to which such Guarantor is a
party, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and expenses of in house counsel) to each
Guaranteed Party and of counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative Agent
and the Guaranteed 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 Guaranteed Parties harmless from, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature
28
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 Section 10.5 of the Credit Agreement.
(d) The agreements in this Section 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 the Borrower and each Guarantor and shall inure to the
benefit of the Administrative Agent and the Guaranteed Parties and their
successors and assigns; provided that neither the Borrower nor any Guarantor may
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 Secured Party at any time and from time to time,
without notice to such Grantor or any other Grantor, any such notice being
expressly waived by each Grantor, to set-off and appropriate and apply any and
all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Administrative Agent or such 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 Secured Party may elect,
against and on account of the obligations and liabilities of such Grantor to the
Administrative Agent or such Secured Party hereunder and claims of every nature
and description of the Administrative Agent or such 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
Secured Party may elect, whether or not the Administrative Agent or any 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
Secured Party shall notify such Grantor promptly of any such set-off and the
application made by the Administrative Agent or such 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 Secured Party under this Section are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which the
Administrative Agent or such 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.
29
8.10 Integration. This Agreement and the other Loan Documents represent
the agreement of the Borrower, the Guarantors, the Administrative Agent and the
Guaranteed 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 Guaranteed Party relative to subject matter hereof
and thereof not expressly set forth or referred to herein or in the other Loan
Documents.
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 of the Borrower and each
Guarantor 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 the Borrower or such
Guarantor, as applicable, 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 of the Borrower and each Guarantor 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 Guaranteed Party has any
fiduciary relationship with or duty to the Borrower or any Guarantor arising out
of or in connection with this Agreement or any of the other Loan Documents, and
the relationship between the Borrower and the Guarantors, on the one hand, and
the Administrative Agent and
30
Guaranteed 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
Guaranteed Parties or among the Borrower, the Guarantors and the Guaranteed
Parties.
8.14 Additional Guarantors and Grantors. Each Subsidiary of the
Borrower that is required to become a party to this Agreement pursuant to
Section 6.9 of the Credit Agreement shall become a Guarantor and 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.
8.15 Releases. (a) At such time as the Loans, the Reimbursement
Obligations and the other Obligations (other than Borrower Hedge Agreement
Obligations) shall have been paid in full, the Commitments have been terminated
and no Letters of Credit shall be outstanding (other than any Letter of Credit
in respect of which the relevant Issuing Lender has received cash collateral or
a back-to-back letter of credit, in each case satisfactory to such Issuing
Lender), 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, the Borrower and each Guarantor
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 such time as the Revolving Credit Loans, the Reimbursement
Obligations and the other Secured Obligations (other than Borrower Hedge
Agreement Obligations) shall have been paid in full, the Revolving Credit
Commitments have been terminated and no Letters of Credit shall be outstanding
(other than any Letter of Credit in respect of which the relevant Issuing Lender
has received cash collateral or a back-to-back letter of credit, in each case
satisfactory to such Issuing Lender), the Collateral shall be released from the
Liens created hereby, and this Agreement and all obligations (other than the
guarantees contained in Section 2 and 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 or
release, 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 five 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
31
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.
(c) Upon request of the Borrower in connection with any redemption or
repayment in full of all outstanding Senior Notes, the Administrative Agent
shall take such actions as shall be required to release, on or after the
consummation of such redemption or repayment, from its obligations hereunder any
Subsidiary Guarantor that (i) immediately prior to such redemption or repayment,
was a guarantor of the Senior Notes, (ii) immediately after giving effect to
such redemption or repayment, does not have any Guarantee Obligations in respect
of any Indebtedness that redeemed, refinanced, refunded, renewed, extended or
otherwise replaced such Senior Notes and (iii) is an Excluded Subsidiary.
(d) No consent of any Qualified Counterparty shall be required for any
release of Collateral or Guarantors pursuant to this Section.
8.16 WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND EACH GUARANTOR AND,
BY ACCEPTANCE OF THE BENEFITS HEREOF, EACH AGENT AND EACH GUARANTEED PARTY,
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.
32
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.
XXXXXXX ENTERPRISES, INC.
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------
Title: Senior Vice President & Treasurer
GRANTORS (OTHER THAN THE BORROWER)
AEGIS THERAPIES, INC.
AEGIS THERAPIES - FLORIDA, INC.
AEGIS THERAPIES - WISCONSIN, INC.
XXXXXXX ENTERPRISES - ALABAMA, INC.
XXXXXXX ENTERPRISES - ARIZONA, INC.
XXXXXXX ENTERPRISES - ARKANSAS, INC.
XXXXXXX ENTERPRISES - FLORIDA, INC.
XXXXXXX ENTERPRISES - GARDEN TERRACE, INC.
XXXXXXX ENTERPRISES - GEORGIA, INC.
XXXXXXX ENTERPRISES - ILLINOIS, INC.
XXXXXXX ENTERPRISES - INDIANA, INC.
XXXXXXX ENTERPRISES - KENTUCKY, INC.
XXXXXXX ENTERPRISES - MARYLAND, INC.
XXXXXXX ENTERPRISES - MASSACHUSETTS, INC.
XXXXXXX ENTERPRISES - MISSISSIPPI, INC.
XXXXXXX ENTERPRISES - MISSOURI, INC.
XXXXXXX ENTERPRISES - NEBRASKA, INC.
XXXXXXX ENTERPRISES - NEW JERSEY, INC.
XXXXXXX ENTERPRISES - NORTH CAROLINA, INC.
XXXXXXX ENTERPRISES - OHIO, INC.
XXXXXXX ENTERPRISES - PENNSYLVANIA, INC.
XXXXXXX ENTERPRISES - SOUTH CAROLINA, INC.
XXXXXXX ENTERPRISES - TENNESSEE, INC.
XXXXXXX ENTERPRISES - VIRGINIA, INC.
XXXXXXX ENTERPRISES - WASHINGTON, INC.
XXXXXXX ENTERPRISES - WEST VIRGINIA, INC.
XXXXXXX ENTERPRISES - WISCONSIN, INC.
XXXXXXX HEALTH AND REHABILITATION SERVICES, INC.
COMMERCIAL MANAGEMENT, INC.
COMMUNITY CARE, INC.
COMPASSION & PERSONAL CARE SERVICES, INC.
HOMECARE PREFERRED CHOICE, INC.
HOSPICE PREFERRED CHOICE, INC.
MATRIX OCCUPATIONAL HEALTH, INC.
MEDICAL ARTS HEALTH FACILITY OF LAWRENCEVILLE, INC.
MODERNCARE OF LUMBERTON, INC.
NEBRASKA CITY S-C-H, INC.
NURSING HOME OPERATORS, INC.
SOUTH DAKOTA - XXXXXXX ENTERPRISES, INC.
TMD DISPOSITION COMPANY
VANTAGE HEALTHCARE CORPORATION
By: /s/ XXXXXX XXXXX
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
GUARANTORS (OTHER THAN THE GRANTORS)
4F FUNDING, INC.
AGI - CAMELOT, INC.
XXXXXXX - XXXXX VISTA HOLDING, INC.
XXXXXXX - MISSOURI VALLEY HOLDING, INC.
XXXXXXX - RAPID CITY HOLDING, INC.
XXXXXXX ENTERPRISES - CALIFORNIA INC.
XXXXXXX ENTERPRISES - DELAWARE, INC.
XXXXXXX ENTERPRISES - DISTRICT OF COLUMBIA, INC.
XXXXXXX ENTERPRISES - HAWAII, INC.
XXXXXXX ENTERPRISES - OREGON, INC.
XXXXXXX ENTERPRISES - TEXAS, INC.
XXXXXXX ENTERPRISES INTERNATIONAL LIMITED
XXXXXXX HEALTHCARE - CALIFORNIA, INC.
XXXXXXX MANOR INC. OF HAWAII
XXXXXXX SAVANA CAY MANOR, INC.
CERES STRATEGIES, INC.
EASTERN HOME HEALTH SUPPLY & EQUIPMENT CO., INC.
HALLMARK CONVALESCENT HOMES, INC.
HOSPICE OF EASTERN CAROLINA, INC.
LIBERTY NURSING HOMES, INCORPORATED
XXXXXXXX HEALTH CARE, INC.
SOUTH ALABAMA NURSING HOME, INC.
SPECTRA HEALTHCARE ALLIANCE, INC.
TAR HEEL INFUSION COMPANY, INC.
By: /s/ XXXXXX XXXXX
-----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
CERES SELECT, LLC
CERES STRATEGIES MEDICAL SERVICES, LLC
By: /s/ XXXXXX XXXXX
-----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
AEDON STAFFING, LLC
By: SPECTRA HEALTHCARE ALLIANCE, INC., its sole
member
By: /s/ XXXXXX XXXXX
-----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
XXXXXXX INDIANAPOLIS, LLC
By: XXXXXXX HEALTHCARE LLC
By: XXXXXXX ENTERPRISES - INDIANA, INC. its member
By: /s/ XXXXXX XXXXX
-----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
By: VANTAGE HEALTHCARE CORPORATION, its member
By: /s/ XXXXXX XXXXX
-----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
XXXXX CARE RESOURCE, LLC
By: BEVRD, LLC., its sole member
By: XXXXXXX ENTERPRISES, INC., its sole member
By: /s/ XXXXXX XXXXX
-----------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Annex I
to
Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of ________________, 200__,
made by ______________________________, a ______________ corporation (the
"Additional Grantor"), in favor of XXXXXX COMMERCIAL PAPER INC., 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, Xxxxxxx Enterprises, Inc. (the "Borrower"), the
Lenders and the Administrative Agent have entered into a Credit Agreement, dated
as of October 22, 2003 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the Borrower
and certain of its Affiliates (other than the Additional Grantor) have entered
into the
Guarantee and Collateral Agreement, dated as of October 22, 2003 (as
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 Lenders;
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 8.14 of the Guarantee and Collateral Agreement, hereby becomes a party
to the Guarantee and Collateral Agreement as a Guarantor and a Grantor
thereunder with the same force and effect as if originally named therein as a
Guarantor and a Grantor and, without limiting the generality of the foregoing,
hereby expressly assumes all obligations and liabilities of a Guarantor and a
Grantor thereunder. The information set forth in Annex 1-A hereto is hereby
added to the information set forth in Schedules [_________] 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 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:
Annex II
to the
Guarantee and Collateral Agreement
FORM OF GRANT OF
SECURITY INTEREST IN TRADEMARK RIGHTS
THIS GRANT OF SECURITY INTEREST IN TRADEMARK RIGHTS
("Agreement"), dated as of October 22, 2003 is made by [XXXXXXX ENTERPRISES,
INC.], a [Delaware] corporation (the "[Obligor/Borrower]"), in favor of XXXXXX
COMMERCIAL PAPER INC., as Administrative Agent (the "Administrative Agent") for
the several banks and other financial institutions (the "Lenders"), parties to
the Credit Agreement, dated as of October 22, 2003 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among [the
Borrower] [Xxxxxxx Enterprises, Inc., a Delaware corporation (the "Borrower")],
the Lenders, the Administrative Agent, and the other Agents parties thereto.
Capitalized terms not defined herein shall have the meanings ascribed to them in
the Credit Agreement.
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Loans and other extensions of credit to the Borrower
upon the terms and subject to the conditions set forth therein;
WHEREAS, in connection with the Credit Agreement, [the
Obligor, the Borrower and certain other subsidiaries of the Borrower have / the
Borrower and certain of its Subsidiaries have] executed and delivered a
Guarantee and Collateral Agreement, dated as of October 22, 2003, in favor of
the Administrative Agent (together with all amendments and modifications, if
any, from time to time thereafter made thereto, the "Guarantee and Collateral
Agreement");
WHEREAS, pursuant to the Guarantee and Collateral Agreement,
the [Obligor/Borrower] pledged and granted to the Administrative Agent for the
benefit of the Administrative Agent and the other Secured Parties referred to
therein a continuing security interest in all Intellectual Property, including
the Trademarks; and
WHEREAS, the [Obligor/Borrower] has duly authorized the
execution, delivery and performance of this Agreement;
NOW THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, and in order to induce the Revolving
Credit Lenders to make Revolving Credit Loans and other financial accommodations
to the Borrower pursuant to the Credit Agreement, the [Obligor/Borrower] agrees,
for the benefit of the Agents and the other Secured Parties, as follows:
SECTION 1. Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Agreement, including its preamble
and recitals, have the meanings provided or provided by reference in the Credit
Agreement and the Guarantee and Collateral Agreement.
SECTION 2. Grant of Security Interest. The [Obligor/Borrower]
hereby pledges and grants a continuing security interest in, and a right of
setoff against, and effective upon demand made upon the occurrence and during
the continuance of an Event of Default assigns, transfers and conveys, the
Trademarks (including, without limitation, those items listed on Schedule A
hereto), to the Administrative Agent for the benefit of the Administrative Agent
and the other Secured Parties to secure payment, performance and observance of
[such obligor's] [the Borrower's] Secured Obligations.
SECTION 3. Purpose. This Agreement has been executed and
delivered by the [Obligor/Borrower] for the purpose of recording the grant of
security interest herein with the United States Patent and Trademark Office. The
security interest granted hereby has been granted to the Administrative Agent
for the benefit of the Secured Parties in connection with the Guarantee and
Collateral Agreement and is expressly subject to the terms and conditions
thereof. The Guarantee and Collateral Agreement (and all rights and remedies of
the Secured Parties thereunder) shall remain in full force and effect in
accordance with its terms.
SECTION 4. Acknowledgment. The [Obligor/Borrower] does hereby
further acknowledge and affirm that the rights and remedies of the Secured
Parties with respect to the security interest in the Trademarks granted hereby
are more fully set forth in and the Guarantee and Collateral Agreement, the
terms and provisions of which (including the remedies provided for therein) are
incorporated by reference herein as if fully set forth herein.
SECTION 5. Counterparts. This Agreement may be executed in
counterparts, each of which will be deemed an original, but all of which
together constitute one and the same original.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
[NAME OF OBLIGOR/BORROWER]
By:
------------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC., as
Administrative Agent
By:
------------------------------------
Name:
Title:
STATE OF )
) ss
COUNTY OF )
On the ____ day of __________, 20__, before me personally came
___________________, who is personally known to me to be the ___________________
of [name of Obligor/name of Borrower], a [state] [form of entity]; who, being
duly sworn, did depose and say that she/he is the _______________________in such
[form of entity], the [form of entity] described in and which executed the
foregoing instrument; that she/he executed and delivered said instrument
pursuant to authority given by the [governing body of entity -- ie, Board of
Directors] of such [form of entity]; and that she/he acknowledged said
instrument to be the free act and deed of said [form of entity].
-------------------------------------
Notary Public
(PLACE STAMP AND SEAL ABOVE)
STATE OF )
) ss
COUNTY OF )
On the ____ day of __________, 20__, before me personally came
___________________, who is personally known to me to be the ___________________
of Xxxxxx Commercial Paper Inc., who, being duly sworn, did depose and say that
she/he is the _______________________in such corporation, the corporation
described in and which executed the foregoing instrument; that she/he executed
and delivered said instrument pursuant to authority given by the Board of
Directors of such corporation; and that she/he acknowledged said instrument to
be the free act and deed of said corporation.
-------------------------------------
Notary Public
(PLACE STAMP AND SEAL ABOVE)
SCHEDULE A
U.S. TRADEMARKS REGISTRATIONS AND APPLICATIONS
TRADEMARK REGISTRATION OR SERIAL NUMBER
--------- -----------------------------
