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EXHIBIT 10.7
COLLATERAL SECURITY AGREEMENT
THIS COLLATERAL SECURITY AGREEMENT, dated as of June 29, 2001 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, this "Agreement"), is made by WESTPOINT XXXXXXX INC., a Delaware
corporation (the "Borrower"), and each of the Subsidiaries of the Borrower
listed on the signature pages hereto (the "Borrower Subsidiaries" and, together
with the Borrower, the "Grantors"), in favor of BANKERS TRUST COMPANY, in its
capacity as administrative agent (in such capacity, and together with any
successors in such capacity, the "Administrative Agent") for the lending
institutions (the "Lenders") from time to time party to the Credit Agreement (as
hereinafter defined).
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
contemporaneously with the execution and delivery of this Agreement entered into
that certain Credit Agreement dated as of June 29, 2001 (as amended, amended and
restated, supplemented or otherwise modified hereafter from time to time, the
"Credit Agreement"), pursuant to which the Lenders have agreed to make to or for
the account of the Borrower a Loan (as defined in the Credit Agreement);
WHEREAS, the Administrative Agent and the Lenders have required, as a
condition, among others, to the making of the Loan, that the Grantors execute
and deliver this Agreement to the Administrative Agent; and
WHEREAS, this Agreement is given by the Grantors in favor of the
Administrative Agent for its benefit and for the benefit of the Lenders
(collectively, the "Secured Parties") to secure the payment and performance of
all of the Secured Debt.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1
DEFINITIONS
SECTION 1.1 Definitions.
(a) As used in this Agreement, including the introductory
provisions hereof, the following terms shall have the following meanings:
"Additional Collateral Documents" means all stock pledge
agreements, security agreements, mortgages (including leasehold
mortgages), guaranties, Uniform Commercial
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Code financing statements, in lieu financing statements under Revised
Article 9 of the Uniform Commercial Code, continuation statements (or
similar statements or instruments of registration under the law of any
jurisdiction) and other documents executed and/or delivered by any
Grantor after the date hereof, pursuant to Section 2.2 or 2.3(a) of
this Agreement in favor of the Administrative Agent, as the same may be
amended, amended and restated, supplemented or otherwise modified from
time to time in accordance with their respective terms and with the
terms hereof.
"Additional Grantor Collateral" has the meaning given to such
term in Section 2.2 of this Agreement.
"Additional Grantors" has the meaning given to such term in
Section 2.2 of this Agreement.
"Administrative Agent" has the meaning given to such term in
the introduction to this Agreement.
"Administrative Agent's Fees" means all fees, costs, expenses
and other claims of the Administrative Agent of the types described in
Sections 8.2, 8.3, 8.4 and 8.5 of this Agreement.
"Agreement" has the meaning given to such term in the
introduction hereto.
"Authorized Officer" means the President or any Vice President
of a Grantor or any of its Subsidiaries.
"Bankruptcy Code" means Title 11 of the United States Code, 11
U.S.C. et seq., as the same may be amended from time to time, and any
successor statute thereto.
"Borrower" has the meaning given to such term in the
introduction to this Agreement.
"Borrower Subsidiaries" has the meaning given to such term in
the introduction to this Agreement.
"Business Day" means a day which is not a Saturday, Sunday or
any other day on which the Administrative Agent is not open for
business.
"Collateral" means all property in which the Administrative
Agent has, or purportedly has, an interest (including, without
limitation, a Lien) from time to time under this Agreement or one or
more of the other Collateral Documents including, without limitation,
the Grantor Collateral and the Additional Grantor Collateral.
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"Collateral Account" has the meaning given to such term in
Section 7.1 of this Agreement.
"Collateral Documents" means the Initial Collateral Documents
and the Additional Collateral Documents.
"Consolidated Net Tangible Assets" means the total of all the
assets appearing on the consolidated balance sheet of the Borrower and
its Subsidiaries, less the following:
(1) current liabilities, including liabilities
for indebtedness maturing more than 12 months from the date of
the original creation thereof but maturing within 12 months
from the date of determination;
(2) reserves for depreciation and other asset
valuation reserves;
(3) intangible assets including, but without
limitation, such items as goodwill, trademarks, trade names,
patents and unamortized debt discount and expense carried as
an asset on said balance sheet; and
(4) appropriate adjustments on account of
minority interests of other persons holding stock in any
Subsidiary of the Borrower.
Consolidated Net Tangible Assets shall be determined in accordance with
generally accepted accounting principles and practices applicable to
the type of business in which the Borrower and its Subsidiaries are
engaged and which are approved by the independent accountants regularly
retained by the Borrower, and may be determined as of a date not more
than 60 days prior to the happening of the event for which such
determination is being made.
"Contaminants" means those substances which are regulated by
or form the basis of liability under any Environmental Law, including
asbestos, polychlorinated biphenyls, Hazardous Materials, pollutants or
solid wastes.
"Credit Agreement" has the meaning given to such term in the
recitals to this Agreement.
"Debt Instruments" means the Credit Agreement, any notes
issued pursuant thereto and the other agreements, documents and
instruments executed in connection therewith, and any amendments or
restatements thereof, including, without limitation, the Guaranties.
"Discharge Notice" means a written notice, signed by an
Authorized Officer of the Borrower, which requests a discharge of the
Collateral Documents in accordance
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with the provisions of Section 10.1 of this Agreement and
which certifies to the Administrative Agent and the Secured
Parties that:
(i) one of the events enumerated in
Section 10.1 of this Agreement has occurred
(specifying which event), and
(ii) no Grantor Default shall exist
after, or as a result of, the release of the
Collateral.
"Domestic Subsidiary" means a Subsidiary of the Borrower
except a Subsidiary (a) which neither transacts any substantial portion
of its business nor regularly maintains any substantial portion of its
fixed assets within the States of the United States, or (b) which is
engaged primarily in financing the operations of the Borrower or its
Subsidiaries, or both, outside the States of the United States.
"Event of Default" means an "Event of Default" as defined in
the Credit Agreement .
"Excluded Property" means (i) any real or personal property on
which a Lien may not be granted to secure the Secured Debt pursuant to
the terms of Industrial Revenue Bonds and Industrial Development Bonds
permitted by the Credit Agreement, (ii) any other property or interest
leased or licensed to a Grantor with respect to which a Lien may not be
granted to secure the Secured Debt pursuant to terms of the applicable
lease agreement or license agreement, unless any consents required to
permit such Lien have been obtained, (iii) the real property identified
on Schedule A hereto, (iv) the capital stock of the Inactive
Subsidiaries, (v) all Receivables of the Borrower and its Subsidiaries
(other than the Permitted Receivables), whether now owned or hereafter
acquired, as well as any related assets (including (a) all of the
applicable seller's right, title and interest in and to the goods
(including returned goods), if any, relating to the sale which gave
rise to each Receivable that is, or is purported to be, sold, assigned,
transferred, contributed or otherwise disposed of to Xxxxx pursuant to
the Permitted Receivables Financing, (b) all other security interests
or liens and property subject thereto from time to time purporting to
secure payment of each such Receivable, (c) all letters of credit,
guaranties and other agreements or arrangements of whatever character
from time to time supporting or securing payment of each such
Receivable and (d) all proceeds of each such Receivable and of the
foregoing and all insurance payments that the seller or servicer of
such Receivable applies in the ordinary course of business to amounts
owed in respect of any such Receivable) sold, assigned, transferred,
contributed or otherwise disposed of to Xxxxx pursuant to the Permitted
Receivables Financing, (vi) Inventory, to the extent an invoice has
been sent to the purchaser thereof or such Inventory has otherwise been
sold, (vii) the Xxxxx Notes, and (viii) any patents or trademarks which
have been abandoned by any Grantor as of June 9, 1998 or which were in
the process of being sold by any Grantor as of such date.
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"Xxxxx" means WPS Receivables Corporation, a Delaware
corporation, and any Subsidiaries of WPS Receivables Corporation which
purchase Transferred Assets (as well as any related assets) from Xxxxx
pursuant to the Permitted Receivables Financing.
"Xxxxx Notes" means the promissory notes issued by Xxxxx to
the Borrower and any of the Borrower's Subsidiaries as consideration
for Transferred Assets and any amendment or restatement thereof on
substantially similar terms for a period of one to five years.
"First Lien Indebtedness" has the meaning given to such term
in the Intercreditor Agreement.
"Foreign Subsidiary" has the meaning given to such term in the
Credit Agreement.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Grantor Collateral" has the meaning given to such term in
Section 2.1 of this Agreement.
"Grantor Default" means a default, event of default or
unmatured event of default as defined in any Debt Instrument or any
Collateral Document.
"Grantors" has the meaning given to such term in the
introduction to this Agreement and shall include any Additional
Grantors that become a party to this Agreement pursuant to Section 2.2.
"Guaranties" means the guaranties of each of the Grantors
identified on Schedule B hereto and the guaranty(ies) of any Additional
Grantor(s), substantially in the form of Exhibit A hereto, as the same
may be amended, amended and restated, supplemented or otherwise
modified from time to time in accordance with the terms thereof and
hereof.
"Inactive Subsidiary" means "Inactive Subsidiary" as defined
in the Credit Agreement and "Inactive Subsidiaries" means all Inactive
Subsidiaries, collectively.
"Initial Collateral Documents" means this Agreement, the
Guaranties identified on Schedule B hereto, the Stock Pledge Agreements
identified on Schedule C hereto and all security agreements, mortgages
(including leasehold mortgages) and other collateral or related
documents executed and/or delivered by the Grantors prior to or on the
date hereof in favor of the Administrative Agent, as the same may be
amended,
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supplemented or otherwise modified in accordance with their respective
terms and with the terms hereof.
"Intercreditor Agreement" means that certain Intercreditor
Agreement and Lien Subordination Agreement by and among the Grantors,
the Senior Collateral Trustee and the Administrative Agent dated as of
the date hereof, as the same may be amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with
the terms thereof.
"Inventory" shall mean, inclusively, all goods, merchandise
and other personal property, wherever located, now owned or hereafter
acquired by a Grantor of every kind or description which are held for
sale or lease or are furnished or to be furnished under a contract of
service or are raw materials, work-in-process or materials used or
consumed or are to be used or consumed in such Grantor's business.
"Lenders" has the meaning given to such term in the
introduction to this Agreement.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to
give any of the foregoing, any conditional sale or other title
retention agreement or any lease in the nature thereof).
"Loan" has the meaning ascribed to such term in the recitals
to this Agreement.
"Permitted Investments" has the meaning ascribed to such term
in the Credit Agreement.
"Permitted Receivables" means all Receivables of each of the
Grantors other than the Transferred Assets.
"Permitted Receivables Financing" has the meaning ascribed to
such term in the Credit Agreement.
"Person" means an individual or a corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint
stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Pledged Stock" means, collectively, "Pledged Shares" as
defined in each of the Stock Pledge Agreements and any other shares of
capital stock pledged pursuant to the Collateral Documents.
"Principal Domestic Manufacturing Property" means any
building, structure or other facility, together with the land upon
which it is erected and fixtures comprising a part thereof, used
primarily for manufacturing or processing and located in the United
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States, owned or leased by the Borrower or any Subsidiary of the
Borrower, the gross book value (without deduction of any depreciation
reserves) of which on the date as of which the determination is being
made exceeds 3/4 of 1% of Consolidated Net Tangible Assets, other than
any such building, structure or other facility or portion thereof (i)
which is a pollution control or other facility financed by obligations
issued by a State or local governmental unit pursuant to Section
103(b)(4)(E), 103(b)(4)(F) or 103(b)(6) of the Internal Revenue Code of
1954, or any successor provision thereof; or (ii) which, in the opinion
of the Board of Directors of the Borrower, is not of material
importance to the total business conducted by the Borrower and its
Subsidiaries as an entirety.
"Proceeds" means "proceeds" as defined in Section 9-306(1) of
the Uniform Commercial Code as in effect in the relevant jurisdiction
and, whether or not the following constitute proceeds under such
section, (i) any and all proceeds of any insurance, indemnity, warranty
or guaranty payable to any Grantor from time to time with respect to
any of the Collateral, (ii) any and all other amounts from time to time
paid or payable to, or for the account of, any Grantor upon the sale,
exchange, collection or other disposition of any part of the
Collateral, and (iii) any and all interest or dividends paid or
distributed with respect to the Collateral. Notwithstanding any of the
foregoing, the Receivables generated upon the sale of Inventory in the
ordinary course of business shall not constitute Proceeds of such
Inventory for purposes of this Agreement, except for the Permitted
Receivables.
"Receivables" means presently existing and hereafter arising
or acquired accounts receivable, notes, drafts, acceptances, choses in
action and other forms of obligations and receivables relating in any
way to inventory or arising from the sale of Inventory or the rendering
of services by any Grantor or howsoever otherwise arising, including
the right to payment of any interest or finance charges with respect
thereto and all proceeds of insurance with respect thereto, together
with all merchandise represented by any of the foregoing, all of such
Grantor's rights as an unpaid vendor, all pledged assets and letters of
credit, guaranty claims, liens and security interests (unless otherwise
prohibited by the applicable terms thereof) held by or granted to such
Grantor to secure payment of any of the foregoing and all books,
customer lists, ledgers, records and files (whether written or stored
electronically relating to any of the foregoing).
"Release" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching,
emanation or migration in, into, onto or through the environment
(including ambient air, surface water, ground water, land surface,
subsurface strata or workplace), including the movement of any
Contaminant through or in the air, soil, surface water or ground water.
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"Required Lenders" has the meaning ascribed to such term in
the Credit Agreement.
"Secured Debt" means all indebtedness, obligations and
liabilities (whether or not constituting future advances, obligatory or
otherwise) of the Borrower and any and all of the other Grantors
existing on the date hereof or from time to time arising hereafter
under or in respect of this Agreement, the Credit Agreement, the other
Debt Instruments and Collateral Documents (including, without
limitation, the obligations to pay principal, interest and all other
charges, fees, expenses, commissions, reimbursements, premiums,
indemnities and other payments related to or in respect of the
obligations contained in this Agreement, the Credit Agreement, the
other Debt Instruments and Collateral Documents) or in respect of any
cash management, treasury, depository or other commercial banking
agreements (including, but not limited to, any liabilities and
obligations incurred in connection with automated clearinghouse
transfers and any advances made in respect of uncollected funds), in
each case whether (i) such obligations are direct or indirect, secured
or unsecured, joint or several, actual, absolute or contingent, due or
to become due, whether at stated maturity, by acceleration or
otherwise, liquidated or unliquidated, (ii) arising by contract,
operation of law, in the regular course of business or otherwise, (iii)
for payment or performance and/or (iv) now existing or hereafter
arising (including, without limitation, interest and other obligations
arising or accruing after the commencement of any bankruptcy,
insolvency, reorganization or similar proceeding with respect to any
Grantor or any other Person, or which would have arisen or accrued but
for the commencement of such proceeding, even if such obligation or the
claim therefor is not enforceable or allowable in such proceeding).
"Secured Party" has the meaning given to such term in the
recitals to this Agreement.
"Senior Agent" has the meaning given to such term in the
Intercreditor Agreement, together with its successors in such capacity.
"Senior Collateral Documents" has the meaning given to such
term in the Intercreditor Agreement.
"Senior Collateral Trust Agreement" has the meaning given to
such term in the Intercreditor Agreement.
"Senior Collateral Trustee" means Bank of America, N.A., in
its capacity as senior collateral trustee under the Intercreditor
Agreement, together with its successors in such capacity.
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"Senior First Lien Indebtedness" has the meaning given to such
term in the Intercreditor Agreement.
"Senior Lenders" has the meaning given to such term in the
Intercreditor Agreement.
"Stock Pledge Agreements" means the pledge agreements
identified on Schedule C hereto and the Stock Pledge Agreement(s) of
any Additional Grantor(s), in substantially the form of Exhibit B
hereto, as the same may be amended, supplemented or otherwise modified
in accordance with their respective terms.
"Subsidiary" of any Person shall mean any corporation,
partnership (limited or general), trust or other entity of which a
majority of the stock (or equivalent ownership or controlling interest)
having voting power to elect a majority of the board of directors (if a
corporation) or to select the trustee or equivalent controlling
interest, shall, at the time such reference becomes operative, be
directly or indirectly owned or controlled by such Person or one or
more of the other Subsidiaries of such Person or any combination
thereof.
"Supporting Documents" means all financing statements,
opinions, officers' certificates, title insurance policies, surveys,
appraisals and other documents reasonably requested by the
Administrative Agent in connection with the execution, delivery,
filing, registering and/or recording of Additional Collateral Documents
pursuant to Sections 2.2 and 2.3 of this Agreement.
"Transferred Assets" has the meaning given to such term in the
Credit Agreement.
(b) Terms not otherwise defined herein which are defined in or
used in Article 9 of the Uniform Commercial Code as in effect in the relevant
jurisdiction shall herein have the meanings given to them in said Article 9;
provided, however, that with respect to any term used herein that is defined in
either (i) Article 9 of the Uniform Commercial Code as in effect on the date
hereof or (ii) Article 9 of the Uniform Commercial Code as in effect at any
relevant time hereafter (including, without limitation, Revised Uniform
Commercial Code Article 9), the meaning to be ascribed to such term with respect
to any particular item or type of property shall be the more encompassing of the
two definitions.
(c) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
specified.
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any
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particular provision of this Agreement and all section references herein are to
this Agreement unless otherwise specified.
SECTION 2
SECURITY INTERESTS
SECTION 2.1 Grant of Certain Security Interests.
(a) As collateral security for the prompt and complete payment and
performance when due of all of the Secured Debt, each Grantor does hereby
pledge, assign and transfer unto the Administrative Agent for itself hereunder
and for the ratable benefit of the Secured Parties, and does hereby grant to the
Administrative Agent for itself hereunder and for the ratable benefit of the
Secured Parties, a continuing security interest, subject, as to priority, only
to (1) Liens permitted by the Credit Agreement which, pursuant to applicable
law, are prior in right to the Lien granted hereby and (2) Liens in favor of the
Senior Collateral Trustee securing the First Lien Indebtedness, in (i) all of
the right, title and interest of such Grantor in, to and under all cash, deposit
accounts (including, without limitation, all deposit accounts established and
maintained pursuant to the provisions of Section 6.15 of the Credit Agreement),
accounts (other than accounts relating to Transferred Assets), deposits (other
than deposits relating to Transferred Assets), chattel paper, contract rights,
instruments, securities, investment property, letter-of-credit rights, insurance
policies and documents now or at any time hereafter in the possession or under
control of such Grantor or its bailee or the Senior Collateral Trustee, as
secured party, and any interest therein, (ii) all of the right, title and
interest of such Grantor in, to and under all Inventory, whether now existing or
hereafter from time to time acquired, (iii) all of the right, title and interest
of such Grantor in, to and under all Permitted Receivables, (iv) all of the
right, title and interest of such Grantor in general intangibles (including,
without limitation, inventions, designs, patents, patent applications,
trademarks, trademark applications, trade names, copyrights, licenses, tax
refund claims, guaranty claims, contract rights, goodwill, and security
interests or other security held by such Grantor to secure accounts) other than
those general intangibles that may not be assigned or which require the consent
of other parties prior to any assignment thereof if consent to such assignment
has not been obtained, (v) all of the right, title and interest of such Grantor
in goods, equipment (including, without limitation, all equipment used in such
Grantor's business and all office equipment), vehicles and fixtures, together
with accessions thereto and replacement parts therefor, whether now existing or
hereafter acquired, (vi) all of the right, title and interest of such Grantor in
all books and records, including without limitation, customer lists, credit
files, computer programs, print-outs, and other materials and records pertaining
to any of the foregoing, (vii) all of the right, title and interest of such
Grantor in the equipment, goods and other personal property comprising the power
distribution systems more particularly described on Schedule I to this
Agreement, (viii) all of the shares of capital stock or other equity interests
of each Domestic Subsidiary of such Grantor and 65% of the shares of all capital
stock or
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other equity interests of each direct Foreign Subsidiary of such Grantor, in
each case as now owned or hereafter acquired by such Grantor, including, without
limitation, any Pledged Stock of such Grantor, (ix) all interests of such
Grantor in any real property owned or leased by such Grantor other than real
property leased to such Grantor with respect to which a Lien may not be granted
to secure the Secured Debt pursuant to the terms of the applicable lease unless
any consents required to permit such Lien have been obtained, (x) all "Trust
Agreement Collateral" (as defined in the Senior Collateral Trust Agreement),
(xi) all Proceeds of the foregoing (including, without limitation, all insurance
and claims for insurance effected or held for the benefit of such Grantor or the
Secured Parties in respect thereof), (xii) all documents of title evidencing or
issued with respect to any of the foregoing, (xiii) all products of any and all
of the foregoing and (xiv) all other property of such Grantor, whether now owned
or hereafter acquired (all of the property described in clauses (i) through
(xiv) above, collectively, the "Grantor Collateral"); provided, however, that
the Grantor Collateral shall not include any Excluded Property, whether now
owned or hereafter acquired, or the products or Proceeds thereof.
(b) The assignment and security interest so granted to the
Administrative Agent shall not relieve any Grantor from the performance of any
term, covenant, condition or agreement on such Grantor's part to be performed or
observed under or in respect of any of the Collateral or from any liability to
any Person under or in respect of any of the Collateral or impose any obligation
on the Administrative Agent to perform or observe any such term, covenant,
condition or agreement on such Grantor's part to be so performed or observed or
impose any liability on the Administrative Agent for any act or omission on the
part of such Grantor relative thereto or for any breach of any representation or
warranty on the part of such Grantor, contained in any Debt Instrument,
Collateral Document or otherwise, or in respect of the Collateral or made in
connection herewith or therewith. The obligations of each Grantor contained in
this paragraph shall survive the termination of this Agreement and the discharge
of such Grantor's other obligations hereunder.
SECTION 2.2 Covenant to Grant Additional Security Interests; Additional
Grantors. As further collateral security for the prompt and complete payment and
performance when due of all of the Secured Debt, each Grantor does hereby agree:
(a) To execute and deliver to the Administrative Agent,
in form and content reasonably satisfactory to the Administrative
Agent, a deed of trust or mortgage relating to any real property,
improvements and fixtures hereafter acquired by such Grantor for so
long as the Secured Debt remains outstanding, together with all
Supporting Documents relating to such additional property;
(b) To cause each of its Domestic Subsidiaries (other
than Xxxxx or any Inactive Subsidiary) which becomes a Subsidiary after
the date hereof (the "Additional Grantors") to, on the date such Person
becomes a Subsidiary, (i) guaranty the Secured Debt on terms
substantially similar to those set forth in the Guaranties, (ii) become
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a party to this Agreement as a Grantor and (iii) by becoming a party to
this Agreement as a Grantor, grant to the Administrative Agent for
itself hereunder and for the ratable benefit of the Secured Parties, a
continuing security interest (subject as to priority only to (i) Liens
permitted by the Credit Agreement which, pursuant to applicable law,
are prior in right to the Lien so granted and (ii) Liens in favor of
the Senior Collateral Trustee securing the First Lien Indebtedness) in
all types of real and personal property included in Section 2.1(a) as
Grantor Collateral (all of such real and personal property described in
this Section 2.2 shall be referred to, collectively, as the "Additional
Grantor Collateral"); provided, however, that the Additional Grantor
Collateral shall not include any Excluded Property;
(c) To execute and deliver to the Administrative Agent,
in form and content reasonably satisfactory to the Administrative
Agent, a stock pledge agreement pledging all of the capital stock or
other equity interests of any Domestic Subsidiary of such Grantor
acquired after the date of this Agreement, together with any Supporting
Documents related thereto; and
(d) To execute and deliver to the Administrative Agent,
in form and content reasonably satisfactory to the Administrative
Agent, a stock pledge agreement pledging 65% of the capital stock or
other equity interests of any direct Foreign Subsidiary.
(e) That neither the Borrower nor any of its Subsidiaries
shall take, or knowingly or negligently omit to take, any action which
action or omission would have the effect of causing a Lien to be
created or exist in favor of the Senior Collateral Trustee, the Senior
Agent or the Senior Lenders under the Senior Credit Agreement or the
Senior Collateral Documents on any property or assets unless
substantially contemporaneously with the granting of such Lien a Lien
is created in favor of the Administrative Agent for the benefit of the
Secured Parties and perfected with respect to such property or assets.
Such Lien in favor of the Administrative Agent for the benefit of
Secured Parties shall at all times be in accordance with the provisions
of the Collateral Documents with respect to priority and otherwise.
SECTION 2.3 Additional Collateral Documents and Supporting Documents.
(a) As soon as reasonably practicable, each Grantor agrees to
execute and deliver to the Administrative Agent such Additional Collateral
Documents, in form and substance reasonably satisfactory to the Administrative
Agent, and to make all filings, registrations, and recordings necessary or
appropriate to create, preserve, protect and perfect the security interest
granted by such Grantor to the Administrative Agent hereunder and under any
other Collateral Documents in respect of the Collateral so that such security
interest (i) constitutes a perfected security interest therein superior and
prior to the rights of all other Persons therein (except Persons holding Liens
permitted by the Credit Agreement or a Collateral Document) and subject
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to no other Liens (except Liens permitted by the Credit Agreement or a
Collateral Document) and (ii) entitled to all the rights, priorities and
benefits afforded by the Uniform Commercial Code or other relevant law as
enacted in any relevant jurisdiction which relates to perfected security
interests.
(b) In connection with the actions taken pursuant to Section
2.3(a), each Grantor agrees to, and agrees to cause any Additional Grantor that
is its Subsidiary to, execute and/or deliver to the Administrative Agent such
Supporting Documents as the Administrative Agent reasonably requests, in form
and substance satisfactory to the Administrative Agent.
SECTION 2.4 Powers of Attorney. 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 power and authority in the name of such Grantor or
the name of such attorney-in-fact, from time to time in the Administrative
Agent's discretion, for the purpose of signing documents and taking other action
to perfect, promote, protect and enforce the Liens and security interests of the
Administrative Agent in the Collateral. Each Grantor hereby ratifies, to the
extent permitted by law, all that said attorneys shall lawfully do or cause to
be done by virtue hereof. This power of attorney is a power coupled with an
interest, shall be irrevocable until the Secured Debt is indefeasibly paid in
full and shall not be subject to the limitations of Section 6.1(a) of this
Agreement.
SECTION 3
CONCERNING ADMINISTRATIVE AGENT
SECTION 3.1 The actions of the Administrative Agent hereunder are
subject to the provisions of the Credit Agreement, the Collateral Documents and
the Intercreditor Agreement. The Administrative Agent shall have the right
hereunder to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking action (including,
without limitation, the release or substitution of the Collateral), in
accordance with this Agreement, the Credit Agreement and the other Collateral
Documents.
SECTION 4
GENERAL REPRESENTATIONS, WARRANTIES
AND COVENANTS OF THE GRANTORS
SECTION 4.1 Title to Pledged Collateral. Each Grantor represents and
warrants that it has good and marketable title to, or a validly existing
leasehold interest in, its Collateral, subject only to Liens permitted by the
Credit Agreement and the Collateral Documents, with such exceptions as are not
material to such Grantor and its Subsidiaries taken as a whole. No Grantor will
(i) create, incur, assume or permit to exist any Lien on any existing or future
item of Collateral other than Liens permitted by the Credit Agreement and the
Collateral
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Documents and Liens in favor of the Administrative Agent and the Secured Parties
as contemplated by the Collateral Documents, and each Grantor hereby agrees to
preserve and maintain in full force and effect the Liens on the Collateral
created by the Collateral Documents in favor of the Administrative Agent and the
Secured Parties, or (ii) enter into or assume any agreement containing a
negative pledge which would require a sharing of an interest in the Collateral
or prohibits or limits the grant of any such interest. Until all of the Secured
Debt and the Administrative Agent's Fees shall have been fully paid and
satisfied, the Administrative Agent shall be entitled to retain security in and
Liens upon all Collateral and all of the Administrative Agent's rights and
remedies shall continue. Each Grantor represents and warrants that (i) each
Collateral Document creates a valid, enforceable and binding Lien on the
Collateral in favor of the Administrative Agent subject only to Liens permitted
by the Credit Agreement and the Collateral Documents and (ii) the Collateral
subject to the Lien of the Collateral Documents constitutes all the property and
assets on which the Senior Collateral Trustee has been granted a Lien pursuant
to the Senior Collateral Documents.
SECTION 4.2 Other Financing Statements; Grantors' Names. So long as any
of the Secured Debt or Administrative Agent's Fees remain unpaid, no Grantor
will execute or authorize to be filed in any public office any financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) or statements relating to the Collateral, except financing
statements filed or to be filed in respect of and covering the security
interests granted by such Grantor pursuant to the Collateral Documents or as
otherwise permitted by the Credit Agreement or the Collateral Documents.
Attached hereto as Schedule E is a list of all names under which each Grantor
does business. Each Grantor hereby agrees that it will promptly notify the
Administrative Agent in writing of any changes in such list.
SECTION 4.3 Chief Executive Offices, Records; Jurisdiction of
Organization.
(a) The chief executive office of each Grantor is at the location
for such Grantor listed on Schedule F hereto. No Grantor will move its chief
executive offices except to such new location as such Grantor may establish in
accordance with the last sentence of this Section 4.3. No Grantor will establish
a new location for its chief executive office until (i) it shall have given to
the Administrative Agent not less than 45 days' prior written notice of its
intention with respect to such establishment, clearly describing such new
location and providing such other information in connection therewith as the
Administrative Agent may reasonably request, and (ii) with respect to such new
location, it shall have taken all action, satisfactory to the Administrative
Agent, to maintain the perfection of the security interest of the Administrative
Agent in the Collateral at all times fully perfected and in full force and
effect.
(b) The exact legal name of each Grantor is set forth on Schedule
F hereto. The jurisdiction of organization of each Grantor (together with the
organizational number, if any, issued by such jurisdiction to such Grantor) is
listed on Schedule F hereto. No Grantor will "reincorporate" or "reorganize" or
otherwise cause the Collateral to be transferred to a Person incorporated or
organized in another state except to the extent (i) permitted pursuant to the
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provisions of the Credit Agreement and (ii) it shall have given to the
Administrative Agent not less than 45 days' prior written notice of its
intention so to do, clearly describing such transaction and providing such other
information in connection therewith as the Administrative Agent may reasonably
request, and such Grantor shall have taken all action satisfactory to the
Administrative Agent to maintain the perfection of the security interest of the
Administrative Agent in the Collateral at all times as fully perfected and in
full force and effect.
SECTION 4.4 Location of Inventory and Equipment. Attached hereto as
Schedule G is a list of all the locations (i) in the United States where all
Inventory or equipment of each Grantor is held and (ii) outside of the United
States where Inventory or equipment owned by any Grantor having value in excess
of $1,000,000 is located. Each Grantor agrees that, except as provided herein,
all Inventory and equipment now held or subsequently acquired by it shall be
kept at (or shall be in transit to or from) any one of such locations, or such
new location as such Grantor may establish if (i) it shall have given to the
Administrative Agent prior telephonic (immediately confirmed in writing) or
written notice of its intention to do so, clearly describing such new location
and providing such other information in connection therewith as the
Administrative Agent may request, and (ii) with respect to such new location, it
shall have taken all action satisfactory to the Administrative Agent to cause
the security interest in the Collateral granted by the Collateral Documents to
be and continue at all times fully perfected and in full force and effect.
SECTION 4.5 Location of Real Property. Attached hereto as Schedule H is
a list of all the locations where each Grantor owns real property having a
market value of more than $500,000 in the aggregate per location, and each such
entry on the list identifies all such real property which constitutes Excluded
Property or Principal Domestic Manufacturing Property.
SECTION 4.6 Additional Representations and Warranties of the Grantor.
Each Grantor hereby makes and adopts for the benefit of, and as a representation
and warranty to, the Administrative Agent each of the representations and
warranties made by the Borrower that applies to such Grantor and contained or
incorporated by reference in the Credit Agreement as fully as if each such
representation and warranty (together with related definitions and related
provisions) were expressly set forth herein and expressly made herein by such
Grantor, each such representation and warranty being incorporated in this
Agreement by reference, mutatis mutandis, and, as so made and adopted by such
Grantor and incorporated herein by reference, shall continue in full force and
effect for the benefit of the Administrative Agent until this Agreement shall
have been terminated in its entirety pursuant to Section 10.
SECTION 4.7 Additional Affirmative and Negative Covenants of the
Grantors. Each Grantor hereby assumes and adopts and agrees to perform, comply
with and be bound by, for the benefit of the Administrative Agent, each of the
covenants, obligations and agreements made by the Borrower that applies to such
Grantor in the Credit Agreement as fully as if each such covenant, obligation
and agreement (together with related definitions and related provisions) were
expressly made herein by such Grantor, each such covenant, obligation and
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agreement being incorporated in this Agreement by reference, mutatis mutandis,
and as so assumed and adopted by such Grantor and incorporated herein by
reference, shall continue for the benefit of the Administrative Agent until this
Agreement shall have been terminated in its entirety pursuant to Section 10.
Each Grantor represents and acknowledges that an executed (or conformed) copy of
the Credit Agreement, the Collateral Security Agreement and the other Collateral
Documents have been made available to its principal executive officers and such
officers are familiar with their respective contents.
SECTION 4.8 Joint and Several Liabilities of Grantors. Each Grantor
agrees that its obligations and liabilities hereunder shall be joint and
several; provided, however, that the liability of each Grantor that is a
Subsidiary of the Borrower to any party other than the Administrative Agent
shall be limited to the extent set forth in the Guaranty of such Grantor.
SECTION 5
PROVISIONS CONCERNING THE COLLATERAL
SECTION 5.1 Location of Goods and Equipment. Attached as Schedule G
hereto is a list of the locations (i) in the United States of all goods and
equipment held by each Grantor and (ii) outside of the United States where
Inventory owned by any Grantor having value in excess of $1,000,000 is located.
Each Grantor hereby agrees that it will promptly notify the Administrative Agent
of any changes in such list. Each Grantor agrees that, except as provided
herein, all goods and equipment now held or subsequently acquired by it shall be
kept at (or shall be in transit to or from) any one of such locations, or such
new location as such Grantor may establish if (i) it shall have given to the
Administrative Agent prior telephonic (immediately confirmed in writing) or
written notice of its intention to do so, clearly describing such new location
and providing such other information in connection therewith as the
Administrative Agent may reasonably request, and (ii) with respect to such new
location, it shall have taken all action satisfactory to the Administrative
Agent to cause the security interest in its Collateral granted by the Collateral
Documents to be and continue at all times fully perfected and in full force and
effect.
SECTION 5.2 Further Actions - Collateral. Each Grantor will, at its own
expense, make, execute, endorse, acknowledge, file and/or deliver to the
Administrative Agent from time to time such lists, descriptions and designations
of its Collateral, warehouse receipts, receipts in the nature of warehouse
receipts, bills of lading, documents of title, vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, reports and other assurances or
instruments and take such further steps relating to its collateral and other
property or rights covered by the security interest granted by the Collateral
Documents, which the Administrative Agent deems reasonably appropriate or
advisable to perfect, preserve, protect or enforce its security interest in its
Collateral. Each Grantor shall immediately notify the Administrative Agent in
writing of any material loss or depreciation in the value of its Collateral.
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SECTION 5.3 Financing Statements. Each Grantor agrees to sign and
deliver to the Administrative Agent such financing statements or amendments
thereof, in form acceptable to the Administrative Agent, as the Administrative
Agent may from time to time request in order to establish and/or maintain a
valid, enforceable, security interest in its Collateral as provided in the
Collateral Documents subject to no Liens other than those permitted under the
Credit Agreement and the other rights, as against third parties, provided by the
Collateral Documents, all in accordance with the Uniform Commercial Code as
enacted in any and all relevant jurisdictions or any other relevant law. The
Grantors will pay all applicable filing fees and related expenses. Each Grantor
authorizes the Administrative Agent to file any such financing statements
without the signature of such Grantor to the extent permitted by law.
SECTION 5.4 Warehouse Receipts Non-Negotiable. Each Grantor agrees that
if any warehouse receipts or receipts in the nature of a warehouse receipt are
issued with respect to any of its Inventory, no more than an aggregate
outstanding amount of $5,000,000 of such warehouse receipts or receipts in the
nature thereof shall be "negotiable" (as such term is used in Section 7-104 (or
any successor provision thereto) of the Uniform Commercial Code as in effect
from time to time in any relevant jurisdiction or under other relevant law) at
any time.
SECTION 5.5 Protection of Administrative Agent's Security. No Grantor
will do anything to impair the rights of the Administrative Agent in the
Collateral. Each Grantor will at all times keep its Collateral insured in
compliance with the requirements of the Credit Agreement. Each Grantor assumes
all liability and responsibility in connection with the Collateral acquired by
it, and the liability of each Grantor with respect to the Secured Debt shall in
no way be affected or diminished by reason of the fact that such Collateral may
be lost, stolen, damaged, or for any reason whatsoever unavailable to such
Grantor. Each Grantor shall keep and maintain in good operating condition and
repair and, to the extent deemed necessary by such Grantor in its sound business
judgment, make all necessary replacements of and renewals to its Collateral so
that the value and operating efficiency thereof shall at all times be maintained
and preserved.
SECTION 6
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1 Remedies.
(a) Upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent, subject to the provisions of the
Intercreditor Agreement to the extent the Intercreditor Agreement shall then be
in effect, may exercise the rights and remedies provided in this Agreement and
in any other Collateral Document.
(b) Each Grantor hereby waives presentment, demand, protest or any
notice (to the extent permitted by applicable law and except as otherwise
expressly provided in this Agreement
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or any other Collateral Document) of any kind in connection with this
Agreement, any other Collateral Document or any Collateral.
(c) Each Grantor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full power and
authority in the name of such Grantor or in its own name, from time to time in
the Administrative Agent's discretion, upon the occurrence and during the
continuance of any Event of Default, for the purpose of carrying out the terms
of any of the Collateral Documents, to take any and all appropriate action and
to execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes hereof and thereof and, without limiting
the generality of the foregoing, hereby gives the Administrative Agent the power
and right on behalf of such Grantor, without notice to or assent by such
Grantor, to the extent permitted by applicable law, to do the following:
(i) to ask for, demand, xxx for, collect, receive and
give acquittance for any and all moneys due or to become due with
respect to the Collateral of such Grantor,
(ii) to receive, take, endorse, assign and deliver any and
all checks, notes, drafts, acceptances, documents and other negotiable
and non-negotiable instruments, documents and chattel paper taken or
received by the Administrative Agent in connection with any of the
Collateral Documents,
(iii) to commence, file, prosecute, defend, settle,
compromise or adjust any claim, suit, action or proceeding with respect
to the Collateral of such Grantor,
(iv) to sell, transfer, assign, foreclose or otherwise
deal in or with the Collateral or any part thereof pursuant to the
terms and conditions of the Collateral Documents, and
(v) to do, at its option and at the expense and for the
account of such Grantor, at any time or from time to time, all acts and
things which the Administrative Agent deems reasonably necessary or
desirable to protect or preserve the Collateral and to realize upon the
Collateral.
(d) Each Grantor agrees that, upon the occurrence and during the
continuance of an Event of Default, then and in every such case, subject to any
mandatory requirements of applicable law then in effect and to the provisions of
the Intercreditor Agreement, to the extent the Intercreditor Agreement shall
then be in effect, the Administrative Agent may:
(i) personally, or by agents or attorneys, immediately
retake possession of the Collateral of such Grantor or any part
thereof, from such Grantor or any other Person who then has possession
of any part thereof with or without notice or process of law, and for
that purpose may enter upon such Grantor's premises where any of such
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Collateral is located and remove the same and use in connection with
such removal, at the sole cost and expense of such Grantor, any and all
services, supplies, aids and other facilities of such Grantor;
(ii) instruct the obligor or obligors on any agreement,
instrument or other obligation constituting the Collateral of such
Grantor to make any payment required by the terms of such instrument or
agreement directly to the Administrative Agent;
(iii) sell or otherwise liquidate, or direct such Grantor to
sell or otherwise liquidate, any or all investments made in whole or in
part with its Collateral or any part thereof, and take possession of
the proceeds of any such sale or liquidation; and
(iv) take possession of the Collateral of such Grantor or any
part thereof, by directing such Grantor in writing to deliver the same
to the Administrative Agent at any reasonable place or places
designated by the Administrative Agent, in which event such Grantor
shall at its own expense (a) forthwith cause the same to be moved to
the place or places so designated by the Administrative Agent and there
delivered to the Administrative Agent, (b) store and keep any
Collateral so delivered to the Administrative Agent at such place or
places pending further action by the Administrative Agent, and (c)
while such Collateral shall be so stored and kept, provide such guards
and maintenance services as shall be necessary to protect the same and
to preserve and maintain them in good condition.
SECTION 6.2 Disposition of Collateral.
(a) Any Collateral repossessed by the Administrative Agent under or
pursuant to Section 6.1 and any other Collateral whether or not so repossessed
by the Administrative Agent, may be sold, leased or otherwise disposed of under
one or more contracts or as an entirety, and without the necessity of gathering
at the place of sale the property to be sold, and in general in such manner, at
such time or times, at such place or places and on such terms and for such
prices as the Administrative Agent may, in compliance with any mandatory
requirements of applicable law, determine to be commercially reasonable. Upon
the occurrence and during the continuance of an Event of Default, the
Administrative Agent shall have the power to foreclose any Grantor's right of
redemption in its Collateral by sale, lease or other disposition of such
Collateral in accordance with the Uniform Commercial Code as enacted in each
state where such Collateral is located. Any of the Collateral may be sold,
leased or otherwise disposed of in the condition in which the same existed when
taken by the Administrative Agent or after any overhaul or repair which the
Administrative Agent shall determine to be commercially reasonable, the cost of
such overhaul or repair to be borne by the Grantors. Any such disposition which
shall be a private sale or other private proceedings permitted by the
requirements of applicable law shall be made after written notice to the Grantor
whose Collateral is to be disposed of specifying the time at which such
disposition is to be made and the intended sale price or other consideration
therefor. Any such disposition which shall be
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a public sale permitted by such requirements shall be made after written notice
to the Grantor whose Collateral is to be disposed of specifying the time and
place of such sale and, in the absence of applicable requirements of law, shall
be by public auction. To the extent permitted by any such requirement of law,
the Administrative Agent or any Secured Party may itself bid for and become the
purchaser of the Collateral, or any item thereof, offered by sale in accordance
with this Section 6 without accountability to such Grantor. If, under mandatory
requirements of applicable law, the Administrative Agent shall be required to
make disposition of the Collateral within a period of time which does not permit
the giving of notice to a Grantor as hereinabove specified, the Administrative
Agent need give such Grantor only such notice of disposition as shall be
reasonably practicable in view of such mandatory requirements of applicable law.
(b) No notification need be given to Grantor if it has signed, after an
Event of Default, a statement renouncing or modifying any right to notification
of sale or other intended disposition. In addition to, and not by way of
limitation of, the rights and remedies granted to it in the Collateral
Documents, the Administrative Agent shall have all the rights and remedies of a
secured party under the Uniform Commercial Code of the state in which the
Collateral is located.
SECTION 6.3 Waiver of Rights and Claims.
(a) Except as otherwise provided in this Agreement, EACH GRANTOR HEREBY
WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE OF JUDICIAL HEARING IN
CONNECTION WITH THE ADMINISTRATIVE AGENT'S TAKING POSSESSION OR THE
ADMINISTRATIVE AGENT'S DISPOSITION OF ANY OF THE COLLATERAL INCLUDING, WITHOUT
LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR
REMEDIES AND ANY SUCH RIGHT WHICH SUCH GRANTOR WOULD OTHERWISE HAVE UNDER THE
CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE, and each
Grantor hereby further waives:
(i) all damages occasioned by such taking of possession
except any damages which are the direct result of the Administrative
Agent's gross negligence or willful misconduct;
(ii) all other requirements as to the time, place and terms of
sale or other requirements with respect to the enforcement of the
Administrative Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Agreement or
the absolute sale of the Collateral or any portion thereof, and each
Grantor, for itself and all Persons who may claim under it,
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insofar as it or, they, now or hereafter lawfully may, hereby waives the
benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of each Grantor therein and thereto, and
shall be a perpetual bar both at law and in equity against any Grantor and
against any and all Persons claiming or attempting to claim the Collateral so
sold, optioned or realized upon, or any part thereof, from, through or under any
Grantor.
(b) Each Grantor, to the extent it may lawfully do so, on behalf of
itself and all who may claim through or under it, including, without limitation,
any and all subsequent creditors, vendees, assignees and lienholders, expressly
waives and releases any, every and all rights to demand or to have any
marshalling of the Collateral upon any sale, whether made under any power of
sale granted under the Collateral Documents, pursuant to judicial proceedings,
or upon any foreclosure or any enforcement of the Collateral Documents, and
consents and agrees that the Collateral may at any such sale be offered and sold
as an entirety.
SECTION 6.4 Right to Initiate Judicial Proceedings, etc. Upon the
occurrence and during the continuation of an Event of Default, (i) the
Administrative Agent shall have the right and power to institute and maintain
suits and proceedings to protect and enforce the rights vested in it by the
Collateral Documents, and (ii) the Administrative Agent may, either after entry
or without entry, proceed by suit or suits at law or in equity to enforce such
rights to foreclose upon the Collateral and to sell all or, from time to time,
any of the Collateral under the judgment or decree of a court of competent
jurisdiction.
SECTION 6.5 Appointment of a Receiver. If a receiver shall be
appointed in judicial proceedings, the Administrative Agent may be appointed as
such receiver. Notwithstanding the appointment of a receiver, the Administrative
Agent shall, to the extent permitted by law, be entitled to retain possession
and control of all cash held by or deposited with it or its agents or
co-Administrative Agents pursuant to any provision of any Collateral Document.
SECTION 6.6 Exercise of Powers. All of the powers, remedies and
rights of the Administrative Agent as set forth in this Agreement may be
exercised by the Administrative Agent in respect of any Collateral Document
accepted by the Administrative Agent in writing as though set forth at length
therein and all the powers, remedies and rights of the Administrative Agent as
set forth in any Collateral Document may be exercised from time to time as
herein and therein provided and the indemnities and protections in favor of the
Administrative Agent provided for herein shall apply to the Administrative Agent
acting pursuant to any such Collateral Document as if set forth in full therein.
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SECTION 6.7 Remedies Not Exclusive.
(a) No remedy conferred upon or reserved to the Administrative Agent
herein or in the other Collateral Documents is intended to be exclusive of any
other remedy or remedies, but every such remedy shall the cumulative and shall
be in addition to every other remedy conferred in any of the Collateral
Documents or now or hereafter existing at law or in equity or by statute.
(b) No delay or omission by the Administrative Agent in the exercise of
any right, remedy or power accruing upon an Event of Default shall impair any
such right, remedy or power or shall be construed to be a waiver of any Event of
Default or an acquiescence therein; and every right, power and remedy given by
any Collateral Document to the Administrative Agent may be exercised from time
to time and as often as may be deemed expedient by the Administrative Agent.
(c) In case the Administrative Agent shall have proceeded to enforce
any right, remedy or power under any Collateral Document and the proceeding for
the enforcement thereof shall have been discontinued or abandoned for any reason
or shall have been determined adversely to the Administrative Agent, then and in
every such case the Grantors, the Administrative Agent and the Lenders shall,
subject to any effect of or determination in such proceeding, severally and
respectively be restored to their former positions and rights under the
Collateral Documents and in all other respects, and thereafter all rights,
remedies and powers of the Administrative Agent shall continue as though no such
proceeding had been taken.
(d) All rights of action and rights to assert claims upon or under the
Collateral Documents may be enforced by the Administrative Agent without the
possession of any Debt Instrument or the production thereof in any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Administrative Agent shall be brought in its name as Administrative Agent.
SECTION 6.8 Limitation on Administrative Agent's Duties in Respect of
Collateral. Beyond its duties expressly set forth in those Collateral Documents
executed or otherwise accepted in writing by the Administrative Agent as to the
custody thereof and the accounting to the Grantors for moneys received and held
by it hereunder, the Administrative Agent shall not have any duty to the
Grantors with respect to any Collateral in its possession or control or in the
possession or control of its agents or nominees, any income thereon or the
preservation of rights against prior parties or any other rights pertaining
thereto.
SECTION 6.9 Limitation by Law. All the provisions of this Section 6
are intended to be subject to all applicable mandatory provisions of law which
may at the time of interpretation thereof be controlling in the premises and to
be limited to the extent necessary so that they will not render this Agreement
invalid or unenforceable in whole or in part.
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SECTION 6.10 Absolute Rights of Secured Parties. Notwithstanding any
other provision of any Collateral Document, neither (i) the right of each
Secured Party, which is absolute and unconditional, to receive payments of the
Secured Debt held by such Secured Party on or after the due date thereof as
therein expressed, to institute suit for the enforcement of such payment on or
after such due date, or to assert its position and views as a secured creditor
in, and to otherwise exercise any right (other than the right to enforce any
Lien on the Collateral, which shall in all circumstances be exercisable only by
the Administrative Agent) it may have in connection with, a case under the
Bankruptcy Code in which a Grantor is a debtor, nor (ii) the obligation of each
Grantor, which is also absolute and unconditional, to pay the Secured Debt owing
by such Grantor to each Secured Party at the time and place expressed in the
Debt Instruments, shall be impaired or affected without the written consent of
such Secured Party.
SECTION 6.11 Restatement of Rights. The provisions of this Collateral
Security Agreement shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of Secured Debt is rescinded or must
otherwise be returned by the Administrative Agent or any Secured Party upon the
insolvency, bankruptcy or reorganization of a Grantor or otherwise, all as
though such payment had not been made.
SECTION 7
COLLATERAL ACCOUNT; APPLICATION OF MONEYS
SECTION 7.1 The Collateral Account. There has been established by the
Administrative Agent an account which is entitled the "Collateral Account"
(herein called the "Collateral Account"). The Collateral Account has been
established and shall be maintained by the Administrative Agent at Bankers Trust
Company. After all Senior First Lien Indebtedness shall have been indefeasibly
paid in full in cash (including the cash collateralization of any letter of
credit obligations) and all commitments of the Senior Lenders shall have
terminated, all cash Proceeds of any Collateral received by the Administrative
Agent shall be deposited in the Collateral Account and shall constitute
Collateral hereunder and shall not constitute payment of the Secured Debt until
applied in the manner contemplated in Section 7.4 hereof. At such time as all
Senior First Lien Indebtedness shall have indefeasibly paid in full in cash
(including the cash collateralization of any letter of credit obligations) and
all commitments of the Senior Lenders shall have terminated, each Grantor shall
deposit into the Collateral Account from time to time (A) the cash Proceeds of
any of the Collateral (including pursuant to any disposition thereof), (B) the
cash Proceeds of any condemnation or taking by eminent domain or similar
proceeding or of any casualty, damage or destruction or loss of title with
respect to any Collateral, (C) any cash in respect of any Collateral to which
the Administrative Agent is entitled pursuant to the provisions of any
Collateral Document or Debt Instrument, and (D) any other amounts that such
Grantor desires to pledge to the Administrative Agent for the benefit of the
Secured Parties as additional collateral security hereunder. The balance from
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time to time in the Collateral Account shall constitute part of the Collateral
hereunder and shall not constitute payment of the Secured Debt until applied as
provided in Section 7.4 hereof.
SECTION 7.2 Grant of Security Interest; Control of Collateral
Account.
(a) To secure the prompt and complete payment, when due, of all amounts
owing to the Secured Parties and the Administrative Agent hereunder and under
the Collateral Documents and the Secured Debt, and the performance by each
Grantor of its covenants and obligations to be performed by it pursuant to the
Debt Instruments and the Collateral Documents, each Grantor hereby assigns and
pledges to the Administrative Agent for itself hereunder and for the ratable
benefit of the Secured Parties, and grants to the Administrative Agent for
itself hereunder and for the ratable benefit of the Secured Parties, a security
interest in all of the right, title and interest of such Grantor in and to the
following, whether presently existing or hereafter arising or acquired (the
"Collateral Account Collateral"); (i) the Collateral Account, all cash deposited
therein, all certificates and instruments, if any, from time to time
representing the Collateral Account, (ii) all investments from time to time made
pursuant to Section 7.3, (iii) all notes, certificates of deposit and other
instruments from time to time hereafter delivered to or otherwise possessed by
the Administrative Agent in substitution for, or in addition to, any or all of
the then existing Collateral, (iv) all interest, dividends, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the then existing
Collateral and, (v) to the extent not covered above, all Proceeds of any and all
collections, earnings and accruals with respect to any or all of the foregoing
(whether the same are acquired before or after the commencement of a case under
the Bankruptcy Code by or against such Grantor, as debtor).
(b) All right, title and interest in and to the Collateral Account
shall vest in the Administrative Agent, and funds on deposit in the Collateral
Account shall constitute part of the Collateral. The Collateral Account shall be
subject to the exclusive dominion and control of the Administrative Agent.
SECTION 7.3 Investment of Funds Deposited in Collateral Account. The
Administrative Agent shall invest and reinvest moneys on deposit in the
Collateral Account at any time in one or more Permitted Investments, in its sole
discretion; provided, however, that in order to provide the Secured Parties and
the Administrative Agent with a perfected security interest therein, each such
investment shall be either:
(i) evidenced, or deemed under applicable federal regulations
to be evidenced, by negotiable certificates or instruments or
nonnegotiable certificates or instruments issued in the name of the
Administrative Agent, which (together with any appropriate instruments
of transfer) are delivered to, and held by, the Administrative Agent or
an agent thereof (which shall not be any Grantor or any of its
affiliates); or
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(ii) in book-entry form and in which (in the opinion of
independent counsel to the Administrative Agent) the Administrative
Agent shall have a perfected ownership or security interest which under
applicable law shall not be subject to any other ownership or security
interest;
and provided, further, that the maximum amount of the funds held in the
Collateral Account which may be invested in obligations of the types described
in clauses (ii), (iii) and (iv) of the definition of Permitted Investments of
any one issuer shall not exceed the lesser of five percent (5%) of such funds or
$5,000,000. All such investments and the interest and income received thereon
and therefrom and the net proceeds realized on the sale hereof shall be held in
the Collateral Account.
SECTION 7.4 Application of Proceeds. The proceeds received by the
Administrative Agent in respect of any sale of, collection from or other
realization upon all or any part of the Collateral pursuant to the provisions of
the Intercreditor Agreement or pursuant to the exercise by the Administrative
Agent of its remedies as a secured creditor as provided in Section 6 hereof
shall be applied, together with any other sums then held by the Administrative
Agent pursuant to this Agreement, promptly by the Administrative Agent in
accordance with the provisions of clauses FIRST through SIXTH of Section 3.7(b)
of the Credit Agreement.
In the event that any such proceeds are insufficient to pay in full the
items described in clauses FIRST through SIXTH of Section 3.7(b) of the Credit
Agreement, the Grantors shall remain liable for any deficiency.
SECTION 8
AGREEMENT WITH ADMINISTRATIVE AGENT
SECTION 8.1 Delivery of Debt Instruments. On the date of this Agreement
the Grantors will deliver to the Administrative Agent a true and complete copy
of the Credit Agreement, an executed counterpart of any Collateral Documents and
any Pledged Stock and other Collateral to be delivered pursuant thereto. Each
Grantor agrees that it will deliver to the Administrative Agent (i) promptly
upon the execution thereof, a true and complete copy of any and all Debt
Instruments, Collateral Documents and all amendments, modifications or
supplements to any Debt Instrument or Collateral Documents entered into by such
Grantor subsequent to the date of this Agreement and (ii) when required by the
Collateral Documents, any Pledged Stock or other Collateral to be delivered
pursuant thereto.
SECTION 8.2 Compensation and Expenses. The Grantors agree to pay to the
Administrative Agent (i) the Administrative Agent's Fees as compensation for the
Administrative Agent's services hereunder and under the other Collateral
Documents and for administering the Collateral as shall be mutually agreed by
the Grantors and the Administrative Agent, and (ii) from time to time, upon
demand, all of the fees, costs and expenses of the
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Administrative Agent (including, without limitation, the reasonable fees and
disbursements of its counsel and such special counsel as the Administrative
Agent elects to retain) (A) arising in connection with the preparation,
execution, delivery, modification, restatement, amendment or termination of this
Agreement and each other Collateral Document or the enforcement (whether in the
context of a civil action, adversary proceeding, workout or otherwise) of any of
the provisions hereof or thereof, or (B) incurred or required to be advanced in
connection with the administration of the Collateral, the sale or other
disposition or the custody, preservation or protection of Collateral pursuant to
any Collateral Document and the exercise or enforcement of the Administrative
Agent's rights under any Collateral Document and in and to the Collateral. As
security for such payment and the payment of the obligations set forth in
Sections 8.3 and 8.4, the Administrative Agent shall have a Lien prior to such
of the Secured Debt as constitutes Collateral and other property and funds held
or collected by the Administrative Agent; it being understood that such Lien
shall solely secure the portion of the Secured Debt owing to the Administrative
Agent and the Administrative Agent waives, with respect to all of its existing
and future claims against the Borrower and any Guarantor (other than its claims
with respect to the Secured Debt), all existing and future rights of set-off,
banker's liens or security interests in or against any deposits, accounts,
funds, instruments, securities and other items of Collateral that come into its
possession pursuant to the Collateral Documents except those rights of set-off
and banker's liens arising in connection with items deposited in the Collateral
Account or any other account established with the Administrative Agent. The
obligations of the Grantors to pay amounts due under this Section 8.2 shall
survive the termination of this Agreement.
SECTION 8.3 Stamp and Other Similar Taxes. The Grantors agree to
indemnify and hold harmless the Administrative Agent from, and shall reimburse
the Administrative Agent and each Secured Party for, any present or future claim
for liability for any stamp or other similar tax and any penalties or interest
with respect thereto which may be assessed, levied or collected by any
jurisdiction in connection with any Collateral Document, or the attachment or
perfection of the security interest granted to the Administrative Agent in any
Collateral. The obligations of the Grantors under this Section 8.3 shall survive
the termination of the other provisions of this Agreement.
SECTION 8.4 Filing Fees, Excise Taxes, etc. The Grantors agree to pay
or to reimburse the Administrative Agent for any and all amounts in respect of
all search, filing, recording and registration fees, taxes, excise taxes and
other similar imposts which may be payable or determined to be payable in
respect of the execution, delivery, performance and enforcement of each
Collateral Document and agree to save the Administrative Agent harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and fees. The obligations of the Grantors
under this Section 8.4 shall survive the termination of the other provisions of
this Agreement.
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SECTION 8.5 Indemnification.
(a) The Grantors agree to pay, and indemnify and hold harmless the
Administrative Agent and each of its employees and agents from and against, any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, amounts paid in settlements, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of the Collateral Documents and the
Collateral, except to the extent arising from the gross negligence or willful
misconduct of the Administrative Agent or its employees or such agents as are
seeking indemnification. Without limiting the foregoing, the Grantors agree to
pay, and indemnify and hold harmless the Administrative Agent and each of its
employees and agents from and against, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, amounts paid in settlements,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the foreclosure by the Administrative Agent on any Collateral consisting of
real property to the extent such foreclosure is permitted by this Agreement,
except to the extent arising from the gross negligence or willful misconduct of
the Administrative Agent or its employees or such agents as are seeking
indemnification.
(b) In any suit, proceeding or action brought by the Administrative
Agent under or with respect to the Collateral for any sum owing thereunder, or
to enforce any provisions thereof, or of any of the Collateral Documents, the
Grantors will save, indemnify and keep the Administrative Agent harmless from
and against all expense, loss or damage suffered by reason of any defense,
set-off, counterclaim, recoupment or reduction of liability whatsoever of the
obligee thereunder, arising out of a breach by the Grantors of any of their
respective obligations thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to or in favor of such obligee or
its successors from the Grantors, and all such obligations of the Grantors shall
be and remain enforceable against and only against the Grantors and shall not be
enforceable against the Administrative Agent.
(c) If and to the extent that the obligations of the Grantors under
this Section 8.5 are unenforceable for any reason, each Grantor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
(d) The agreements in this Section 8.5 shall survive the termination of
the other provisions of this Agreement.
SECTION 8.6 Further Assurances. At any time and from time to time,
upon the written request of the Administrative Agent, and at the expense of the
Grantors, each Grantor will promptly execute and deliver any and all such
further instruments and documents and take such further action as the
Administrative Agent may reasonably deem necessary or desirable to obtain the
full benefits of the Collateral Documents and the rights and powers therein
granted, including, without limitation, the filing of any financing or
continuation statements or
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other instruments to perfect the Liens and security interests granted thereby.
Each Grantor shall, not later than thirty (30) days after the Administrative
Agent's request therefor, deliver to the Administrative Agent an opinion of
independent counsel, which counsel shall be reasonably satisfactory to the
Administrative Agent, addressed to the Administrative Agent for the benefit of
the Secured Parties, concerning the continued perfection of the Liens and
security interests created by the Collateral Documents (excluding, however,
those Liens and security interests which, in accordance with the terms of the
Collateral Documents, have been released); provided, however, that the
Administrative Agent shall have no obligation at any time to request such
opinion from any Grantor. Each Grantor shall, in all of its published financial
statements customarily prepared with footnotes or filed with the Securities and
Exchange Commission, indicate by footnote or otherwise that the Secured Debt is
secured pursuant to the Collateral Documents.
SECTION 9
THE ADMINISTRATIVE AGENT
SECTION 9.1 Appointment of Administrative Agent. The Administrative
Agent has been appointed as Administrative Agent under the terms and conditions
of the Credit Agreement, and the Administrative Agent, for itself and its
successors, hereby accepts this Agreement upon the terms and conditions hereof,
including those contained in this Section 9.
SECTION 9.2 Exculpatory Provisions.
(a) The Administrative Agent shall not be responsible in any manner
whatsoever for the correctness of any recitals, statements, representations or
warranties contained in any of the Collateral Documents, except for those made
by the Administrative Agent. The Administrative Agent makes no representations
as to the value or condition of the Collateral or any part thereof, or as to the
title of any of the Grantors thereto or as to the security afforded by the
Collateral Documents or as to the validity, execution, enforceability, legality,
perfection, priority or sufficiency of any Collateral Document or Supporting
Document or of the Secured Debt secured thereby, and the Administrative Agent
shall incur no liability or responsibility in respect of any such matters. The
Administrative Agent shall not be responsible for insuring, or monitoring or
maintaining the insurance on, the Collateral or for the payment of taxes,
charges, assessments or Liens upon the Collateral or otherwise as to the
maintenance of the Collateral, except that (i) in the event the Administrative
Agent enters into possession of a part or all of the Collateral, the
Administrative Agent shall preserve the part in its possession, and (ii) the
Administrative Agent will promptly, and at its own expense, take such action as
may be necessary duly to remove and discharge (by bonding or otherwise) any Lien
on any part of the Collateral resulting from claims against it (whether
individually or as Administrative Agent) not related to the administration of
the Collateral or (if so related) resulting from gross negligence or willful
misconduct on its part. Notwithstanding anything to the contrary contained in
this Agreement and in furtherance of the immediately preceding sentence, the
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Administrative Agent shall not be responsible for the attachment, perfection,
priority or enforceability of any Lien created or purported to be created by any
Collateral Document or Supporting Document, the adequacy, sufficiency or
effectiveness of any Supporting Document or the value of any Collateral granted
pursuant to any Collateral Document from time to time. The Administrative Agent
shall not be responsible for the filing or recording of any financing statement,
mortgage, security agreement or any other Collateral Document or Supporting
Document in any public office or for the maintaining of any records of any such
filings or recordings, nor shall the Administrative Agent have any duty to file
or record, or to advise the Secured Parties of the need to file or record, any
continuation statements or other public notices relating to the perfection or
continued perfection of any Collateral.
(b) The Administrative Agent shall not be required to ascertain or
inquire as to the performance by any Grantor of any of the covenants or
agreements contained in any Collateral Document or in any Debt Instrument.
Without limiting the foregoing, the Administrative Agent shall have no duty to
(i) enforce any obligations of the Grantors to deliver any agreement,
instrument, document, certificate, schedule, list, opinion of counsel or other
items required to be delivered to the Administrative Agent hereunder, (ii)
advise any Secured Party of the failure of any Guarantor to deliver the same or
(iii) monitor compliance by the Grantors with any requirement to maintain
insurance on any of the Collateral. Whenever it is necessary, or in the opinion
of the Administrative Agent advisable, for the Administrative Agent to ascertain
the identity of any Secured Party or the amount of Secured Debt then held by a
Secured Party, the Administrative Agent may rely on a certificate of such
Secured Party.
(c) Subject to the provisions of applicable law concerning the
Administrative Agent's duty of care with respect to certificates and notes
evidencing the Pledged Stock in the Administrative Agent's possession, the
Administrative Agent shall not be personally liable for any acts, omissions,
errors of judgment or mistakes of fact or law made, taken or omitted to be made
or taken by it in accordance with any Collateral Document (including, without
limitation, acts, omissions, errors or mistakes with respect to the Collateral),
except for those arising out of or in connection with the Administrative Agent's
gross negligence or willful misconduct.
SECTION 9.3 Delegation of Duties. The Administrative Agent may execute
any of the powers provided hereunder and perform any duty hereunder either
directly or by or through agents, nominees or attorneys-in-fact, which may
include employees or officers of any Grantor, provided that the Administrative
Agent shall obtain a written acknowledgment from such agents, nominees or
attorneys-in-fact that they shall be liable to the Secured Parties for losses or
damages incurred by any Secured Party as a result of such agent's, nominee's or
attorneys'-in-fact gross negligence or willful misconduct as and to the extent
the Administrative Agent would be liable for such losses or damages if the
actions or omissions of such agents, nominees or attorneys-in-fact constituting
such gross negligence or willful misconduct had been actions or omissions of the
Administrative Agent. The Administrative Agent shall
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be entitled to rely on advice of counsel concerning all matters pertaining to
such trusts, powers and duties. The Administrative Agent shall not be
responsible for any negligence or misconduct of any agents, nominees or
attorneys-in-fact selected by it without gross negligence or willful misconduct.
SECTION 9.4 Reliance by Administrative Agent.
(a) Whenever in the administration of this Agreement the Administrative
Agent shall deem it necessary or desirable that a matter be proved or
established with respect to any Grantor in connection with the taking, suffering
or omitting of any action hereunder by the Administrative Agent, such matter
(unless other evidence in respect thereof is herein specifically prescribed) may
be deemed to be conclusively proved or established by a certificate of an
Authorized Officer of such Grantor delivered to the Administrative Agent, and
such Certificate shall be full warranty to the Administrative Agent for any
action taken, suffered or omitted in reliance thereon; subject, however, to the
provisions of Section 9.5(b) of this Agreement.
(b) The Administrative Agent may consult with its counsel, which
counsel shall be reasonably satisfactory to the Lenders under the Credit
Agreement, accountants or other experts in connection with the fulfillment of
its duties hereunder, and the Administrative Agent shall be entitled to rely on,
and shall be fully protected in acting upon, the opinion of such counsel,
accountants or other experts in connection with any action taken, omitted to be
taken or suffered by the Administrative Agent in fulfillment of its duties
hereunder. The Administrative Agent shall have the right at any time to seek
instructions concerning the administration of the Collateral from any court of
competent jurisdiction.
(c) The Administrative Agent may rely, and shall be fully protected in
acting, upon any resolution, statement, certificate, instrument, opinion,
report, notice, request, consent, order, bond or other paper or document which
it in good faith believes to be genuine and to have been signed or presented by
the proper party or parties or, in the case of cables, telecopies and telexes,
to have been sent by the proper party or parties and, in the absence of its
gross negligence or willful misconduct, the Administrative Agent may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Administrative Agent and conforming to the requirements of any Collateral
Document.
(d) If the Administrative Agent has been requested or is otherwise
required hereby to take any action pursuant to this Agreement, the
Administrative Agent shall not be under any obligation to exercise any of the
rights or powers vested in the Administrative Agent by this Agreement or any
Collateral Document or to otherwise take such action unless the Administrative
Agent shall have been provided adequate security and indemnity against the
costs, expenses and liabilities which may be incurred by it in compliance with
such request or direction or in taking such action, including such reasonable
advances as may be requested by the Administrative Agent.
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SECTION 9.5 Limitations on Duties of Administrative Agent.
(a) The Administrative Agent shall be obliged to perform only such
duties as are specifically set forth in any Collateral Document which has been
executed by it or otherwise accepted by it in writing, and no implied covenants
or obligations shall be read into any Collateral Document against the
Administrative Agent.
(b) Except as herein otherwise expressly provided, the Administrative
Agent shall not be under any obligation to take any action which is
discretionary with the Administrative Agent under the provisions of any
Collateral Document.
SECTION 9.6 Resignation and Removal of the Administrative Agent.
(a) The Administrative Agent may resign or be removed and be discharged
of the responsibilities hereby created in accordance with the provisions of
Section 9.6 of the Credit Agreement.
(b) If at any time the Administrative Agent shall resign or be removed
or otherwise become incapable of acting, or if at any time a vacancy shall occur
in the office of the Administrative Agent for any other cause, a successor
Administrative Agent may be appointed by the Required Lenders in accordance with
the provisions of the Credit Agreement, and the powers, duties, authority and
title of the predecessor Administrative Agent terminated and canceled without
procuring the resignation of such predecessor Administrative Agent, and without
any other formality (except as may be required by applicable law) than the
appointment and designation of a successor Administrative Agent in writing, duly
acknowledged, delivered to the predecessor Administrative Agent and the
Grantors, and filed for record in each applicable office, if any, in which this
Agreement is required to be filed. Any successor Administrative Agent appointed
pursuant to this Section 9.6(b) must be reasonably acceptable to the Borrower
unless at the time of such appointment an Event of Default exists.
(c) The appointment and designation referred to in Section 9.7(b) of
this Agreement shall, after any required filing, be full evidence of the right
and authority to make the same and all of the facts therein recited, and this
Agreement shall vest in such successor Administrative Agent, without any further
act, deed or conveyance, all of the estate and title of, and upon any required
filing for record the successor Administrative Agent shall become fully vested
with all the estates, properties, rights, powers, trusts, duties, authority and
title of its predecessors; but any of such predecessors shall, nevertheless, on
the written request of the Secured Parties, any Grantor or any successor
Administrative Agent, execute and deliver an instrument transferring to such
successor Administrative Agent all the estates, properties, rights, powers,
trusts, duties, authority and title of such predecessor hereunder and shall
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deliver all securities and moneys held by it to such successor Administrative
Agent. Should any deed, conveyance or other instrument in writing from any
Grantor be required by any successor Administrative Agent for more fully and
certainly vesting in such successor Administrative Agent the estates,
properties, rights, powers, trusts, duties, authority and title vested or
intended to be vested in the predecessor Administrative Agent, any and all such
deeds, conveyances and other instruments in writing shall, on request of such
successor Administrative Agent, be so executed, acknowledged and delivered.
(d) Any required filing for record of the instrument appointing a
successor Administrative Agent as hereinabove provided shall be at the expense
of the Grantors. The resignation of any Administrative Agent and the instrument
or instrument removing any Administrative Agent, together with all other
instruments, deeds and conveyances provided for in this Agreement shall, if
required by law, be forthwith recorded, registered and filed by and at the
expense of the Grantors, wherever this Agreement is recorded, registered and
filed.
SECTION 9.7 Status of Successors to the Administrative Agent. Every
successor to the Administrative Agent appointed pursuant to Section 9.6 of this
Agreement and every corporation resulting from a merger or consolidation
referred to in Section 9.8 of this Agreement shall be a bank or trust company in
good standing and having power so to act, incorporated under the laws of the
United States or any state thereof or the District of Columbia, and having its
principal corporate trust office within the forty-eight (48) contiguous States,
and shall also have capital, surplus and undivided profits of not less than
$500,000,000.
SECTION 9.8 Merger of the Administrative Agent. Any corporation into
which the Administrative Agent shall be merged, or with which it shall be
consolidated, or any corporation resulting from any merger or consolidation to
which the Administrative Agent shall be a party, shall be the Administrative
Agent under this Agreement without the execution or filing of any paper or any
further act on the part of the parties hereto.
SECTION 9.9 Additional Co-Administrative Agents; Separate
Administrative Agents.
(a) If at any time or times it shall be necessary or prudent in order
to conform to any law of any jurisdiction in which any of the Collateral shall
be located, or the Administrative Agent shall be advised by counsel,
satisfactory to it, that it is so necessary or prudent in the interest of the
Secured Parties or the Administrative Agent shall deem it desirable for its own
protection in the performance of its duties hereunder, the Administrative Agent
and the Grantors shall execute and deliver all instruments and agreements
necessary or proper to constitute another bank or trust company, or one or more
Persons approved by the Administrative Agent and the Grantors either to act as
co-Administrative Agents of all or any of the Collateral, jointly with the
Administrative Agent originally named herein or any successor or successors, or
to act as separate Administrative Agent or Administrative Agents of any such
property. Notwithstanding the foregoing sentence, the Administrative Agent shall
not be responsible
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for ascertaining whether or not it is at any time necessary or prudent to
constitute another bank or trust company or any other Person(s) to act as
co-Administrative Agent or a separate Administrative Agent. In the event the
Grantors shall not have joined in the execution of such instruments and
agreements within ten (10) days after the receipt of a written request from the
Administrative Agent so to do, or in case an Event of Default shall have
occurred and be continuing, the Administrative Agent may act under the foregoing
provisions of this Section 9.9 without the concurrence of the Grantors and each
Grantor hereby irrevocably appoints the Administrative Agent as its agent and
attorney to act for it under the foregoing provisions of this Section 9.9 in
either of such contingencies.
(b) Every separate Administrative Agent and every co-Administrative
Agent, other than any Administrative Agent which may be appointed as successor
to Bankers Trust Company, as Administrative Agent, shall, to the extent
permitted by law, be appointed and act and be such, subject to the following
provisions and conditions, namely:
(i) all rights, powers, duties and obligations conferred upon
the Administrative Agent in respect of the custody, control and
management of moneys, papers or securities shall be exercised solely by
Bankers Trust Company, as Administrative Agent, or its successors as
the Administrative Agent hereunder;
(ii) all rights, powers, duties and obligations conferred or
imposed upon the Administrative Agent hereunder shall be conferred or
imposed and exercised or performed by the Administrative Agent and such
separate Administrative Agent or separate Administrative Agents or
co-Administrative Agent or co-Administrative Agents, except to the
extent that under any law of any jurisdiction in which any particular
act or acts are to be performed the Administrative Agent shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such separate Administrative Agent or separate
Administrative Agents or co-Administrative Agent or co-Administrative
Agents;
(iii) no power (a) given hereby to any co-Administrative Agent,
co-Administrative Agents or separate Administrative Agents, or (b)
which is provided hereby to any co-Administrative Agent,
co-Administrative Agents or separate Administrative Agents, may be
exercised by any such co-Administrative Agent or co-Administrative
Agents or separate Administrative Agents, except jointly with, or with
the consent in writing of, the Administrative Agent, anything herein
contained to the contrary notwithstanding;
(iv) no Administrative Agent or co-Administrative Agent
hereunder shall be personally liable by reason of any act or omission
of any other Administrative Agent or co-Administrative Agent hereunder;
and
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(v) the Grantors and the Administrative Agent, at any time by
an instrument in writing, executed by them jointly, may accept the
resignation of or remove any such separate Administrative Agent or
co-Administrative Agent, and in that case, by an instrument in writing
executed by the Grantors and the Administrative Agent jointly, may
appoint a successor to such separate Administrative Agent or
co-Administrative Agent, as the case may be, anything herein contained
to the contrary notwithstanding. In the event that the Grantors shall
not have joined in the execution of any such instrument within ten (10)
days after the receipt of a written request from the Administrative
Agent so to do, or in case an Event of Default shall have occurred and
be continuing, the Administrative Agent shall have the power to accept
the resignation of or remove any such separate Administrative Agent or
co-Administrative Agent and to appoint a successor without the
concurrence of the Grantors, each of the Grantors hereby irrevocably
appointing the Administrative Agent its agent and attorney to act for
it in such connection in either of such contingencies. In the event
that the Administrative Agent shall have appointed a separate
Administrative Agent or separate Administrative Agent or
co-Administrative Agent or co-Administrative Agent as above provided,
it may at any time, by an instrument in writing, accept the resignation
of or remove any such separate Administrative Agent or
co-Administrative Agent, the successor to any such separate
Administrative Agent or co-Administrative Agent to be appointed by the
Grantors and the Administrative Agent, or by the Administrative Agent
alone, as hereinabove provided in this Section 9.9.
SECTION 10
RELEASE OF COLLATERAL
SECTION 10.1 Release.
When all the Secured Debt has been indefeasibly paid in full (other
than, as of any date, contingent and unliquidated obligations not due or payable
hereunder and which, pursuant to the terms hereof or the Credit Agreement,
survive the termination hereof and thereof and the repayment of the Secured
Debt), this Agreement shall terminate. Upon termination hereof or any release of
Collateral in accordance with the provisions of the Credit Agreement, the
Administrative Agent shall, promptly upon the request and at the sole cost and
expense of the Grantors, forthwith assign, transfer and deliver to Grantor,
against receipt and without recourse to or warranty by the Administrative Agent,
such of the Collateral to be released (in the case of a release) as may be in
possession of the Administrative Agent and as shall not have been sold or
otherwise applied pursuant to the terms hereof, and, with respect to any other
Collateral, proper documents and instruments (including UCC-3 termination
statements or releases) acknowledging the termination hereof or the release of
such Collateral, as the case may be.
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SECTION 11
MISCELLANEOUS
SECTION 11.1 Amendments, Supplements and Waivers. No amendment,
modification supplement, termination or waiver of or to any provision hereof,
nor consent to any departure by any Grantor therefrom, shall be effective unless
the same shall be made in accordance with the terms of the Credit Agreement and
unless in writing and signed by the Administrative Agent and each Grantor. Any
amendment, modification or supplement of or to any provision hereof or any
waiver of any provision hereof shall be effective only in the specific instance
and for the specific purpose for which made or given. Except where notice is
specifically required by this Agreement or any other Collateral Document, no
notice to or demand on any Grantor in any case shall entitle any Grantor to any
other or further notice or demand in similar or other circumstances.
SECTION 11.2 Notices. All notices, requests, demands and other
communications provided for or permitted hereunder shall be in writing
(including telex and telecopy communication), shall be sent by mail, telex,
telecopier or hand delivery and, except as otherwise provided in this Agreement,
the cost thereof shall be for the sole account of the Grantors and shall be
added to the Secured Debt:
(a) if to any Grantor, c/o the Borrower, at:
WestPoint Xxxxxxx Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copy to:
Law Department
WestPoint Xxxxxxx Inc.
000 Xxxx Xxxxx Xxxxxx
Post Xxxxxx Xxx 00
Xxxx Xxxxx, Xxxxxxx 00000
(b) if to the Administrative Agent, at:
Bankers Trust Company
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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All such notices, requests, demands and communications, shall, to be effective
hereunder, be in writing or by a telecommunications device capable of creating a
written record and shall be deemed to have been given or made when delivered by
hand or five (5) days after its deposit in the mail, first class or air postage
prepaid or in the case of notice by such a telecommunication device, when
properly transmitted; provided, however, that any notice, request, demand or
other communication to the Administrative Agent shall not be effective until
received.
SECTION 11.3 Headings. Section, subsection and other headings used in
this Agreement are for convenience only and shall not affect the construction of
this Agreement.
SECTION 11.4 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 11.5 Dealings with the Borrower.
(a) Upon any application or demand by any Grantor to the Administrative
Agent to take or permit any action under any of the provisions of any Collateral
Document, such Grantor shall furnish to the Administrative Agent a certificate
signed by an Authorized Officer of the Borrower and such Grantor and, if
requested by the Administrative Agent, an opinion of counsel to the Grantor
stating that all conditions precedent, if any, provided for in any Collateral
Document relating to the proposed action have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of any Collateral Document,
relating to such particular application or demand no additional certificate or
opinion need be furnished.
(b) Any opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate of Authorized Officers of the Borrower and
any Grantor delivered to the Administrative Agent.
SECTION 11.6 Claims Against the Administrative Agent. Any claims or
causes of action which the Secured Parties or the Grantors shall have against
the Administrative Agent shall survive the termination of this Agreement and the
release of the Collateral hereunder.
SECTION 11.7 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and shall inure to the
benefit of the Secured Parties and their respective successors and assigns, and
nothing herein or in any other Collateral
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Document is intended or shall be construed to give any other Person any right,
remedy or claim under, to or in respect of any Collateral Document or the
Collateral.
SECTION 11.8 Conflict with Other Agreements. The parties agree that
in the event of any conflict between the provisions of this Agreement and the
provisions of any of the other Collateral Documents the provisions of this
Agreement shall control.
SECTION 11.9 Governing Law. THE PROVISIONS OF THIS AGREEMENT SETTING
FORTH THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE ADMINISTRATIVE
AGENT HEREUNDER AND ALL OTHER PROVISIONS HEREOF SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW
PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK, EXCEPT WITH RESPECT TO THE
PERFECTION AND ENFORCEMENT OF SECURITY INTERESTS AND LIENS IN OTHER
JURISDICTIONS, WHICH SHALL BE GOVERNED BY THE LAWS OF THOSE JURISDICTIONS.
SECTION 11.10 Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same instrument.
SECTION 11.11 Consent to Jurisdiction; Waiver of Jury Trial. Each
Grantor hereby irrevocably submits to the nonexclusive jurisdiction of any
United States Federal or New York State court sitting in New York City in any
action or proceeding arising out of or relating to this Agreement or any other
Collateral Document, and each Grantor hereby irrevocably agrees that all claims
in respect of such action or proceeding may be heard and determined in any such
United States Federal or New York State court and each Grantor irrevocably
waives any objection, including, without limitation, any objection to the laying
of venue or based on the grounds of forum non conveniens, which it may now or
hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions. As a method of service, each Grantor also irrevocably
consents to the service of any and all process in any such actions or proceeding
brought in any court in or of the State of New York by the delivery of copies of
such process to such Grantor, at its address specified in Section 11.2 or by
certified mail direct to such address, such service to be effective upon such
delivery or 5 days after such mailing. EACH GRANTOR AND THE ADMINISTRATIVE AGENT
HEREBY WAIVES ALL RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER COLLATERAL DOCUMENT OR ANY MATTER
ARISING HEREUNDER OR THEREUNDER.
SECTION 11.12 Intercreditor Agreement. Notwithstanding any provision
to the contrary set forth herein, the enforcement of certain of the rights,
interests and remedies existing on behalf of or available to the Administrative
Agent or any Secured Party is expressly subject to the terms and conditions of
the Intercreditor Agreement for so long as the Intercreditor Agreement shall be
in effect.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
WESTPOINT XXXXXXX INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President-Finance and
Chief Financial Officer
WESTPOINT XXXXXXX STORES INC.
(f/k/a WestPoint Pepperell Stores, Inc.)
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
X.X. XXXXXXX & CO., INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
X.X. XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
WESTPOINT XXXXXXX INC. I
(f/k/a West Point-Pepperell Enterprises, Inc.)
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
39
XXXXXXXXX INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
ALAMAC HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
40
BANKERS TRUST COMPANY,
as Administrative Agent
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
