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EXHIBIT 10.2
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of February 7, 2000, by and between
XXXXXXXX BRANDS INTERNATIONAL, INC., a New Jersey corporation (the "BORROWER"),
and BANKBOSTON, N.A., as Collateral Agent for the benefit of the Secured
Creditors (as defined in the RECITALS hereto) (the "COLLATERAL AGENT").
RECITALS
A. The Borrower has entered into that certain Credit Agreement, dated
as of December 31, 1996, as amended through the date hereof (as further amended,
modified, extended, renewed, replaced, restated, supplemented, restructured
and/or refinanced from time to time, the "CREDIT AGREEMENT"), by and among the
Borrower, the financial institutions which are now, or in accordance with
SECTION 12.2 thereof hereafter become, parties thereto (collectively, the
"LENDERS"), BankBoston, N.A., as Administrative Agent and Collateral Agent for
the benefit of the Co-agents and Lenders, and BankBoston, N.A., ING Bank N.V.,
and PNC Bank, National Association, as Co-agents for the Lenders (the
"CO-AGENTS", and collectively with the Lenders, the Administrative Agent and the
Collateral Agent, the "SECURED CREDITORS").
B. It is a condition precedent of the entry by certain of the Secured
Creditors into Amendment No. 4 to Credit Agreement, dated as of the date hereof,
and of each Credit Extension made or to be made on or after the date hereof
under the Credit Agreement and the other Loan Documents that the Borrower shall
have executed and delivered this Agreement.
NOW, THEREFORE, in consideration of the benefits accruing to the
Borrower, the receipt and sufficiency of which are hereby acknowledged, the
Borrower hereby makes the following representations and warranties to the
Collateral Agent for the benefit of the Secured Creditors and hereby covenants
and agrees with the Collateral Agent for the benefit of the Secured Creditors as
follows:
ARTICLE I
DEFINITIONS
1.1. CERTAIN TERMS. The following terms when used in this Agreement,
including the introductory paragraph and RECITALS hereto, shall, except where
the context otherwise requires, have the following meanings:
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"ACCOUNTS RECEIVABLE" means any "ACCOUNT" as such term is defined in the UCC,
now or hereafter owned by the Borrower relating to the Borrower's rights to
payment for goods sold or leased or services performed by the Borrower in its
ordinary course of business, whether now in existence or arising from time to
time hereafter, including, without limitation, rights evidenced by an account,
note, contract, security agreement, chattel paper or other evidence of
indebtedness or security, and all rights of the Borrower now existing or from
time to time hereafter created or arising under the Commission Sales Agreements,
together with: (a) all security pledged, assigned, hypothecated or granted to or
held by the Borrower to secure the foregoing; (b) all of the Borrower's right,
title and interest in and to any goods, the sale of which gave rise thereto; (c)
all guarantees, endorsements and indemnifications on, or of, any of the
foregoing; (d) all powers of attorney for the execution of any evidence of
indebtedness or security or other writing in connection therewith; (e) all
books, records, ledger cards, and invoices relating thereto; (f) all evidences
of the filing of financing statements and other statements and the registration
of other instruments in connection therewith and amendments thereto, notices to
other creditors or secured parties and certificates from filing or other
registration officers; (g) all credit information, reports and memoranda
relating thereto; and (h) all other writings related in any way to the
foregoing.
"AGENCY ACCOUNT" means any depository, securities, investment or other
similar account maintained by the Borrower with an Agency Account Institution,
the funds or other assets from which shall be subject to transfer, upon the
terms contained in the Agency Account Agreement applicable thereto, to the
Collateral Agent for the benefit of the Secured Creditors.
"AGENCY ACCOUNT AGREEMENT" is defined in SECTION 4.6.
"AGENCY ACCOUNT INSTITUTION" means any financial institution (other
than the Collateral Agent) which (a) receives deposits directly or indirectly
(whether as the result of an interim concentration of funds in depository
accounts or otherwise) or cash equivalents from or for the account of the
Borrower and (b) is a party to and bound by an Agency Account Agreement as
contemplated and provided by SECTION 4.6.
"AGREEMENT" means this Security Agreement, as amended, supplemented or
otherwise modified from time to time.
"BORROWER" is defined in the introductory paragraph hereto.
"CBCNA" means Xxxxxxxx Brands Company, North America, a Delaware
corporation.
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"XXX" xxxxx Xxxxxxxx (Xxxxxx) Inc., formerly known as Xxxxxxxx Brands
Limited, a Canadian corporation.
"XXXXXXXX AFFILIATES" means, collectively, CBCNA, CCI and CIL.
"XXXXXXXX AGREEMENTS" means, collectively, the Commission Sales
Agreements and the Supply Agreement.
"XXXXXXXX SOUTH PACIFIC LOAN AGREEMENT" is defined in CLAUSE (c) of
SECTION 2.1.
"CIL" means Xxxxxxxx International Limited, a Bermuda corporation.
"CO-AGENTS" is defined in the first paragraph of the RECITALS hereto.
"COLLATERAL AGENT" is defined in the introductory paragraph hereto.
"COMMISSION SALES AGREEMENT (CANADA)" means that certain letter
agreement relating to the sales and distribution of bananas in Canada, dated
April 29, 1980, by and between CCI and the Borrower, as the same may be amended,
modified, supplemented or restated from time to time.
"COMMISSION SALES AGREEMENT (UNITED STATES)" means that certain U.S.
Sale of Fruit Commission Sales Agreement, dated as of February 1, 2000, by and
between CBCNA and the Borrower, as the same may be amended, modified,
supplemented or restated from time to time.
"COMMISSION SALES AGREEMENTS" means, collectively, the Commission Sales
Agreement (Canada) and the Commission Sales Agreement (United States).
"CONSENT TO ASSIGNMENT" is defined in SECTION 4.5.
"CONTRACT RIGHTS" is defined in CLAUSE (a) of SECTION 2.1.
"CREDIT AGREEMENT" is defined in the first paragraph of the RECITALS
hereto.
"EQUIPMENT" is defined in SECTION 3.5.
"EXCLUDED PROPERTY" is defined in SECTION 2.2.
"LENDERS" is defined in the first paragraph of the RECITALS hereto.
"RELATED CONTRACTS" is defined in CLAUSE (a) of SECTION 2.1.
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"SECURED CREDITORS" is defined in the first paragraph of the RECITALS
hereto.
"SECURITY AGREEMENT COLLATERAL" is defined in SECTION 2.1.
"SUPPLY AGREEMENT" means that certain Banana Supply Agreement, dated as
of January 1, 2000, by and between CIL and the Borrower, as the same may be
amended, modified, supplemented or restated from time to time.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
1.2. CREDIT AGREEMENT DEFINITIONS. Unless otherwise defined herein or
the context otherwise requires, terms used in this Agreement, including the
introductory paragraph and RECITALS hereto, that are defined in the Credit
Agreement have the meanings given to such terms in the Credit Agreement.
1.3. UCC DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, terms for which meanings are provided in the UCC are used in
this Agreement, including the introductory paragraph and RECITALS hereto, with
such meanings.
1.4. GENERAL PROVISIONS RELATING TO DEFINITIONS. Terms for which
meanings are defined in this Agreement shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The term
"INCLUDING" means including, without limiting the generality of any description
preceding such term. Each reference herein to any Person shall include a
reference to such Person's permitted successors and assigns. References to any
Instrument in this Agreement refer to such Instrument as originally executed or,
if subsequently amended or supplemented from time to time, as so amended or
supplemented and in effect at the relevant time of reference thereto.
ARTICLE II
SECURITY INTEREST
2.1. GRANT OF SECURITY INTEREST. The Borrower hereby pledges and
assigns as collateral to the Collateral Agent for the benefit of the Secured
Creditors, and hereby grants to the Collateral Agent, for the benefit of the
Secured Creditors, a continuing security interest in and to, all of its right,
title and interest in and to all of the following Property, wheresoever located,
whether now owned or hereafter acquired, created, arising or existing (all of
such Property being collectively called the "SECURITY AGREEMENT COLLATERAL"):
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(a) all Accounts Receivable, the Xxxxxxxx Agreements, any
other contracts, contract rights, chattel paper, documents,
instruments, general intangibles, and other obligations and rights of
the Borrower of any kind, in each case relating to the Accounts
Receivable, including all of the following:
(i) all rights and remedies in and to all Instruments
securing or otherwise relating to any Accounts Receivable, the
Xxxxxxxx Agreements, any other contracts, contract rights,
chattel paper, documents, instruments, general intangibles,
and other obligations in each case relating to the Accounts
Receivable; and
(ii) all Instruments evidencing any of the foregoing
Accounts Receivable, the Xxxxxxxx Agreements, any other
contracts, contract rights, chattel paper, documents,
instruments, general intangibles, and other agreements, or
other obligations in each case relating to the Accounts
Receivable (all such Instruments being collectively called the
"RELATED CONTRACTS");
(any and all such Accounts Receivable, Xxxxxxxx Agreements, other
contracts, contract rights, chattel paper, documents, instruments,
general intangibles and other obligations, Related Contracts and other
Property described in this CLAUSE (a) being collectively called the
"CONTRACT RIGHTS");
(b) all claims, demands, judgments, rights, choses in action
and equities relating to the Accounts Receivable and other Contract
Rights, credits, bank accounts, cash on hand and in banks, lock boxes
and other post office boxes;
(c) all rights of the Borrower to receive payment under that
certain Loan Agreement, by and between Xxxxxxxx Brands South Pacific
Ltd. and the Borrower, dated as of June 24, 1998 (the "XXXXXXXX SOUTH
PACIFIC LOAN AGREEMENT");
(d) all Agency Accounts;
(e) all books, records, writings, data bases, information and
other Property (OTHER THAN EXCLUDED PROPERTY) relating to, evidencing,
embodying or incorporating any of the foregoing Security Agreement
Collateral; and
(f) all products, royalties, rents, issues, profits, returns,
income and proceeds of or rights with respect to any and all of the
foregoing Security Agreement Collateral, including proceeds which
constitute Property of the
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types described in CLAUSES (A) through (E) and, to the extent not
otherwise included, all payments under any indemnity, warranty or
guaranty payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Security Agreement Collateral.
2.2. EXCLUDED PROPERTY. Notwithstanding anything in this Agreement or
in any of the other Collateral Documents to the contrary, the term "SECURITY
AGREEMENT COLLATERAL" shall not include, and the Collateral Agent shall not have
any security interests in or Liens upon:
(i) any Property which the Borrower and the
Collateral Agent shall have agreed, in a writing signed by
both parties identifying such Property, is not subject to the
security interests and Liens created by the Borrower in favor
of the Collateral Agent;
(ii) any Property consisting of (A) the Equity
Interests now owned or hereafter acquired by the Borrower in
any of its direct Subsidiaries, except for the Borrower's
Equity Interests in Friday and any Xxxxxxxx South Pacific
Equity that the Borrower shall own or from time to time
acquire, (B) the Equity Interests of the Borrower in Xxxxxxxxx
and Securities Transfer, or (C) any Note (or other
Indebtedness) issued by Xxxxxxxxx or Securities Transfer, or
by any direct or indirect Subsidiary of the Borrower to the
Borrower, other than the Xxxxxxxx South Pacific Note, the
Xxxxxxxx South Pacific Loan Agreement and the Friday Note;
(iii) any lease payments, lease rights, insurance
proceeds or tax refunds that may be received by the Borrower
from time to time; or
(iv) any Accounts Receivable payable by Xxxxxxxxx or
Securities Transfer, or by any direct or indirect Subsidiary
of the Borrower to the Borrower, other than any amounts
payable under the Xxxxxxxx Agreements or the Xxxxxxxx South
Pacific Loan Agreement.
The defined terms "EQUITY INTEREST", "XXXXXXXX SOUTH PACIFIC EQUITY",
"XXXXXXXXX", "SECURITIES TRANSFER", "NOTE", "XXXXXXXX SOUTH PACIFIC NOTE", and
"FRIDAY NOTE" used in this SECTION 2.2 shall have the meanings given thereto in
the Pledge Agreement. The Property identified and described in CLAUSES (i)
through (iv) above as not included in the Collateral shall be referred to herein
as the "EXCLUDED PROPERTY".
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2.3. SECURITY FOR OBLIGATIONS. This Agreement is made by Borrower for
the benefit of the Secured Creditors in order to secure the full and prompt
payment when due (whether at stated maturity, by acceleration or otherwise) of
all of the Obligations. Notwithstanding anything in the Collateral Documents to
the contrary, the aggregate amount of all of the Obligations from time to time
secured by the Collateral Documents shall not at any time exceed the Maximum
Permitted Amount.
2.4. BORROWER REMAINS LIABLE, ETC. Anything herein to the contrary
notwithstanding:
(a) the Borrower shall remain liable under all Instruments
included in the Security Agreement Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed;
(b) the exercise by the Collateral Agent of any rights
hereunder shall not release the Borrower from any of its duties or
obligations under any Instruments included in the Security Agreement
Collateral; and
(c) the Collateral Agent shall not have any obligation or
liability under any Instruments included in the Security Agreement
Collateral by reason of this Agreement, nor shall the Collateral Agent
be obligated to perform any of the obligations or duties of the
Borrower thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder.
2.5. SECURITY INTERESTS ABSOLUTE. All rights and security interests of
the Collateral Agent granted hereunder, and all obligations of the Borrower
hereunder, shall be absolute and unconditional irrespective of, and shall not be
impaired or affected by:
(a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other Instrument relating to
any thereof or to any of the Obligations;
(b) any change in the existence, organization, structure or
ownership of the Borrower or of any of its Subsidiaries or any
Bankruptcy or Insolvency Proceeding affecting any such Person or any
Property of any such Person or any resulting release or discharge of
any of the Obligations contained in the Credit Agreement or any other
Loan Documents;
(c) the failure of the Collateral Agent:
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(i) to assert any claim or demand or to enforce any
right or remedy against the Borrower or any other Persons
under any provisions of the Credit Agreement or any other Loan
Documents or any other agreement or Instrument relating to any
thereof or under any Applicable Law, or
(ii) to exercise any right or remedy against any
Collateral;
(d) any change in the time, manner or place of payment of, or
in any other term of all or any Obligations, or any other compromise,
renewal, extension, acceleration or release with respect thereto or
with respect to the Collateral, or any other amendment to, rescission,
waiver or other modification of, or any consent to any departure from
any of the terms, of the Credit Agreement, any other Loan Document or
any other Instrument relating to any thereof;
(e) any increase, reduction, limitation, impairment or
termination of the Obligations for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and any defense
or set-off, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity,
compromise or unenforceability of, or any other event or occurrence
affecting, any of the Obligations (and the Borrower hereby waives any
right to or claim of any such defense or set-off, counterclaim,
recoupment or termination);
(f) any sale, exchange, release, surrender or non-perfection
of any of the Security Agreement Collateral or any other Collateral, or
any release or amendment or waiver of, or any consent to any departure
from, any guaranty or collateral held by the Collateral Agent securing
or guaranteeing all or any of the Obligations;
(g) any defense, set-off or counterclaim which may at any time
be available to or be asserted by the Borrower against the Collateral
Agent; or
(h) any other circumstances which might otherwise constitute a
suretyship or other defense available to, or a legal or equitable
discharge of, the Borrower.
2.6. ATTORNEY-IN-FACT. The Borrower hereby irrevocably appoints the
Collateral Agent, and any officer or agent thereof, the Borrower's
attorney-in-fact, with full authority in the place and stead of the Borrower and
in the name of the Borrower or otherwise, from time to time in the Collateral
Agent's discretion, at any time and from time to time during the continuance of
an Event of Default, to take any and all action and to execute any Instrument or
other assurance which the
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Collateral Agent may deem reasonably necessary or advisable to accomplish the
purposes of this Agreement (subject to the rights of the Borrower under SECTION
4.2), including, without limitation:
(a) to ask, demand, collect, xxx, recover, compromise,
receive, and give acquittances and receipts, for moneys due or to
become due under or in respect of any of the Security Agreement
Collateral;
(b) to receive, endorse and collect any drafts or other
Instruments and chattel paper in connection with CLAUSE (a);
(c) to execute and do all such assurances, acts and things
which the Borrower ought to do under the covenants and provisions of
this Agreement;
(d) to take any and all such actions as the Collateral Agent
may, in its reasonable discretion, determine to be necessary or
advisable for the purpose of maintaining, preserving or protecting the
security constituted by this Agreement or any of the rights, remedies,
powers or privileges of the Collateral Agent under this Agreement;
(e) generally, in the name of the Borrower or in the name of
the Collateral Agent, to exercise all or any of the powers, authorities
and discretions conferred on or reserved to the Collateral Agent
pursuant to this Agreement; and
(f) to file such financing statements with respect hereto, or
a photocopy of this Agreement in substitution for a financing
statement, as the Collateral Agent may deem appropriate.
The Borrower hereby ratifies all that the Collateral Agent shall do or cause to
be done by virtue hereof. The Borrower hereby acknowledges, consents, and agrees
that the power of attorney granted to the Collateral Agent pursuant to this
SECTION 2.6 is irrevocable and coupled with an interest and shall terminate only
upon termination in full of all of the Commitments and payment in full and in
cash of all of the Obligations.
2.7. PROTECTION OF COLLATERAL. The Collateral Agent may from time to
time, at its option, perform any act which the Borrower shall have agreed
hereunder to perform and which the Borrower shall fail to perform after being
requested in writing to so perform (it being understood that no such request
need be given during the continuance of any Event of Default), and the
Collateral Agent may from time to time take any other action which the
Collateral Agent reasonably deems necessary for the maintenance, preservation or
protection of any of the Security Agreement Collateral or of the security
interests therein. The Collateral Agent will
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exercise reasonable care in the custody and preservation of the Security
Agreement Collateral in its possession.
2.8. COLLATERAL AGENT HAS NO DUTY. The powers conferred on the
Collateral Agent hereunder are solely to protect its interest in the Security
Agreement Collateral and shall not impose any duty upon it to exercise any such
powers. Except as provided in SECTION 2.7, the accounting for moneys actually
received by it hereunder and other duties imposed by the UCC upon secured
creditors (unless otherwise modified hereby), the Collateral Agent shall have no
duty as to any Security Agreement Collateral or responsibility for taking any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Security Agreement Collateral.
2.9. CONTINUING SECURITY INTERESTS; TERMINATION OF SECURITY INTERESTS.
This Agreement has created and shall create continuing security interests in all
of the Security Agreement Collateral and shall:
(a) remain in full force and effect until the latest to occur
of the termination of all of the Commitments of the Secured Creditors
under the Credit Agreement and all other Loan Documents, the payment in
full of the unpaid principal of all of the Loans, the payment in full
or (as the case may be) the termination of all Letter of Credit
Outstandings, or the payment in full in cash of all the other
Obligations;
(b) be binding upon the Borrower and its successors and
assigns (PROVIDED that the Borrower may not assign any of its
obligations hereunder without the prior written consent of the
Collateral Agent); and
(c) inure to the benefit of the Collateral Agent and its
successors, transferees and assigns.
Upon the latest to occur of the termination of all of the Commitments of the
Secured Creditors under the Credit Agreement and all other Loan Documents, the
payment in full of the unpaid principal of all of the Revolving Loans, the
payment in full or (as the case may be) the termination of all Letter of Credit
Outstandings, or the payment in full in cash of all of the Obligations, the
security interests granted hereby by the Borrower shall automatically terminate
and all rights to the Security Agreement Collateral of the Borrower shall revert
to the Borrower. Upon any such termination of the security interests granted
hereby, the Collateral Agent will, at the sole expense of the Borrower, promptly
execute and deliver to the Borrower such Instruments and other assurances as the
Borrower shall reasonably request to evidence such termination, including
properly completed UCC-3 Financing Statements.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Collateral Agent as set
forth in this ARTICLE III.
3.1. LOCATIONS. As of the date hereof, the chief place of business and
chief executive offices of the Borrower and each of the Xxxxxxxx Affiliates and
the offices where the Borrower and each of the Xxxxxxxx Affiliates keeps its
respective records concerning its Security Agreement Collateral are specified in
ITEM A of EXHIBIT A. As of the date hereof, no Security Agreement Collateral is
located at any location other than those locations specified in ITEM A of
EXHIBIT A. As of the date hereof, the Borrower has accounts containing cash,
cash equivalents, securities and other investments only with those institutions
listed on ITEM B of EXHIBIT A.
3.2. OWNERSHIP, POSSESSION, ETC. As of the date hereof, the Borrower
owns its Security Agreement Collateral free and clear of all Liens, EXCEPT (a)
for Liens from time to time permitted by the Loan Documents, and (b) as
otherwise provided or contemplated by the Credit Agreement. No effective
financing statements or other Security Instruments similar in effect covering
all or any part of the Security Agreement Collateral of the Borrower are on file
as of the date hereof in any recording office, except such as may have been
filed in favor of the Collateral Agent relating to this Agreement and except
such as are identified in ITEM C of EXHIBIT A or are from time to time permitted
under the Loan Documents. The Borrower does no business in the United States as
of the date hereof under any trade names other than those listed in ITEM D of
EXHIBIT A. No material item of Security Agreement Collateral consists of chattel
paper which evidences Contract Rights, and no item of Security Agreement
Collateral is evidenced by a promissory note or other Instrument (other, in any
case, than checks or drafts received in the ordinary course of business and
other than the Collateral pledged pursuant to the Pledge Agreement).
3.3. CONTRACTS, ETC. Each of the material Related Contracts, including
the Xxxxxxxx Agreements, and other contracts (and all agreements and contract
rights embodied therein), which constitutes Security Agreement Collateral has
been, to the knowledge of the Borrower, duly authorized, executed and delivered
by the parties thereto, has not been amended or modified in any manner which
would have a Materially Adverse Effect, is in full force and effect, and is
binding upon and enforceable against the parties thereto in accordance with its
terms, subject, as to enforcement, only to bankruptcy, insolvency,
reorganization, moratorium or other similar Applicable Laws affecting the
enforceability of the rights of creditors generally. There exists no material
default or other condition which, after notice or lapse of time, would become a
material default under any such Related Contract
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(including any of the Xxxxxxxx Agreements) or other contract, which default has
had or could reasonably be expected to have a Materially Adverse Effect.
3.4. PERFECTION, ETC. This Agreement, together with the filing of the
UCC-1 Financing Statements signed by the Borrower and delivered to the
Collateral Agent on or prior to the date hereof, will create, upon the filing of
the UCC-l Financing Statements in the appropriate filing offices, a valid
security interest in substantially all the Security Agreement Collateral as to
which a security interest may be perfected by filing UCC-1 Financing Statements.
This Agreement together with the delivery of fully executed Agency Account
Agreements will create a valid security interest in the Agency Accounts. The
security interest created hereby (except as to any Security Agreement Collateral
in which another Person has a prior security interest pursuant to a Lien
permitted under the Loan Documents) is or shall be a first-priority security
interest, to the extent that such security interest may be perfected and such
first-priority status be established by the filing of UCC-1 Financing Statements
or the entry by the Borrower, the Collateral Agent, and the other parties
thereto into Agency Account Agreements. No authorization, approval or other
action by and no notice to or filing with any Governmental Authority is required
either for the grant by the Borrower of the security interest created hereby or
for the execution, delivery or performance of this Agreement by the Borrower or
for the perfection of such security interests created hereby in any Security
Agreement Collateral as to which a security interest may be perfected by the
filing of UCC-1 Financing Statements, EXCEPT for:
(i) the filing of the UCC-1 Financing Statements
signed by the Borrower and delivered to the Collateral Agent
on or prior to the date hereof;
(ii) with respect to the exercise by the Collateral
Agent of its rights and remedies with respect to contracts
pursuant to which the United States government (or any of its
agencies, departments, or instrumentalities) is the obligor,
compliance with the notice provisions of the Assignment of
Claims Act of 1940 or comparable provisions of State law;
(iii) with respect to the exercise by the Collateral
Agent of its rights and remedies with respect to any
securities, compliance with the federal and state laws
affecting the offering and sale of securities; and
(iv) the timely filing of UCC continuation
statements.
3.5. EQUIPMENT. As of the date hereof, the SUM of (a) the Fair Market
Value of all computer hardware, computer software, office furniture and office
equipment (collectively, the "EQUIPMENT") owned by Borrower; PLUS (b) the Fair
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Market Value of Borrower's interest in any Equipment licensed or leased by
Borrower, is less than $7,500,000.
ARTICLE IV
COVENANTS
4.1. FURTHER ASSURANCES GENERALLY. The Borrower hereby covenants and
agrees that it will, from time to time at its own expense, promptly execute and
deliver all further Instruments and other assurances and take all further action
that may be necessary or reasonably desirable, or that the Collateral Agent may
reasonably request, in order to perfect and protect any security interests
purported to be granted by the Borrower under this Agreement or to enable the
Collateral Agent to exercise and enforce its rights and remedies hereunder with
respect to any of the Security Agreement Collateral. Without limitation of the
foregoing, the Borrower will, with respect to all of its following Property
constituting Security Agreement Collateral:
(a) at the request of the Collateral Agent at any time when
any Event of Default is continuing, immediately xxxx conspicuously each
chattel paper included in the Contract Rights, each Related Contract,
each Account Receivable and each of its records pertaining to Security
Agreement Collateral with a legend, in form and substance reasonably
satisfactory to the Collateral Agent, indicating that such Account
Receivable, document, chattel paper, Related Contract or Security
Agreement Collateral is subject to the security interests granted
hereby;
(b) at the written request of the Collateral Agent, if any
Account Receivable shall be evidenced by any Instruments, Securities or
chattel paper, promptly deliver and pledge to the Collateral Agent
hereunder such Instruments, Securities or chattel paper duly endorsed
and accompanied by duly executed Instruments of transfer or assignment
(other, in any case, than any checks or drafts received in the ordinary
course of business), all in form and substance reasonably satisfactory
to the Collateral Agent; and
(c) execute and file such financing or continuation
statements, or amendments thereto, and such other Instruments and
notices, as may be necessary or reasonably desirable, or as the
Collateral Agent may reasonably request, in order to perfect and
preserve the security interests granted or purported to be granted
hereby.
The Borrower hereby further authorizes the Collateral Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
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any part of the Security Agreement Collateral without the signature of the
Borrower where permitted by Applicable Law. A copy of this Agreement shall be
sufficient as a financing statement where permitted by Applicable Law. The
Borrower will furnish to the Collateral Agent from time to time statements and
schedules further identifying and describing the Security Agreement Collateral
and such other reports in connection with the Security Agreement Collateral as
the Collateral Agent may reasonably request, all in reasonable detail.
4.2. AS TO CONTRACT RIGHTS. The Borrower will, and will cause each of
the Xxxxxxxx Affiliates to, with respect to all of its Property constituting
Security Agreement Collateral:
(a) keep its chief place of business and chief executive
office and the offices where it keeps its records concerning the
Contract Rights, and all originals of all chattel paper which evidence
Contract Rights, at the location therefor specified in SECTION 3.1 or,
upon thirty (30) days' prior written notice to the Collateral Agent, at
such other locations as the Borrower or such Xxxxxxxx Affiliate may
desire; PROVIDED, HOWEVER, that all statements set forth in SECTION 3.4
shall be true and correct and all action reasonably required by the
Collateral Agent pursuant to SECTION 4.1 shall have been taken; and
(b) hold and preserve such records and chattel paper and
permit representatives of the Collateral Agent upon reasonable advance
written notice at any time during normal business hours to inspect and
make abstracts from such records and chattel paper.
Unless any Event of Default is continuing and the Collateral Agent has
instructed the Borrower otherwise, the Borrower shall, except as otherwise
provided by the Credit Agreement or by the Pledge Agreement, continue to
collect, at its own expense, all amounts due or to become due to the Borrower
under the Contract Rights, and the Borrower may adjust, settle or compromise the
amount or payment thereof, in the ordinary course of business, subject always to
the provisions contained in SECTION 4.5 hereof. In connection with such
collections, the Borrower may take such action as the Borrower may deem
necessary or advisable to enforce collection of the Contract Rights; PROVIDED,
HOWEVER, that the Collateral Agent shall have the right, at any time during the
continuance of any Event of Default, to communicate with account debtors in
order to verify with them, to the Collateral Agent's reasonable satisfaction,
the existence, amount and terms of any Accounts Receivable or other Contract
Rights, to notify the account debtors or obligors under any Accounts Receivable
or other Contract Rights of the assignment of such Accounts Receivable or other
Contract Rights to the Collateral Agent, and to direct such account debtors or
obligors to make payment of all amounts due or to become due to the Borrower
thereunder directly to the Collateral Agent (to such account of
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the Collateral Agent as the Collateral Agent shall reasonably designate) and,
upon such notification and at the expense of the Borrower, to enforce collection
of any such Accounts Receivable or other Contract Rights, and to adjust, settle
or compromise the amount or payment thereof, in the same manner and to the same
extent as the Borrower might have done. During the continuance of any Event of
Default and receipt (at any time while such Event of Default is continuing) by
the Borrower of notice from the Collateral Agent instructing the Borrower to
comply with the following provisions of this SECTION 4.2: (i) all amounts and
proceeds (including any Instruments) received by the Borrower in respect of any
Accounts Receivable or other Contract Rights shall be received in trust for the
benefit of the Collateral Agent hereunder, shall be segregated from other funds
of the Borrower, and shall be forthwith paid over to the Collateral Agent (to
such account of the Collateral Agent as the Collateral Agent shall designate) in
the same form as so received (with any necessary endorsements) to be held as
cash collateral and applied in accordance with SECTION 5.2; and (ii) the
Borrower will not, without the consent of the Collateral Agent, adjust, settle,
or compromise the amount or payment of any Accounts Receivable or other Contract
Rights, or release wholly or partly any account debtor or obligor thereof, or
allow any credit or discount thereon.
4.3. TRANSFERS AND OTHER LIENS.
(a) The Borrower hereby covenants and agrees that it will not
at any time:
(i) sell, assign (by operation of law or otherwise)
or otherwise dispose of any of its Security Agreement
Collateral, except (in any case) for Sales and other
dispositions of Property from time to time permitted by the
Loan Documents;
(ii) create or suffer to exist any Liens upon or with
respect to any of its Security Agreement Collateral, except
for (A) the security interests created by this Agreement, and
(B) any other Liens from time to time permitted by the Loan
Documents; or
(iii) create or suffer to exist, or cause or permit
CBCNA or CCI to create or suffer to exist, any Liens (other
than Liens arising by operation of Applicable Law) upon or
with respect to any fruit or other inventory transferred by
the Borrower to CBCNA or CCI pursuant to the Commission Sales
Agreements.
(b) The Borrower hereby covenants and agrees that it will
defend the right, title and interest of the Collateral Agent in and to
its Security Agreement Collateral and in and to all of the proceeds and
products thereof against the claims and demands of all other Persons.
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4.4. NOTICES. The Borrower hereby covenants and agrees that it will,
upon obtaining knowledge thereof, advise the Collateral Agent promptly, in
reasonable detail, (a) of any Lien made or asserted against any of its Security
Agreement Collateral (except for Liens from time to time permitted by the Loan
Documents to attach to such Security Agreement Collateral), (b) of any material
change outside of the ordinary course of business in the composition of its
Security Agreement Collateral, (c) of the occurrence of any other event which
would have a materially adverse effect on the aggregate value of its Security
Agreement Collateral or on the security interests created by it hereunder (it
being understood that Accounts Receivable may vary seasonally and otherwise,
based on pricing, supply and demand), (d) of any material default under, or of
any amendment, material modification, termination or cancellation of, any of the
Xxxxxxxx Agreements, and (e) of any other matters relating to its Security
Agreement Collateral that the Collateral Agent may from time to time reasonably
request in writing.
4.5. LIMITATION ON CHANGES TO THE XXXXXXXX AGREEMENTS, ETC.
(a) The Borrower hereby covenants and agrees that the Borrower
shall not at any time or times alter or permit to be altered in any
material respect:
(i) the way in which Accounts Receivable attributable
to North American banana sales are recorded, from the way in
which such Accounts Receivable are recorded on or about the
date hereof;
(ii) the basis (including, without limitation,
material terms and conditions, timing and frequency, manner
and the like) on which such Accounts Receivable are
transferred to and acquired by the Borrower, from the basis on
which such Accounts Receivables are so transferred and
acquired on or about the date hereof;
(iii) the present operating relationship between the
Borrower and CBCNA, as set forth in the Commission Sales
Agreement (United States) as in effect on the date hereof;
(iv) the present operating relationship between the
Borrower and CCI, as set forth in the Commission Sales
Agreement (Canada) as in effect on the date hereof; or
(v) the present operating relationship with respect
to fruit purchases for the North American market between the
Borrower and CIL, as set forth in the Supply Agreement as in
effect on the date hereof.
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(b) The Borrower covenants and agrees that the Borrower shall
not at any time or times amend, modify, terminate or cancel, or
otherwise cause or permit the amendment, modification, termination or
cancellation of, any of the Xxxxxxxx Agreements or any of the terms and
conditions of any of the Xxxxxxxx Agreements, without (in each case)
the prior written consent of the Collateral Agent.
(c) The Borrower will ensure that CBCNA will at all times
continue to act as exclusive agent and consignee for the Borrower with
respect to sales in the United States upon the terms and subject to the
conditions contained in the Commission Sales Agreement (United States)
as in effect on the date hereof. The Borrower will ensure that CCI will
at all times continue to act as exclusive agent and consignee for the
Borrower with respect to sales in Canada upon the terms and subject to
the conditions contained in the Commission Sales Agreement (Canada) as
in effect on the date hereof.
(d) During the continuation of any Event of Default, if and as
so requested by the Collateral Agent in writing, the Borrower will
cause CBCNA and CCI to make all payments that would otherwise be made
to the Borrower under the Commission Sales Agreements, directly to the
Collateral Agent for application by the Collateral Agent toward payment
of the Obligations pursuant to the Loan Documents. Any payments which
are received by the Borrower contrary to the provisions of this SECTION
4.5 shall be received in trust for the benefit of the Collateral Agent
and the other Secured Creditors, shall be segregated from other
Property or funds of the Borrower, and shall be forthwith paid over to
the Collateral Agent in the same form as so received (with any
necessary endorsements).
(e) During the continuation of any Event of Default, if and as
so requested by the Collateral Agent in writing, the Borrower will
cause each of the Xxxxxxxx Affiliates to treat the Collateral Agent as
the collateral assignee entitled to the direct benefit of all of rights
and interests of the Borrower under each of the Xxxxxxxx Agreements.
(f) The Borrower shall enter into, and shall cause each of
CBCNA, CCI and CIL to enter into, a consent to collateral assignment of
its respective Xxxxxxxx Agreement in substantially the form of EXHIBIT
C (each, a "CONSENT TO ASSIGNMENT").
(g) The Borrower shall not at any time or times take any
action, omit to take any action, enter into or terminate any contract,
or effect or permit any change in its corporate structure or that of
any of its
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Subsidiaries (whether by way of any merger, sale of assets,
reorganization or otherwise), which will impair or hinder the ability
or obligation of any of the Xxxxxxxx Affiliates to perform any of its
duties and responsibilities under the Xxxxxxxx Agreement to which it is
a party.
4.6. BANKING ARRANGEMENTS. By March 31, 2000, and at all times
thereafter, the Borrower will, except as and to the extent otherwise expressly
permitted by the Collateral Agent from time to time, make subject to an agency
account agreement, in or substantially in the form of EXHIBIT B or otherwise in
form and substance reasonably satisfactory to the Collateral Agent (each, an
"AGENCY ACCOUNT AGREEMENT"), each bank, securities or other investment account
held or maintained by the Borrower with any bank or other financial institution
other than the Collateral Agent and in which any cash or cash equivalents owned
by the Borrower are at any time held or maintained, excluding any accounts
opened and maintained by the Borrower as a fiduciary for its employees, or
otherwise in connection with the Borrower's employee benefits plans,
specifically excluding the "Capital Appreciation Plan" of the Borrower. Existing
accounts are listed in ITEM B of EXHIBIT A hereto. The Borrower shall notify the
Collateral Agent of any new accounts to be established from time to time. The
Borrower shall deliver to the Collateral Agent from time to time, and in any
case quarterly, a description of all accounts in form and substance satisfactory
to the Collateral Agent, which description shall include the account numbers and
balances of such accounts.
ARTICLE V
REMEDIES
5.1. EXERCISE. If any Event of Default is continuing, the Collateral
Agent may exercise in respect of all or any of the Security Agreement
Collateral, in addition to all other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of the Collateral Agent
upon default under the UCC (whether or not the UCC applies to the affected
Security Agreement Collateral) and other Applicable Law. Without limitation of
the above, the Collateral Agent may, whenever an Event of Default is continuing,
without (to the extent permitted by Applicable Law) notice to the Borrower, take
all or any of the following actions:
(a) transfer all or any part of the Security Agreement
Collateral into the name of the Collateral Agent or its nominee, with
or without disclosing that such Security Agreement Collateral is
subject to any Liens hereunder;
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(b) notify the parties obligated in respect of any of the
Security Agreement Collateral to make payments directly to the
Collateral Agent of any amount due or to become due thereunder;
(c) enforce collection of any of the Security Agreement
Collateral by suit or otherwise, and surrender, release or exchange all
or any part thereof, or compromise or extend or renew for any period
(whether or not longer than the original period) any obligations of any
nature of any party with respect thereto;
(d) endorse any checks, drafts or other writings in the name
of the Borrower to allow collection of the Security Agreement
Collateral;
(e) take control of any proceeds of the Security Agreement
Collateral;
(f) execute (in the name, place, and stead of the Borrower)
endorsements, assignments, stock powers and other Instruments of
conveyance or transfer with respect to all or any of the Security
Agreement Collateral; and
(g) generally, do all such other acts and things as may be
considered incidental or conducive to any of the matters or powers
mentioned in the foregoing provisions of this SECTION 5.1 and which the
Collateral Agent may or can do lawfully and to use the name of the
Borrower for such purposes and in any proceedings arising therefrom.
In furtherance of, and not in limitation of, the foregoing, the Collateral
Agent, without demand of performance or other demand, advertisement or notice of
any kind (except the notice specified below of time and place of public or
private sale) to or upon the Borrower or any other Person (all and each of which
demands, advertisements and/or notices are hereby expressly irrevocably waived
by the Borrower), may, whenever any Event of Default is continuing, in a
commercially reasonable manner, collect, receive, appropriate and realize upon
the Security Agreement Collateral, or any part thereof, and sell, assign,
give an option or options to purchase, contract to sell or otherwise dispose of
and deliver the Security Agreement Collateral, or any part thereof, in one or
more parcels at public or private sale or sales, at any exchange, at any
broker's board or at any of the Collateral Agent's offices or elsewhere upon
such terms and conditions as it may reasonably deem advisable and at such prices
as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk, with the right to the Collateral Agent upon any
such sale or sales, public or private, to purchase the whole or any part of the
Security Agreement Collateral so sold, free of any right or equity of redemption
in the Borrower, which right or equity is hereby expressly
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irrevocably waived and released by the Borrower. Unless Security Agreement
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, in which event no notification is
required, the Borrower agrees that the Collateral Agent need not give it more
than ten (10) days' notice of the time and place of any public sale or of the
time after which a private sale or other intended disposition is to take place
and that such notice is reasonable notification of such matters.
5.2. APPLICATION OF PROCEEDS. Cash proceeds received or otherwise held
by the Collateral Agent in respect of any Sale of, collection from, or other
realization upon, all or any part of the Collateral under this Agreement or the
Pledge Agreement shall be applied by the Collateral Agent in the following
order:
(a) FIRST, subject always to the limitations contained in the
next paragraph of this SECTION 5.2, to the Collateral Agent for the
benefit of the Secured Creditors, on account of the Obligations of the
Borrower to the Secured Creditors (whether or not such Obligations are
then due and payable, matured or unmatured, absolute or contingent, or
otherwise); and
(b) SECOND, to the extent that proceeds remain after the
application pursuant to the preceding CLAUSE (A), to the Borrower or to
whomsoever else may be lawfully entitled to receive such surplus.
NOTWITHSTANDING ANYTHING EXPRESS OR IMPLIED IN THE COLLATERAL DOCUMENTS
TO THE CONTRARY, THE MAXIMUM AGGREGATE AMOUNT OF ALL PROCEEDS OF COLLATERAL
(WHETHER RECEIVED OR REALIZED UPON PURSUANT TO THIS AGREEMENT OR THE PLEDGE
AGREEMENT) WHICH MAY BE APPLIED BY THE COLLATERAL AGENT AND THE OTHER SECURED
CREDITORS TOWARDS PAYMENT OF THE OBLIGATIONS SHALL NOT EXCEED THE MAXIMUM
PERMITTED AMOUNT.
THE BORROWER SHALL REMAIN LIABLE FOR ANY DEFICIENCY.
5.3. INDEMNITY AND EXPENSES. The Borrower hereby indemnifies and holds
harmless the Collateral Agent and the shareholders, officers, directors,
employees, agents, Subsidiaries and affiliates of the Collateral Agent, from and
against any and all claims, losses, and liabilities arising out of or resulting
from this Agreement (including the enforcement thereof), except to the extent
that such claims, losses or liabilities have been found by a court of competent
jurisdiction, in a final, nonappealable order, to have resulted as a consequence
of the Collateral Agent's fraud, gross negligence or willful misconduct. The
Borrower will, upon written demand, pay to the Collateral Agent the amount of
any and all reasonable expenses,
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including the reasonable fees and disbursements of its counsel and of any
experts, which the Collateral Agent may incur in connection with:
(a) the administration of this Agreement or any agreement or
other Instrument relating hereto;
(b) the removal, custody, preservation, use or operation of,
or the sale of, collection from, or other realization upon, any of the
Borrower's Security Agreement Collateral;
(c) the exercise or enforcement against the Borrower of any of
the rights or remedies of the Collateral Agent hereunder;
(d) the failure by the Borrower to perform or observe any of
the provisions hereof; or
(e) the advancement of any funds in connection with actions
taken pursuant to SECTION 2.7.
5.4. NO WAIVER; REMEDIES CUMULATIVE. No delay, act or omission on the
part of the Collateral Agent of any of its rights hereunder shall be deemed a
waiver of any rights hereunder unless also contained in a writing signed by the
Collateral Agent, nor shall any single or partial exercise of, or any failure to
exercise, any right, power or privilege preclude any other or further or initial
exercise thereof of any other right, power or privilege. The rights and remedies
provided herein are cumulative, and not exclusive of rights and remedies which
may be granted or provided by Applicable Law.
5.5. MARSHALLING. The Collateral Agent shall not be required to marshal
any present or future collateral security (including, but not limited to, this
Agreement and the Security Agreement Collateral) for, or other assurances of
payment of, the Obligations or any of them or to resort to such collateral
security or other assurances of payment in any particular order, and all of the
rights of the Collateral Agent hereunder or in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, the Borrower hereby agrees that it will not invoke any Applicable Law
relating to the marshalling of collateral which might cause delay in or impede
the enforcement of the Collateral Agent's rights under this Agreement or under
any other Instrument creating or evidencing any of the Obligations or under
which any of the Obligations is outstanding or by which any of the Obligations
is secured or payment thereof is otherwise assured, and, to the extent that it
lawfully may, the Borrower hereby irrevocably waives the benefits of all such
laws.
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ARTICLE VI
MISCELLANEOUS
6.1. COLLATERAL DOCUMENT, ETC. For all purposes of the Credit
Agreement, this Agreement is a "COLLATERAL DOCUMENT" and a "LOAN DOCUMENT"
executed and delivered pursuant to the Credit Agreement, and shall (unless
otherwise expressly indicated herein) be construed, administered and applied in
accordance with and subject to the terms and provisions of the Credit Agreement.
6.2. AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement nor consent to any departure by the Borrower herefrom shall in any
event be effective unless the same shall be in writing and signed by the
Collateral Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is given.
6.3. ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing or by facsimile transmission and, if
to the Borrower, addressed or delivered to it at the address specified in the
Credit Agreement, and if to the Collateral Agent, addressed or delivered to it
at the address specified in the Credit Agreement, or as to any party at such
other address as shall be designated by such party in a written notice to the
other parties complying as to delivery with the terms of this SECTION 6.3. Any
such notices and other communications, if mailed and properly addressed with
postage prepaid or if transmitted by facsimile transmission, shall be deemed
given when received.
6.4. SPECIFIC PERFORMANCE. For the avoidance of doubt, the parties
hereto hereby acknowledge that the Borrower's covenants in SECTION 4.5 hereof
are of the essence of this Agreement and that, accordingly, upon application to
a court of equity having jurisdiction, the Collateral Agent shall be entitled
to a decree requiring specific performance by the Borrower of such covenants.
6.5. CHOICE OF LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL
IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
EXCEPT FOR SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK.
6.6. COUNTERPARTS; ENTIRE AGREEMENT. This Agreement may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement. This Agreement, the Credit Agreement and the other Loan Documents
constitute the entire understanding between the parties hereto with respect to
the
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subject matter hereof and supersede any prior agreements, written or oral,
with respect thereto.
6.7. HEADINGS. The various headings of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
6.8. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW WHICH CANNOT BE WAIVED, EACH OF THE COLLATERAL AGENT AND THE BORROWER HEREBY
WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT
OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF OR
ANY OBLIGATION OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE COLLATERAL AGENT OR OF THE BORROWER IN CONNECTION WITH ANY OF
THE ABOVE, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN
CONTRACT OR TORT OR OTHERWISE. THE BORROWER ACKNOWLEDGES THAT THE PROVISIONS OF
THIS SECTION 6.8 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE COLLATERAL
AGENT IS RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. THE COLLATERAL
AGENT OR THE BORROWER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
6.8 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE COLLATERAL AGENT
AND THE BORROWER TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this SECURITY
AGREEMENT to be duly executed and delivered by their respective officers
thereunto duly authorized on and as of the date first above written.
THE BORROWER:
-------------
[SEAL] XXXXXXXX BRANDS
INTERNATIONAL, INC.
Attest: /s/ By: /s/
-------------------------------------- -----------------------------
Xxxxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxxxxx
Assistant Secretary Title: Vice President and
Treasurer
THE COLLATERAL AGENT:
---------------------
BANKBOSTON, N.A.,
as Collateral Agent
for the Lenders
By: /s/
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
State of Ohio )
) ss.
County of Xxxxxxxx )
Personally appeared before me, the undersigned, a Notary Public in and
for said county, Xxxxxx X. Xxxxxxxxxx, personally known to me, who, being by me
first duly sworn, declared that he is the Vice President and Treasurer of
XXXXXXXX BRANDS INTERNATIONAL, INC., a New Jersey corporation, that being duly
authorized he did sign and seal the said SECURITY AGREEMENT as such officer of
and on behalf of such corporation, and that the same is such corporation's free
act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal on
this 4th day of February, 2000.
/s/
----------------------------
Xxxxxxx Xxxxxxx
Notary Public
My Commission Expires:
[SEAL] JULY 27, 2003
------------------------------------
