EXHIBIT 4.5
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EXECUTION COPY
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AMENDED AND RESTATED U.S. SECURITY AGREEMENT
among
SCOTSMAN HOLDINGS, INC.,
XXXXXXXX SCOTSMAN, INC.,
CERTAIN SUBSIDIARIES
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly known as BANKERS TRUST COMPANY),
as COLLATERAL AGENT
________________________________
Dated as of March 26, 2002
and
Amended and Restated as of August 18, 2003
________________________________
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AMENDED AND RESTATED U.S. SECURITY AGREEMENT
AMENDED AND RESTATED U.S. SECURITY AGREEMENT, dated as of March 26,
2002 and amended and restated as of August 18, 2003, made by each of the
undersigned assignors (each an "ASSIGNOR" and, together with any other entity
that becomes an assignor hereunder pursuant to Section 10.14 hereof, the
"ASSIGNORS") in favor of Deutsche Bank Trust Company Americas (formerly known as
Bankers Trust Company), as Collateral Agent, for the benefit of the Secured
Creditors (as defined below), and acknowledged and agreed to by U.S. Bank
National Association, as trustee (together with any successor trustee, the
"SENIOR SECURED NOTES TRUSTEE") for the benefit of the holders from time to time
of the Senior Secured Notes (as defined below). Except as otherwise defined
herein, all capitalized terms used herein and defined in the Credit Agreement
(as defined below) shall be used herein as therein defined (or, at any time on
or after the first date when all Credit Document Obligations (as defined below)
shall have been repaid in full and all Letters of Credit have been terminated or
cash collateralized in a manner satisfactory to the Administrative Agent and the
Total Commitment under the Credit Agreement has been terminated and thereafter
for so long as no Credit Agreement is in effect, the Credit Agreement as in
effect on such date immediately prior to such repayment and termination,
provided that all determinations required to be made to the satisfaction of the
Administrative Agent and all matters required to be acceptable to the
Administrative Agent in each case as provided in any such definition shall,
after such date, instead be required to be made to the satisfaction of the
Collateral Agent or be required to be acceptable to the Collateral Agent, as the
case may be).
W I T N E S S E T H:
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WHEREAS, Scotsman Holdings, Inc. ("HOLDINGS"), Xxxxxxxx Scotsman, Inc.
(the "BORROWER"), the financial institutions from time to time party thereto
(the "LENDERS"), Deutsche Bank Trust Company Americas (formerly known as Bankers
Trust Company), as Administrative Agent (together with any successor
administrative agent, the "ADMINISTRATIVE AGENT"), Fleet Capital Corporation and
Congress Financial Corporation, as Co-Syndication Agents, Bank of America, N.A.
and GMAC Business Credit, LLC, as Co-Documentation Agents and Deutsche Banc
Alex. Xxxxx Inc., as Sole Lead Arranger and Sole Book Manager, have entered into
a Credit Agreement, dated as of March 26, 2002, (as amended, modified, extended,
renewed, replaced, restated or supplemented from time to time, and including any
agreement or agreements extending the maturity of, or refinancing or
restructuring (including, but not limited to, the inclusion of additional
borrowers or guarantors thereunder or any increase in the amount borrowed) all
or any portion of, the indebtedness under such agreement or any successor
agreement or agreements, whether or not with the same agent, trustee,
representative, lenders or holders, the "CREDIT AGREEMENT"), providing for the
making of Loans and the issuance of, and participation in, Letters of Credit for
the account of the Borrower as contemplated therein (the Lenders, each Issuing
Lender, the Administrative Agent and its affiliates (including without
limitation Deutsche Banc Alex. Xxxxx Inc., as Sole Lead Arranger and Sole Book
Manager), the Collateral Agent and each other Agent (as defined in the Credit
Agreement) are herein called the "BANK CREDITORS");
WHEREAS, the Borrower may from time to time be party to one or more
interest rate agreements (including, without limitation, interest rate swaps,
caps, floors, collars, and similar agreements) (collectively, the "INTEREST RATE
AGREEMENTS") with DBTCA, any Lender, any affiliate thereof or a syndicate of
financial institutions organized by DBTCA or an affiliate of DBTCA (even if
DBTCA or any such Lender ceases to be a Lender under the Credit Agreement for
any reason), and any institution that participates, and in each case their
subsequent assigns, in such Interest Rate Agreement (collectively, the "INTEREST
RATE CREDITORS", and the Interest Rate Creditors together with the Bank
Creditors, collectively, the "FIRST LIEN CREDITORS");
WHEREAS, the Assignors (other than Holdings) and the Senior Secured
Notes Trustee have entered into an Indenture, dated as of August 18, 2003 (as
amended, modified or supplemented from time to time, the "SENIOR SECURED NOTES
INDENTURE"), providing for (i) the issuance by the Borrower of its 10% Senior
Secured Notes due 2008 and all Senior Secured Notes issued upon any exchange
offer as contemplated in the Senior Secured Notes Indenture (the "SENIOR SECURED
NOTES") to the holders thereof from time to time (the "SENIOR SECURED
NOTEHOLDERS" and, together with the Senior Secured Notes Trustee, the "SECOND
LIEN CREDITORS" and, together with the First Lien Creditors, the "SECURED
CREDITORS") and (ii) the guaranty by the Guarantors (as defined in the Senior
Secured Notes Indenture) and the Subordinated Guarantor (as defined in the
Senior Secured Notes Indenture) of the Borrower's obligations under the Senior
Secured Notes Indenture and the Senior Secured Notes (each such guaranty,
together with the Senior Secured Notes Indenture and the Senior Secured Notes,
are herein called the "SENIOR SECURED NOTES DOCUMENTS");
WHEREAS, pursuant to the Holdings Secured Guaranty, Holdings has
guaranteed to the First Lien Creditors the payment when due of all Guaranteed
Obligations as described therein;
WHEREAS, pursuant to the U.S. Subsidiaries Guaranty, each Subsidiary
Guarantor has jointly and severally guaranteed to the First Lien Creditors the
payment when due of all Guaranteed Obligations as described therein;
WHEREAS, each Assignor and the Collateral Agent have entered into the
U.S. Security Agreement, dated as of March 26, 2002 (as amended, modified or
supplemented through, but not including, the date hereof, the "ORIGINAL U.S.
SECURITY AGREEMENT"), pursuant to which the Assignors granted a security
interest in the Collateral for the benefit of the Secured Creditors under, and
as defined in, the Original U.S. Security Agreement;
WHEREAS, it was a condition precedent to the making of Loans to, and
the issuance of, and participation in, Letters of Credit for the account of the
Borrower under the Credit Agreement that each Assignor shall have executed and
delivered to the Collateral Agent the Original U.S. Security Agreement;
WHEREAS, it is a condition precedent to the issuance of the Senior
Secured Notes by the Borrower under the Senior Secured Notes Indenture that each
Assignor (other than Holdings) shall have executed and delivered this Agreement;
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WHEREAS, pursuant to the Second Amendment to the Credit Agreement,
dated as of August 11, 2003, the Bank Creditors have authorized the Collateral
Agent to enter into an amendment and restatement of the Original U.S. Security
Agreement in the form of this Agreement to, INTER ALIA, also secure the
obligations in respect of the Senior Secured Notes Documents on the terms and
conditions set forth herein;
NOW, THEREFORE, the parties hereto agree that the Original U.S.
Security Agreement shall be and hereby is amended and restated in its entirety
as follows:
ARTICLE I
SECURITY INTERESTS
1.1. GRANT OF SECURITY INTERESTS. (a) As security for the prompt
and complete payment and performance when due of all of its Obligations, each
Assignor does hereby assign and transfer unto the Collateral Agent, and does
hereby pledge and grant to the Collateral Agent, for the benefit of the Secured
Creditors (and, to the extent the following constitutes "COLLATERAL" under, and
as defined in, the Original U.S. Security Agreement, does hereby reconfirm
(without interruption) its assignment, transfer, pledge and grant to the
Collateral Agent under the Original U.S. Security Agreement of), a continuing
security interest in all of the right, title and interest of such Assignor in,
to and under all of the following personal property and fixtures (and all rights
therein) of such Assignor, or in which or to which such Assignor has any rights,
in each case whether now existing or hereafter from time to time acquired:
(i) each and every Account;
(ii) all cash;
(iii) the Cash Collateral Account and all moneys, securities,
Instruments and other investments deposited or required to be
deposited in the Cash Collateral Account;
(iv) all Chattel Paper (including without limitation all Tangible
Chattel Paper and all Electronic Chattel Paper);
(v) all Commercial Tort Claims;
(vi) all computer programs of such Assignor and all intellectual
property rights therein and all other proprietary information
of such Assignor, including but not limited to Trade Secret
Rights;
(vii) all Contracts, together with all Contract Rights arising
thereunder;
(viii) all Copyrights;
(ix) all Equipment;
(x) all Units and Unit Certificates and MSO's;
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(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective
letter of credit is evidenced by a writing);
(xviii) all Marks, together with the registrations and right to all
renewals thereof, and the goodwill of the business of such
Assignor symbolized by the Marks;
(xix) all Patents;
(xx) all Permits;
(xxi) all Software and all Software licensing rights, all writings,
plans, specifications and schematics, all engineering
drawings, customer lists, goodwill and licenses, and all
recorded data of any kind or nature, regardless of the medium
of recording;
(xxii) all Supporting Obligations;
(xxiii) all of such Assignor's Collection Accounts and Lock Box
Addresses and all of such Assignor's interest in any
Collection Account, and all moneys, securities and instruments
deposited or required to be deposited in such Collection
Accounts or Lock Box Addresses;
(xxiv) the Disbursement Account and all moneys deposited or required
to be deposited in such Disbursement Account;
(xxv) the Concentration Account and all moneys, securities and
instruments deposited or required to be deposited in such
Concentration Account;
(xxvi) each Collection Bank Agreement to which such Assignor is a
party and each other agreement entered into by such Assignor
with any Collection Bank and all rights of such Assignor under
each such agreement;
(xxvii) the Concentration Account Agreement and each other agreement
entered into by such Assignor with the Concentration Account
Bank and all rights of such Assignor under each such
agreement;
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(xxviii) the DB Account and all moneys, securities and instruments
deposited or required to be deposited in the DB Account;
(xxix) all other Deposit Accounts and all other demand, deposit,
time, savings, cash management, passbook and similar accounts
maintained by such Assignor with any Person and all moneys,
securities, Instruments and other investments deposited or
required to be deposited in any of the foregoing; and
(xxx) all Proceeds and products of any and all of the foregoing (all
of the above, the "COLLATERAL").
(b) The security interest of the Collateral Agent under this
Agreement extends to all Collateral which any Assignor may acquire, or with
respect to which any Assignor may obtain rights, at any time during the term of
this Agreement.
(c) Notwithstanding anything to the contrary contained in this
Section 1.1 or elsewhere in this Agreement, in the event of any conflict between
the provisions of this Agreement, the Intercreditor Agreement or any other
Collateral Document and the provisions of the Senior Secured Notes Documents,
the terms of this Agreement, the Intercreditor Agreement and the other
Collateral Documents shall prevail.
(d) Notwithstanding anything to the contrary contained above or
elsewhere in this Agreement, with respect to each Non-Canadian Foreign
Subsidiary, if, at any time, the pledge and assignment as otherwise contemplated
herein of more than 66-2/3% of the voting capital stock of such Non-Canadian
Foreign Subsidiary would give rise to "deemed dividend" tax consequences under
Section 956 of the Code, then not more 65% of the outstanding voting capital
stock (plus 100% of the non-voting capital stock) of such Non-Canadian Foreign
Subsidiary shall be required to be pledged pursuant to this Agreement.
(e) Notwithstanding anything to the contrary contained in this
Agreement, (w) the Second Lien Creditors shall not have a security interest in,
and the grant of security interests pursuant to this Agreement for the benefit
of the Second Lien Creditors shall not extend to, any Second Lien Excluded
Collateral, and with respect to the Second Lien Creditors the term "Collateral"
shall not include the Second Lien Excluded Collateral, (x) the term "Collateral"
with respect to the Second Lien Obligations shall not include any Collateral
owned by Holdings or in which Holdings has any direct right, title or interest,
the grant or pledge of security interests hereunder by Holdings shall be solely
for the benefit of the First Lien Creditors and shall not secure any of the
Second Lien Obligations and Holdings shall not be an Assignor with respect to
the Second Lien Obligations for any purpose whatsoever, (y) to the extent that
the granting or perfecting of any assets or property of the Assignors acquired
after August 18, 2003 requires the consent of a third party that has not been
obtained after the Assignors (other than Holdings) have used commercially
reasonable efforts to obtain such consent, the Second Lien Creditors shall not
have a security interest in, and the grant of security interest pursuant to this
Agreement for the benefit of the Second Lien Creditors shall not extend to, any
such property or assets and (z) to the extent that a security interest in favor
of the Second Lien
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Creditors cannot be granted or perfected in certain assets or property of the
Assignors under applicable law, the Second Lien Creditors shall not have a
security interest in, and the grant of security interest pursuant to this
Agreement for the benefit of the Second Lien Creditors that not extend to, any
such assets or property.
1.2. POWER OF ATTORNEY. Each Assignor hereby constitutes and
appoints the Collateral Agent its true and lawful attorney, irrevocably, with
full power after the occurrence of and during the continuance of an Event of
Default (in the name of such Assignor or otherwise) to act, require, demand,
receive, compound and give acquittance for any and all moneys and claims for
moneys due or to become due to such Assignor under or arising out of the
Collateral, to endorse any checks or other instruments or orders in connection
therewith, to make changes in the Unit Certificate of any Unit which the
Collateral Agent deems necessary or advisable, including, without limitation,
changing the ownership thereof to the Collateral Agent or making a notation of
the Collateral Agent's interest thereon, and to file any claims or take any
action or institute any proceedings which the Collateral Agent may deem to be
necessary or advisable to protect the interests of the Secured Creditors, which
appointment as attorney is coupled with an interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and delivery
of this Agreement, as follows:
2.1. NECESSARY FILINGS. Except as set forth in Section 11.19(a) and
(b) of the Credit Agreement and any consents to assignments of any Government
Lease, all filings, registrations, recordings and other actions necessary or
appropriate to create, preserve and perfect the security interest granted by
such Assignor to the Collateral Agent hereby in respect of the Collateral have
been accomplished and the security interest granted to the Collateral Agent
pursuant to this Agreement in and to the Collateral creates a valid and,
together with all such filings, registrations, recordings and other actions, a
perfected security interest therein prior to the rights of all other Persons
therein and subject to no other Liens (other than Permitted Liens) and is
entitled to all the rights, priorities and benefits afforded by the Uniform
Commercial Code or other relevant law as enacted in any relevant jurisdiction to
perfected security interests; it being understood and agreed that no actions
have been taken under Section 9-104 of the UCC to establish "control" of any
Deposit Accounts (other than (x) the Concentration Account, (y) the Collection
Accounts, (z) the Cash Collateral Account and Deposit Accounts maintained with
the Collateral Agent) except as required pursuant to Section 3.14(a).
2.2. NO LIENS. Such Assignor is, and as to all Collateral acquired
by it from time to time after the date hereof such Assignor will be, the owner
(or in the case of any Collateral in respect of which such Assignor is the
licensee, the licensee) of all Collateral free from any Lien, security interest,
encumbrance or other right, title or interest of any Person (other than
Permitted Liens), and such Assignor shall defend the Collateral against all
claims and demands of all Persons at any time claiming the same or any interest
therein adverse to the Collateral Agent.
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2.3. OTHER FINANCING STATEMENTS. As of the date hereof, there is no
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any interest of any
kind in the Collateral (other than financing statements filed in respect of
Permitted Liens), and so long as the Termination Date has not occurred, such
Assignor will not 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 hereby by such Assignor or in connection with
Permitted Liens.
2.4. CHIEF EXECUTIVE OFFICE, RECORD LOCATIONS. The chief executive
office of such Assignor on August 18, 2003 is located at the address indicated
on Annex A hereto for such Assignor.
2.5. LOCATION OF INVENTORY AND EQUIPMENT AND UNITS. All Inventory,
Equipment and Units held on August 18, 2003 is located at one of the locations
shown on Annex B hereto for such Assignor.
2.6. UNITS. Subject to Section 11.19(a) of the Credit Agreement, to
the extent any Unit is, or under applicable law is required to be, covered by
any Unit Certificate and to the extent that any action under applicable state
law in lieu of or in addition to the filing of financing statements under the
Uniform Commercial Code of the relevant State are required to be taken so that
the security interests in the respective Units created pursuant to this
Agreement are fully perfected under applicable state law, all such actions have
been taken. Subject to Section 11.19(a) of the Credit Agreement, in the event
any change in applicable law in any State where any Unit is located, or a
decision, opinion, ruling, regulation, decree or order of a court, or
administrative, regulatory or governmental authority, of any State in which any
Unit is located (whether involving any Assignor or any unrelated third person)
shall render any of the information provided pursuant to the preceding sentence
inaccurate in any respect, then the Assignor that owns any Unit for which the
information provided in the preceding sentence is no longer accurate shall
inform (in writing) the Collateral Agent of the respective change and shall
promptly take such actions or cause such actions to be taken as the Collateral
Agent shall request in order to create, maintain, establish or preserve the
perfection of the security interest of the Collateral Agent in such Unit.
Subject to Section 11.19(a) of the Credit Agreement, as new Units are acquired
after the date of this Agreement, or to the extent that Units are moved to
different states after the date of this Agreement, the relevant Assignor shall
take all actions with respect thereto (including, to the extent required under
applicable law, causing a Unit Certificate to be issued which contains a
notation of the security interest of the Collateral Agent thereon) as shall be
required under applicable State law to ensure that the security interests of the
Collateral Agent therein are perfected under relevant law. Each Assignor shall
also comply with the covenants contained in Section 7.18 of the Credit
Agreement, which are deemed to be incorporated by reference herein.
2.7. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED
ORGANIZATION AND/OR A TRANSMITTING UTILITY); JURISDICTION OF ORGANIZATION;
LOCATION; ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES THERETO; ETC. The exact
legal name of each Assignor, the type of organization of such Assignor, whether
or not such Assignor is a Registered Organization, the
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jurisdiction of organization of such Assignor, such Assignor's Location, the
organizational identification number (if any) of each Assignor, and whether or
not such Assignor is a Transmitting Utility, is listed on Annex C hereto for
such Assignor. No Assignor shall change its legal name, its type of organization
(including without limitation its status as (x) a Registered Organization, in
the case of each Registered Organization or (y) a Transmitting Utility or a
Person which is not a Transmitting Utility, as the case may be), its
jurisdiction of organization, its Location or its organizational identification
number (if any) from that listed on Annex C hereto for such Assignor or those
that may have been established after the date of this Agreement in accordance
with the immediately succeeding sentence of this Section 2.7. No Assignor shall
change its legal name, its type of organization, its status as a Registered
Organization (in the case of a Registered Organization), its status as a
Transmitting Utility or as a Person which is not a Transmitting Utility, as the
case may be, its jurisdiction of organization, its Location, or its
organizational identification number (if any), except that any such changes
shall be permitted (so long as not in violation of the applicable requirements
of the Secured Debt Agreements and so long as same do not involve (x) a
Registered Organization ceasing to constitute same or (y) any Assignor changing
its jurisdiction of organization or Location from the United States or a State
thereof to a jurisdiction of organization or Location, as the case may be,
outside the United States or a State thereof) if (i) it shall have given to the
Collateral Agent not less than 15 days' prior written notice of each change to
the information listed on Annex C (as adjusted for any subsequent changes
thereto previously made in accordance with this sentence), together with a
supplement to Annex C which shall correct all information contained therein for
the respective Assignor, and (ii) in connection with the respective such change
or changes, it shall have taken all action reasonably requested by the
Collateral Agent to maintain the security interests of the Collateral Agent in
the Collateral intended to be granted hereby at all times fully perfected and in
full force and effect. In addition, to the extent that any Assignor does not
have an organizational identification number on the date hereof and later
obtains one, such Assignor shall promptly thereafter notify the Collateral Agent
of such organizational identification number and shall take all actions
reasonably satisfactory to the Collateral Agent to the extent necessary to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby fully perfected and in full force and effect.
2.8. TRADE NAMES; ETC. No Assignor has or operates in any
jurisdiction under, or in the preceding twelve months has had or has operated in
any jurisdiction under, any trade names, fictitious names or other names except
its legal name as specified in Annex C and such other trade or fictitious names
as are listed on Annex D hereto for such Assignor. No Assignor shall assume or
operate in any jurisdiction under any new trade, fictitious or other name until
(i) it shall have given to the Collateral Agent not less than 30 days' written
notice of its intention so to do, clearly describing such new name and the
jurisdictions in which such new name will be used and providing such other
information in connection therewith as the Collateral Agent may reasonably
request and (ii) with respect to such new name, it shall have taken all action
reasonably requested by the Collateral Agent to maintain the security interest
of the Collateral Agent in the Collateral intended to be granted hereby at all
times fully perfected and in full force and effect.
2.9. AS-EXTRACTED COLLATERAL; TIMBER-TO-BE-CUT. On date hereof, no
Assignor owns, or expects to acquire, any property which constitutes, or would
constitute, As-Extracted Collateral or Timber-to-be-Cut. If at any time after
the date of this Agreement any Assignor
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owns, acquires or obtains rights to any As-Extracted Collateral or
Timber-to-be-Cut, such Assignor shall furnish the Collateral Agent with prompt
written notice thereof (which notice shall describe in reasonable detail or the
As-Extracted Collateral and/or Timber-to-be-Cut and the locations thereof) and
shall take all actions as may be deemed reasonably necessary or desirable by the
Collateral Agent to perfect the security interest of the Collateral Agent
therein.
2.10. COLLATERAL IN THE POSSESSION OF A BAILEE. If any Inventory or
other Goods are at any time in the possession of a bailee, the respective
Assignor shall promptly notify the Collateral Agent thereof and, if requested by
the Collateral Agent, shall use its reasonable best efforts to promptly obtain
an acknowledgment from such bailee, in form and substance reasonably
satisfactory to the Collateral Agent, that the bailee holds such Collateral for
the benefit of the Collateral Agent and shall act upon the instructions of the
Collateral Agent, without the further consent of the respective Assignor. The
Collateral Agent agrees with the Assignors that the Collateral Agent shall not
give any such instructions unless an Event of Default has occurred and is
continuing or would occur after taking into account any action by the respective
Assignor with respect to any such bailee.
2.11. RECOURSE. This Agreement is made with full recourse to each
Assignor (subject, in the case of any Assignor party to the U.S. Subsidiaries
Guaranty, to the limits set forth therein) and pursuant to and upon all the
warranties, representations, covenants and agreements on the part of such
Assignor contained herein, in the other Credit Documents, in the Interest Rate
Agreements and otherwise in writing in connection herewith or therewith.
ARTICLE III
SPECIAL PROVISIONS CONCERNING ACCOUNTS; CONTRACT RIGHTS;
INSTRUMENTS; CHATTEL PAPER AND CERTAIN OTHER COLLATERAL
3.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. As of the time when
each of its Accounts arises, each Assignor shall be deemed to have represented
and warranted that each such Account, and all records, papers and documents
relating thereto (if any) are genuine and what they purport to be, and that all
papers and documents (if any) relating thereto (i) will, to the knowledge of
such Assignor, represent the genuine, legal, valid and binding obligation of the
account debtor evidencing indebtedness unpaid and owed by the respective account
debtor arising out of the performance of labor or services or the sale or lease
and delivery of the merchandise listed therein, or both, (ii) will be the only
original writings evidencing and embodying such obligation of the account debtor
named therein (other than copies created for general accounting purposes), (iii)
will, to the knowledge of such Assignor, evidence true and valid obligations,
enforceable in accordance with their respective terms subject to adjustments
customary in the business of such Assignor in accordance with past practice, and
(iv) will be in compliance and will conform with all applicable material
federal, state and local laws and applicable material laws of any relevant
foreign jurisdiction.
3.2. MAINTENANCE OF RECORDS. Each Assignor will keep and maintain
at its own cost and expense accurate records of its Accounts and Contracts,
including, but not limited to, originals of all documentation (including each
Contract) with respect thereto, records of all payments received, all credits
granted thereon, all merchandise returned and all other dealings there-
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with, and such Assignor will make the same available on such Assignor's premises
to the Collateral Agent for inspection, at such Assignor's own cost and expense,
at any and all reasonable times upon prior notice to such Assignor and otherwise
on a basis consistent with the respective Secured Debt Agreements. Upon the
occurrence and during the continuance of an Event of Default, at the request of
the Collateral Agent, such Assignor shall, at its own cost and expense, deliver
all tangible evidence of its Accounts and Contract Rights (including, without
limitation, copies of all documents evidencing the Accounts and all Contracts)
and such books and records to the Collateral Agent or to its representatives
(copies of which evidence and books and records may be retained by such
Assignor, such copies to be certified as true and complete by an appropriate
officer of such Assignor). Upon the occurrence and during the continuance of an
Event of Default and if the Collateral Agent so directs, such Assignor shall
legend, in form and manner satisfactory to the Collateral Agent, the Accounts
and the Contracts, as well as books, records and documents (if any) of such
Assignor evidencing or pertaining to such Accounts and Contracts with an
appropriate reference to the fact that such Accounts and Contracts have been
assigned to the Collateral Agent and that the Collateral Agent has a security
interest therein.
3.3. MODIFICATION OF TERMS; ETC. No Assignor shall rescind or
cancel any indebtedness evidenced by any Account of such Assignor or under any
Contract of such Assignor, or modify any term thereof or make any adjustment
with respect thereto, or extend or renew the same, or compromise or settle any
material dispute, claim, suit or legal proceeding relating thereto, or, except
as permitted by the respective Secured Debt Agreements sell any Account or
Contract of such Assignor, or interest therein, without the prior written
consent of the Collateral Agent, except as permitted by Section 3.4 hereof. Each
Assignor will duly fulfill all obligations on its part to be fulfilled under or
in connection with the Accounts and Contracts of such Assignor and will do
nothing to impair the rights of the Collateral Agent in such Accounts or
Contracts.
3.4. COLLECTION. Each Assignor shall, in accordance with its
ordinary business practices, endeavor to cause to be collected from the account
debtor named in each of its Accounts or obligor under any Contract of such
Assignor, as and when due (including, without limitation, amounts, services or
products which are delinquent, such amounts, services or products to be
collected in accordance with generally accepted lawful collection procedures)
any and all amounts, services or products owing under or on account of such
Account or Contract, and apply forthwith upon receipt thereof all such amounts,
services or products as are so collected to the outstanding balance of such
Account or under such Contract, except that, so long as no Event of Default is
then in existence, any Assignor may allow in the ordinary course of business as
adjustments to amounts, services or products owing under its Accounts and
Contracts (i) an extension or renewal of the time or times of payment, or
settlement for less than the total unpaid balance, which such Assignor finds
appropriate in accordance with reasonable business judgment and (ii) a refund or
credit due as a result of returned or damaged merchandise or improperly
performed services or such other adjustments which such Assignor deems
appropriate in the exercise of its commercially reasonable business judgment.
The costs and expenses (including, without limitation, reasonable attorneys'
fees) of collection, whether incurred by an Assignor or the Collateral Agent,
shall be borne by such Assignor.
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3.5. DIRECTION TO ACCOUNT DEBTORS; ETC. To the extent permitted by
applicable law, such Assignor agrees (x) to cause all payments on account of the
Accounts and Contracts to be made directly to the relevant Lockbox Addresses,
(y) that the Collateral Agent may, at its option, directly notify the obligors
with respect to any Accounts and/or under any Contracts to make payments with
respect thereto as provided in preceding clause (x) and (z) that upon the
occurrence and during the continuance of an Event of Default the Collateral
Agent may enforce collection of any such Accounts and Contracts and may adjust,
settle or compromise the amount of payment thereof. Without prior notice to or
assent by any Assignor, upon the occurrence and during the continuance of an
Event of Default the Collateral Agent may apply any or all amounts then in, or
thereafter deposited in, the relevant Collection Account in the manner provided
in Section 7.4 of this Agreement. The costs and expenses (including attorneys'
fees) of collection, whether incurred by any Assignor or the Collateral Agent,
shall be borne by such Assignor.
3.6. INSTRUMENTS. If any Assignor owns or acquires any Instrument
in excess of $100,000 constituting Collateral, such Assignor will within 10
Business Days notify the Collateral Agent thereof, and upon request by the
Collateral Agent will promptly deliver such Instrument to the Collateral Agent
appropriately endorsed to the order of the Collateral Agent.
3.7. COLLECTION ACCOUNTS. Each Assignor has established Collection
Accounts with one or more banking institutions (each, a "COLLECTION BANK") in
the manner set forth in the Credit Agreement and has notified each such
Collection Bank that any Collection Account maintained with such Collection Bank
is under the exclusive dominion and control of the Collateral Agent and that all
moneys, securities, and instruments deposited in such Collection Account are to
be held by such banking institution for the benefit of the Collateral Agent.
Furthermore, each Assignor and each Collection Bank has duly executed and
delivered to the Collateral Agent a Collection Bank Agreement which Collection
Bank Agreement acknowledges the security interest of the Collateral Agent in
each Collection Account established with such Collection Bank and contains the
agreement of such Collection Bank to transmit daily to the Collateral Agent for
deposit in the Concentration Account all cash, instruments and other securities
and all collected funds received in respect of any securities or instruments
deposited in each Collection Account established with such Collection Bank. Each
Assignor hereby represents and warrants that, except as otherwise expressly
provided in the Credit Agreement, it does not now maintain, and will not in the
future maintain, any other account with any Collection Bank other than the
Collection Accounts. Each Assignor has, as of the execution and delivery hereof,
notified each obligor with respect to its Accounts to make payments with respect
thereto directly into one or more Collection Accounts, except as otherwise
expressly provided in the Credit Agreement.
3.8. CONCENTRATION ACCOUNT. The Borrower, as an Assignor, has
established with DBTCA (the "CONCENTRATION ACCOUNT BANK"), in the name of the
Collateral Agent for the benefit of the Secured Creditors, a separate
non-interest bearing account (the "CONCENTRATION ACCOUNT"), which account shall
be under the exclusive dominion and control of the Collateral Agent and into
which there shall be deposited all payments made with respect to the Collateral
(including, without limitation, all moneys, securities and instruments received
in each Collection Account in the manner set forth in each Collection Bank
Agreement, as the case may be). All moneys, securities and instruments at any
time deposited or held in the Concentration Account hereunder shall be held by
the Concentration Account Bank for the benefit of the Collateral Agent and the
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Secured Creditors. Furthermore, the Borrower and the Concentration Account Bank
have duly executed and delivered to the Collateral Agent a Concentration Account
Agreement which Concentration Account Agreement acknowledges the security
interest and exclusive dominion and control of the Collateral Agent in the
Concentration Account established with the Concentration Account Bank and
contains the agreement of the Concentration Account Bank to transmit daily to
the Collateral Agent for deposit in the DB Account all cash, instruments and
other securities and all collected funds received in respect of any securities
or instruments deposited in the Concentration Account. Without notice to or
assent by any Assignor, the Collateral Agent may apply any or all amounts then
in, or thereafter deposited in, the DB Account in the manner provided in Section
7.4 of this Agreement. The costs and expenses (including attorney's fees) of
collection, whether incurred by an Assignor or the Collateral Agent, shall be
borne by such Assignor.
3.9. DB ACCOUNT. The Collateral Agent has established with DBTCA,
in the name of the Collateral Agent for the benefit of the Secured Creditors, a
separate non-interest bearing account with respect to the Assignors (the "DB
ACCOUNT"), which account shall be under the exclusive dominion and control of
the Collateral Agent and into which there shall be deposited all payments made
with respect to the Collateral (including, without limitation, all moneys,
securities and instruments received in each Collection Account and the
Concentration Account in the manner set forth in each Collection Bank Agreement
or the Concentration Account Agreement, as the case may be). All moneys,
securities and instruments at any time deposited or held in the DB Account
hereunder shall be held by the Collateral Agent as Collateral for all purposes
of this Agreement. Without notice to or assent by any Assignor, the Collateral
Agent may apply any or all amounts then in, or thereafter deposited in, the DB
Account in the manner provided in Section 7.4 of this Agreement. The costs and
expenses (including attorney's fees) of collection, whether incurred by an
Assignor or the Collateral Agent, shall be borne by such Assignor.
3.10. RECEIPT OF PAYMENTS. In the event an Assignor shall otherwise
receive any payment in respect of its Collateral, such Assignor shall promptly
(but in no event more than five Business Days of actual receipt thereof) deposit
such payment into a Collection Account. No Assignor shall deposit or permit to
be deposited, into any Collection Account, or the Concentration Account, any
funds or other amounts except funds or other amounts received representing
proceeds of the Collateral.
3.11. ACCOUNT INSPECTION. Each Assignor will permit the Collateral
Agent or its agents to verify from time to time the balances of any and all of
the accounts of such Assignor (including, without limitation, the Collection
Accounts and the Lock Box Addresses).
3.12. ASSIGNORS REMAIN LIABLE UNDER ACCOUNTS. Anything herein to the
contrary notwithstanding, the Assignors shall remain liable under each of the
Accounts to observe and perform all of the conditions and obligations to be
observed and performed by it thereunder, all in accordance with the terms of any
agreement giving rise to such Accounts. Neither the Collateral Agent nor any
other Secured Creditor shall have any obligation or liability under any Account
(or any agreement giving rise thereto) by reason of or arising out of this
Agreement or the receipt by the Collateral Agent or any other Secured Creditor
of any payment relating to such Account pursuant hereto, nor shall the
Collateral Agent or any other Secured Creditor be obli-
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gated in any manner to perform any of the obligations of any Assignor under or
pursuant to any Account (or any agreement giving rise thereto), to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by them or as to the sufficiency of any performance by any party under
any Account (or any agreement giving rise thereto), to present or file any
claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to them or to which they may be
entitled at any time or times.
3.13. ASSIGNORS REMAIN LIABLE UNDER CONTRACTS. Anything herein to
the contrary notwithstanding, the Assignors shall remain liable under each of
the Contracts to observe and perform all of the conditions and obligations to be
observed and performed by them thereunder, all in accordance with and pursuant
to the terms and provisions of each Contract. Neither the Collateral Agent nor
any other Secured Creditor shall have any obligation or liability under any
Contract by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any other Secured Creditor of any payment relating to such
Contract pursuant hereto, nor shall the Collateral Agent or any other Secured
Creditor be obligated in any manner to perform any of the obligations of any
Assignor under or pursuant to any Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any performance by any party
under any Contract, to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may have been
assigned to them or to which they may be entitled at any time or times.
3.14. DEPOSIT ACCOUNTS; ETC. (a) No Assignor maintains, or at any
time after the date of this Agreement shall establish or maintain, any demand,
time, savings, passbook or similar account, except for such accounts which are
both (x) maintained with a bank (as defined in Section 9-102 of the UCC) whose
jurisdiction (determined in accordance with Section 9-304 of the UCC) is within
a State of the United States and (y) permitted pursuant to Section 8.16 of the
Credit Agreement. Annex E hereto accurately sets forth, as of August 18, 2003,
for each Assignor, each Deposit Account maintained by such Assignor (including a
description thereof and the respective account number), the name of the
respective bank with which such Deposit Account is maintained, and the
jurisdiction of the respective Bank with respect to such Deposit Account. For
each Deposit Account (including any Deposit Account at any time established
pursuant to following clause (b), but excluding (x) the Concentration Account,
(y) the Collection Accounts and (z) the Cash Collateral Account or any other
Deposit Account maintained with the Collateral Agent), the respective Assignor
shall cause the bank with which the Deposit Account is maintained to execute and
deliver to the Collateral Agent, within 30 days after the Collateral Agent's
request therefor, a "control agreement" in the form of Annex F hereto
(appropriately completed), with such changes thereto as may be acceptable to the
Collateral Agent. If any bank with which such a Deposit Account is maintained
refuses to, or does not, enter into such a "control agreement", then the
respective Assignor shall promptly (and in any event within 30 days after the
date of the respective request) close the respective Deposit Account and
transfer all balances therein to the Cash Collateral Account or another Deposit
Account meeting the requirements of this Section 3.14 (with respect to which a
"control agreement" meeting the foregoing requirements has been entered into and
is in full force and effect). If any bank with which a Deposit Account is
maintained refuses to subordinate all its claims with respect to such Deposit
Account to the Collateral Agent's security interest therein on terms
satisfactory to the Collateral Agent, then the Collateral Agent, at its option,
may (x) require that such Deposit Account be terminated in accordance with the
immediately preceding sentence or (y) agree to a "control agreement" without
such subordination, provided that in such event the Collateral Agent may at any
time, at its option, subsequently require that such Deposit
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Account be terminated (within 30 days after notice from the Collateral Agent) in
accordance with the requirements of the immediately preceding sentence.
(b) After the date of this Agreement, no Assignor shall establish
any new demand, time, savings, passbook or similar account, except for (x)
Collection Accounts and Concentration Accounts established in accordance with
the requirements of the Credit Agreement and (y) Deposit Accounts established
and maintained with banks and meeting the requirements of preceding clause (a).
At the time any Deposit Account as described in clause (y) of the preceding
sentence is established, to the extent so requested by the Collateral Agent, the
appropriate "control agreement" shall be entered into in accordance with the
requirements of preceding clause (a) and the respective Assignor shall furnish
to the Collateral Agent a supplement to Annex E hereto containing the relevant
information with respect to the respective Deposit Account and the bank with
which same is established.
(c) The Collateral Agent agrees that it (x) shall not deliver a
Notice of Exclusive Control (as defined in the Form of Control Agreement
Regarding Deposit Accounts attached hereto as Annex F) pursuant to any "control
agreement" (other than with respect to the Concentration Account, any Collection
Accounts, the Cash Collateral Account or any other Deposit Account maintained
with the Collateral Agent) to any bank with which any Assigner has established a
Deposit Account unless an Event of Default then exists and is continuing, (y)
shall not give any instructions (as contemplated in the first sentence of
Section 2 of Annex F) as to the withdrawal or disposition of funds in any
Deposit Account subject to such "control agreement" (other than with respect to
the Concentration Account, any Collection Account, the Cash Collateral Account
or any Deposit Account maintained with the Collateral Agent) unless an Event of
Default then exists and is continuing and (z) shall provide the Borrower with a
copy of any such Notice of Exclusive Control delivered pursuant to any such
"control agreement."
3.15. LETTER-OF-CREDIT RIGHTS. If any Assignor is at any time a
beneficiary under a letter of credit with a stated amount of $100,000 or more,
such Assignor shall promptly notify the Collateral Agent thereof and, at the
request of the Collateral Agent, such Assignor shall, pursuant to an agreement
in form and substance reasonably satisfactory to the Collateral Agent, use its
commercially reasonable efforts to (i) arrange for the issuer and any confirmer
of such letter of credit to consent to an assignment to the Collateral Agent of
the proceeds of any drawing under such letter of credit or (ii) arrange for the
Collateral Agent to become the transferee beneficiary of such letter of credit,
with the Collateral Agent agreeing, in each case, that the proceeds of any
drawing under the letter of credit are to be applied as provided in this
Agreement after the occurrence and during the continuance of an Event of
Default.
3.16. COMMERCIAL TORT CLAIMS. All Commercial Tort Claims of each
Assignor in existence on August 18, 2003 are described in Annex G hereto. If any
Assignor shall at any time after the date of this Agreement acquire a Commercial
Tort Claim in an amount (taking the greater of the aggregate claimed damages
thereunder or the reasonably estimated value thereof) of $250,000 or more, such
Assignor shall promptly notify the Collateral Agent thereof in a writing signed
by such Assignor and describing the details thereof and shall grant to the
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Collateral Agent in such writing a security interest therein and in the proceeds
thereof, all upon the terms of this Agreement, with such writing to be in form
and substance reasonably satisfactory to the Collateral Agent.
3.17. CHATTEL PAPER. Upon the request of the Collateral Agent made
at any time or from time to time, each Assignor shall promptly furnish to the
Collateral Agent a list of all Electronic Chattel Paper held or owned by such
Assignor. Furthermore, if requested by the Collateral Agent, each Assignor shall
promptly take all actions which are reasonably practicable so that the
Collateral Agent has "control" of all Electronic Chattel Paper in accordance
with the requirements of Section 9-105 of the UCC. Upon the request of the
Collateral Agent made at any time while an Event of Default then exists and is
continuing, each Assignor will promptly (and in any event within 10 days)
deliver all of its Tangible Chattel Paper to the Collateral Agent.
3.18. FURTHER ACTIONS. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, certificates, reports
and other assurances or instruments and take such further steps, including any
and all actions as may be necessary or required under the Federal Assignment of
Claims Act, relating to its Accounts, Contracts, Instruments and other property
or rights covered by the security interest hereby granted, as the Collateral
Agent may reasonably require to give effect to the purposes of this Agreement.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Each Assignor
represents and warrants that it is the true and lawful owner of or otherwise has
the right to use the registered Marks and applications for Marks listed in Annex
H hereto for such Assignor and that said listed Marks include all United States
marks and applications for United States marks registered or listed in the
United States Patent and Trademark Office that such Assignor owns or uses in
connection with its business as of the date hereof. Each Assignor represents and
warrants that it owns, is licensed to use or otherwise has the right to use, all
Marks that it uses that are material to such Assignor's business. Each Assignor
further warrants that it has no knowledge of any third party claim received by
it that any aspect of such Assignor's present or contemplated business
operations infringes or will infringe any trademark, service xxxx or trade name
of any other Person other than as could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each
Assignor represents and warrants that all U.S. trademark registrations and
applications listed in Annex H hereto are valid, subsisting, have not been
canceled and that such Assignor is not aware of any third-party claim that any
of said registrations is invalid or unenforceable, and is not aware that there
is any reason that any of said registrations is invalid or unenforceable, except
for the registrations and applications relating to the Marks licensed under the
Trade Name and Service Xxxx License Agreement. Each Assignor hereby grants to
the Collateral Agent an absolute power of attorney to sign, upon the occurrence
and during the continuance of an Event of Default, any document which may be
required by the
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Xxxxxx Xxxxxx Patent and Trademark Office in order to effect an absolute
assignment of all right, title and interest in each Xxxx, and record the same.
4.2. LICENSES AND ASSIGNMENTS. Except as otherwise permitted by the
Secured Debt Agreements, each Assignor hereby agrees not to divest itself of any
right under any material Xxxx of such Assignor (other than in the ordinary
course of business in accordance with its reasonable business judgment) absent
prior written approval of the Collateral Agent, which approval shall not be
unreasonably withheld or delayed.
4.3. INFRINGEMENTS. Each Assignor agrees, promptly upon learning
thereof, to notify the Collateral Agent in writing of the name and address of,
and to furnish such pertinent information that may be available with respect to,
any party who such Assignor believes is infringing or diluting or otherwise
violating any of such Assignor's rights in and to any Xxxx in any manner that
could reasonably be expected to have a Material Adverse Effect, or with respect
to any party claiming that such Assignor's use of any Xxxx material to such
Assignor's business violates in any material respect any property right of that
party. Each Assignor further agrees to prosecute in accordance with reasonable
business practices any Person infringing any Xxxx in any manner that could
reasonably be expected to have a Material Adverse Effect.
4.4. PRESERVATION OF MARKS. Each Assignor agrees to use its Marks
which are material to such Assignor's business in interstate commerce during the
time in which this Agreement is in effect and to take all such other actions as
are reasonably necessary to preserve such Marks as trademarks or service marks
under the laws of the United States (other than any such Marks which such
Assignor determines, in its reasonable business judgment, are no longer used or
useful in its business or operations).
4.5. MAINTENANCE OF REGISTRATION. Each Assignor shall, at its own
expense, diligently process all documents reasonably required to maintain
trademark registrations, including but not limited to affidavits of use and
applications for renewals of registration in the United States Patent and
Trademark Office for all of its material registered Marks, and shall pay all
fees and disbursements in connection therewith and shall not abandon any such
filing of affidavit of use or any such application of renewal prior to the
exhaustion of all administrative and judicial remedies without prior written
consent of the Collateral Agent (other than with respect to registrations and
applications that such Assignor determines, in its reasonable business judgment,
are no longer useful or prudent to pursue).
4.6. REMEDIES. If an Event of Default shall occur and be
continuing, the Collateral Agent may, by written notice to the relevant
Assignor, take any or all of the following actions: (i) declare the entire
right, title and interest of such Assignor in and to each of the Marks, together
with all trademark rights and rights of protection to the same, vested in the
Collateral Agent for the benefit of the Secured Creditors, in which event such
rights, title and interest shall immediately vest, in the Collateral Agent for
the benefit of the Secured Creditors, and the Collateral Agent shall be entitled
to exercise the power of attorney referred to in Section 4.1 hereof to execute,
cause to be acknowledged and notarized and record said absolute assignment with
the applicable agency; (ii) take and use or sell the Marks and the goodwill of
such Assignor's business symbolized by the Marks and the right to carry on the
business and use the assets of such Assignor in connection with which the Marks
have been used; and (iii) direct
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such Assignor to refrain, in which event such Assignor shall refrain, from using
the Marks in any manner whatsoever, directly or indirectly, and such Assignor
shall execute such further documents that the Collateral Agent may reasonably
request to further confirm this and to transfer ownership of the Marks and
registrations and any pending trademark application in the United States Patent
and Trademark Office to the Collateral Agent.
4.7. FUTURE REGISTERED MARKS. If registration for any Xxxx which is
material and/or necessary to its business is issued hereafter to any Assignor as
a result of any application now or hereafter pending before the United States
Patent and Trademark Office, within 30 days of receipt of such certificate, such
Assignor shall deliver to the Collateral Agent a copy of such certificate, and a
grant of security in such Xxxx, to the Collateral Agent and at the expense of
such Assignor, confirming the grant of security in such Xxxx to the Collateral
Agent hereunder, the form of such security to be substantially in the form of
Annex K hereto or in such other form as may be reasonably satisfactory to the
Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Each Assignor
represents and warrants that it is the true and lawful owner of all rights in or
otherwise has the right to use (i) all United States trade secrets and
proprietary information necessary to operate the business of the Assignor (the
"TRADE SECRET RIGHTS"), (ii) the Patents listed in Annex I hereto for such
Assignor and that said Patents include all the United States patents and
applications for United States patents that such Assignor owns as of the date
hereof and (iii) the Copyrights listed in Annex J hereto for such Assignor and
that said Copyrights constitute all the United States copyrights registered with
the United States Copyright Office and applications to United States copyrights
that such Assignor owns as of the date hereof. Each Assignor further warrants
that it has no knowledge of any third party claim that any aspect of such
Assignor's present or contemplated business operations infringes or will
infringe any patent of any other Person or that such Assignor has
misappropriated any trade secret or proprietary information which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Each Assignor hereby grants to the Collateral Agent an
absolute power of attorney to sign, upon the occurrence and during the
continuance of any Event of Default, any document which may be required by the
United States Patent and Trademark Office in order to effect an absolute
assignment of all right, title and interest in each Patent, and to record the
same.
5.2. LICENSES AND ASSIGNMENTS. Except as otherwise permitted by the
Secured Debt Agreements, each Assignor hereby agrees not to divest itself of any
right under any material Patent or Copyright other than in the ordinary course
of business absent prior written approval of the Collateral Agent.
5.3. INFRINGEMENTS. Each Assignor agrees, promptly upon learning
thereof, to furnish the Collateral Agent in writing with all pertinent
information available to such Assignor with respect to any infringement,
contributory infringement or active inducement to infringe in any Patent or
Copyright or to any claim that the practice of any Patent or use of any
Copyright violates any property right of a third party, or with respect to any
misappropriation of any Trade
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Secret Right or any claim that practice of any Trade Secret Right violates any
property right of a third party, in each case, in any manner which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Each Assignor further agrees, absent direction of the
Collateral Agent to the contrary, to diligently prosecute, in accordance with
its reasonable business judgment, any Person infringing any Patent or Copyright
or any Person misappropriating any Trade Secret Right, in each case to the
extent that such infringement or misappropriation, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
5.4. MAINTENANCE OF PATENTS OR COPYRIGHT. At its own expense, each
Assignor shall make timely payment of all post-issuance or other fees required
pursuant to 35 U.S.C. ss. 41 or otherwise to maintain in force its rights under
each Patent or Copyright, absent prior written consent of the Collateral Agent
(other than any such Patents or Copyrights which are no longer used or useful in
its business or operations).
5.5. PROSECUTION OF PATENT APPLICATIONS. At its own expense, each
Assignor shall diligently prosecute all material applications for (i) United
States Patents listed in Annex I hereto and (ii) Copyrights listed on Annex J
hereto, in each case for such Assignor and shall not abandon any such
application prior to exhaustion of all administrative and judicial remedies
(other than applications deemed by such Assignor to be no longer useful or
prudent to pursue), absent written consent of the Collateral Agent.
5.6. REMEDIES. If an Event of Default (or a Default under Section
9.1(e) of the Credit Agreement) shall occur and be continuing, the Collateral
Agent may, by written notice to the relevant Assignor, take any or all of the
following actions: (i) declare the entire right, title, and interest of such
Assignor in each of the Patents and Copyrights vested in the Collateral Agent
for the benefit of the Secured Creditors, in which event such right, title, and
interest shall immediately vest in the Collateral Agent for the benefit of the
Secured Creditors, in which case the Collateral Agent shall be entitled to
exercise the power of attorney referred to in Section 5.1 hereof to execute,
cause to be acknowledged and notarized and to record said absolute assignment
with the applicable agency; (ii) take and practice or sell the Patents and
Copyrights; and (iii) direct such Assignor to refrain, in which event such
Assignor shall refrain, from practicing the Patents and using the Copyrights
directly or indirectly, and such Assignor shall execute such further documents
as the Collateral Agent may reasonably request further to confirm this and to
transfer ownership of the Patents and Copyrights to the Collateral Agent for the
benefit of the Secured Creditors.
5.7. OTHER PATENTS AND COPYRIGHTS. Within 30 days of the
acquisition or issuance of a United States Patent, registration of a Copyright,
or acquisition of a registered Copyright, or of filing of an application for a
United States Patent or Copyright, in each case, which is material and/or
necessary to its business, the relevant Assignor shall deliver to the Collateral
Agent a copy of said Copyright or Patent, or certificate or registration of, or
application therefor, as the case may be, with a grant of security as to such
Patent or Copyright, as the case may be, to the Collateral Agent and at the
expense of such Assignor, confirming the grant of security, the form of such
assignment for security to be substantially in the form of Annex L or M hereto,
as appropriate, or in such other form as may be reasonably satisfactory to the
Collateral Agent.
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ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1. PROTECTION OF COLLATERAL AGENT'S SECURITY. Except as otherwise
permitted by the Secured Debt Agreements, each Assignor will do nothing to
impair the rights of the Collateral Agent in the Collateral. Each Assignor will
at all times maintain insurance, at such Assignor's own expense to the extent
and in the manner provided in the Secured Debt Agreements. Except to the extent
otherwise permitted to be retained by such Assignor or applied by such Assignor
pursuant to the terms of the Secured Debt Agreements, the Collateral Agent
shall, at the time any proceeds of such insurance are distributed to the Secured
Creditors, apply such proceeds in accordance with Section 7.4 hereof. Each
Assignor assumes all liability and responsibility in connection with the
Collateral acquired by it and the liability of such Assignor to pay the
Obligations shall in no way be affected or diminished by reason of the fact that
such Collateral may be lost, destroyed, stolen, damaged or for any reason
whatsoever unavailable to such Assignor.
6.2. WAREHOUSE RECEIPTS NON-NEGOTIABLE. To the extent practicable,
each Assignor agrees that if any warehouse receipt or receipt in the nature of a
warehouse receipt is issued with respect to any of its Inventory, such Assignor
shall request that such warehouse receipt or receipt in the nature thereof shall
not be "negotiable" (as such term is used in Section 7-104 of the Uniform
Commercial Code as in effect in any relevant jurisdiction or under other
relevant law).
6.3. ADDITIONAL INFORMATION.. Each Assignor will, at its own
expense, from time to time upon the reasonable request of the Collateral Agent,
promptly (and in any event within 15 days after its receipt of the respective
request) furnish to the Collateral Agent such information with respect to the
Collateral (including the identity of the Collateral or such components thereof
as may have been requested by the Collateral Agent, the value and location of
such Collateral, etc.) as may be requested by the Collateral Agent. Without
limiting the forgoing, each Assignor agrees that it shall promptly (and in any
event within 10 days after its receipt of the respective request) furnish to the
Collateral Agent such updated Annexes hereto as may from time to time be
reasonably requested by the Collateral Agent.
6.4. FURTHER ACTIONS. Each Assignor will, at its own expense and
upon the reasonable request of the Collateral Agent, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral 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, certificates, reports and other
assurances or instruments and take such further steps relating to the Collateral
and other property or rights covered by the security interest hereby granted,
which the Collateral Agent deems reasonably appropriate or advisable to perfect,
preserve or protect its security interest in the Collateral.
6.5. FINANCING STATEMENTS. Each Assignor agrees to execute and
deliver to the Collateral Agent such financing statements, in form reasonably
acceptable to the Collateral Agent, as the Collateral Agent may from time to
time reasonably request or as are reasonably
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necessary or desirable in the opinion of the Collateral Agent to establish and
maintain a valid, enforceable, perfected security interest in the Collateral as
provided herein and the other rights and security contemplated hereby. Each
Assignor will pay any applicable filing fees, recordation taxes and related
expenses relating to its Collateral. Each Assignor hereby authorizes the
Collateral Agent to file any such financing statements without the signature of
such Assignor where permitted by law (and such authorization includes describing
the Collateral as "all assets" of such Assignor).
ARTICLE VII
REMEDIES UPON OCCURRENCE OF AN EVENT OF DEFAULT
7.1. REMEDIES; OBTAINING THE COLLATERAL UPON DEFAULT. Each Assignor
agrees that, if any Event of Default (or a Default under Section 9.1(e) of the
Credit Agreement (or, after all First Lien Obligations have been paid in full in
cash in accordance with the terms thereof, all Commitments under the Credit
Agreement have been terminated and all Letters of Credit have been terminated or
cash collateralized in a manner satisfactory to the Administrative Agent,
Section 6.01(7) or 6.01(8) of the Senior Secured Notes Indenture)) shall have
occurred and be continuing, then and in every such case, the Collateral Agent,
in addition to any rights now or hereafter existing under applicable law and
under the other provisions of this Agreement, shall have all rights as a secured
creditor under any UCC, and such additional rights and remedies to which a
secured creditor is entitled under the laws in effect in all relevant
jurisdictions and may:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor 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
Assignor's premises where any of the Collateral is located and remove the
same and use in connection with such removal any and all services,
supplies, aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument
or other obligation (including, without limitation, the Accounts and the
Contracts) constituting the Collateral to make any payment required by the
terms of such agreement, instrument or other obligation directly to the
Collateral Agent and may exercise any and all remedies of such Assignor in
respect of such Collateral;
(iii) instruct all banks which have entered into a control agreement
with the Collateral Agent to transfer all moneys, securities and
instruments held by such depositary bank to the Cash Collateral Account or
any other account maintained with or by the Collateral Agent;
(iv) sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof in accordance with Section 7.2 hereof, or
direct the relevant Assignor to sell, assign or otherwise liquidate any or
all of the Collateral or any part thereof, and, in each case, take
possession of the proceeds of any such sale or liquidation;
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(v) take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to deliver the same to the
Collateral Agent at any reasonable place or places designated by the
Collateral Agent, in which event such Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place or
places so designated by the Collateral Agent and there delivered to the
Collateral Agent;
(y) store and keep any Collateral so delivered to the
Collateral Agent at such place or places pending further action by the
Collateral Agent as provided in Section 7.2 hereof; and
(z) while the Collateral shall be so stored and kept,
provide such security and maintenance services as shall be reasonably
necessary to protect the same and to preserve and maintain it in good
condition;
(vi) license or sublicense, whether on an exclusive or nonexclusive
basis, any Marks, Patents or Copyrights included in the Collateral for such
term and on such conditions and in such manner as the Collateral Agent
shall in its sole judgment determine;
(vii) apply any moneys constituting Collateral or proceeds thereof
in accordance with the provisions of Section 7.4; and
(viii) take any other action as specified in clauses (1) through (5),
inclusive, of Section 9-607 of the UCC; and
(ix) register any of the Units in the name of the Collateral Agent
on any Unit Certificate or make any other notation which the Collateral
Agent desires upon any Unit Certificate applicable to any Unit or direct
such Assignor to do same;
it being understood that each Assignor's obligation so to deliver the Collateral
is 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 such Assignor of said obligation. By
accepting the benefits of this Agreement and each other Collateral Document, the
Secured Creditors expressly acknowledge and agree that this Agreement and each
other Collateral Document may be enforced only by the action of the Collateral
Agent acting upon the instructions of the Required Secured Creditors and that no
other Secured Creditor shall have any right individually to seek to enforce this
Agreement or any other Collateral Document or to realize upon the security to be
granted hereby or thereby, it being understood and agreed that such rights and
remedies may be exercised by the Collateral Agent for the benefit of the Secured
Creditors upon the terms of this Agreement, the Intercreditor Agreement and the
other Collateral Documents.
7.2. REMEDIES; DISPOSITION OF THE COLLATERAL. If any Event of
Default shall have occurred and be continuing, then any Collateral repossessed
by the Collateral Agent under or pursuant to Section 7.1 hereof and any other
Collateral whether or not so repossessed by the Collateral Agent, may be sold,
assigned, 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
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be sold, and in general in such manner, at such time or times, at such place or
places and on such terms as the Collateral Agent may, in compliance with any
mandatory requirements of applicable law, determine to be commercially
reasonable. Any of the Collateral may be sold, leased or otherwise disposed of,
in the condition in which the same existed when taken by the Collateral Agent or
after any overhaul or repair at the expense of the relevant Assignor which the
Collateral Agent shall determine to be commercially reasonable. Any such sale,
lease or other disposition may be effected by means of a public disposition or
private disposition, effected in accordance with the applicable requirements (in
each case if and to the extent applicable) of Sections 9-610 through 9-613 of
the UCC and/or such other mandatory requirements of applicable law as may apply
to the respective disposition. The Collateral Agent may, without notice or
publication, adjourn any public or private disposition or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the
disposition, and such disposition may be made at any time or place to which the
disposition may be so adjourned. To the extent permitted by any such requirement
of law, the Collateral Agent may bid for and become the purchaser (and may pay
all or any portion of the purchase price by crediting Obligations against the
purchase price) of the Collateral or any item thereof, offered for disposition
in accordance with this Section 7.2 without accountability to the relevant
Assignor. Each Assignor agrees to do or cause to be done all such other acts and
things as may be reasonably necessary to make such disposition or dispositions
of all or any portion of the Collateral valid and binding and in compliance with
any and all applicable laws, regulations, orders, writs, injunctions, decrees or
awards of any and all courts, arbitrators or governmental instrumentalities,
domestic or foreign, having jurisdiction over any such sale or sales, all at
such Assignor's expense.
7.3. WAIVER OF CLAIMS. Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S
TAKING POSSESSION OR THE COLLATERAL 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 each Assignor hereby further waives,
to the extent permitted by law:
(i) all damages occasioned by such taking of possession or any
such disposition except any damages which are the result of the Collateral
Agent's gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision);
(ii) all other requirements as to the time, place and terms of sale
or other requirements with respect to the enforcement of the Collateral
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 Assignor,
for itself and all who may claim under it, insofar as it or they now or
hereafter lawfully may, hereby waives the benefit of all such laws.
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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 the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against such
Assignor 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 and under such Assignor.
7.4. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Collateral Agent (or, to the extent the Pledge Agreement or any other Collateral
Document requires proceeds of collateral under such other Collateral Document to
be applied in accordance with the provisions of this Agreement, the Pledgee, the
Mortgagee or Collateral Agent under such other Collateral Document) upon any
sale or other disposition of the Collateral, together with all other moneys
received by the Collateral Agent hereunder and under each other Collateral
Document, shall be applied as follows.
(i) first, to the payment of all amounts owing the Collateral
Agent of the type described in clauses (iv), (v), (vi) and (vii) of the
definition of "Obligations";
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), to the payment of all amounts owing
to any Agent of the type described in clauses (vi) and (vii) of the
definition of "Obligations";
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding First Lien Primary Obligations shall be paid to the First Lien
Creditors as provided in Section 7.4(e) hereof, with each First Lien
Creditor receiving an amount equal to its outstanding First Lien Primary
Obligations or, if the proceeds are insufficient to pay in full all such
First Lien Primary Obligations, its First Lien Creditor Pro Rata Share of
the amount remaining to be distributed;
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii) inclusive, an amount
equal to the outstanding First Lien Secondary Obligations shall be paid to
the First Lien Creditors as provided in Section 7.4(e) hereof, with each
First Lien Creditor receiving an amount equal to its outstanding First Lien
Secondary Obligations or, if the proceeds are insufficient to pay in full
all such First Lien Secondary Obligations, its First Lien Creditor Pro Rata
Share of the amount remaining to be distributed;
(v) fifth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iv), inclusive, and subject
to clause (h) of this Section 7.4, to the payment of all amounts owing the
Senior Secured Notes Trustee in its capacity as such pursuant to the Senior
Secured Notes Indenture;
(vi) sixth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (v), inclusive, and subject
to clause (h) of this Section 7.4 an amount equal to the outstanding Second
Lien Obligations shall be paid to the Second Lien Creditors as provided in
Section 7.4(e) hereof, with each Second Lien Creditor
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receiving an amount equal to its outstanding Second Lien Obligations or, if
the proceeds are insufficient to pay in full all such Second Lien
Obligations, its Second Lien Creditor Pro Rata Share of the amount
remaining to be distributed; and
(vii) seventh, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (vi), inclusive, and
following the termination of this Agreement pursuant to Section 10.8(a)
hereof, to the relevant Assignor or to whomever may be lawfully entitled to
receive such surplus.
(b) (i) For purposes of this Agreement, "FIRST LIEN CREDITOR PRO
RATA SHARE" shall mean, when calculating a First Lien Creditor's portion of any
distribution or amount, that amount (expressed as a percentage) equal to a
fraction the numerator of which is the then unpaid amount of such Secured
Creditor's First Lien Primary Obligations or First Lien Secondary Obligations,
as the case may be, and the denominator of which is the then outstanding amount
of all First Lien Primary Obligations or First Lien Secondary Obligations, as
the case may be.
(ii) For the purposes of this Agreement, "SECOND LIEN CREDITOR PRO
RATA SHARE" shall mean, when calculating a Second Lien Creditor's portion of any
distribution or amount, that amount (expressed as a percentage) equal to a
fraction the numerator of which is the then unpaid amount of such Second Lien
Creditor's Second Lien Obligations and the denominator of which is the then
outstanding amount of all Second Lien Obligations.
(c) When payments to First Lien Creditors are based upon their
respective First Lien Creditor Pro Rata Shares, the amounts received by such
First Lien Creditors hereunder shall be applied (for purposes of making
determinations under this Section 7.4 only) (i) first, to their First Lien
Primary Obligations and (ii) second, to their First Lien Secondary Obligations.
If any payment to any First Lien Creditor of its First Lien Creditor Pro Rata
Share of any distribution would result in overpayment to such First Lien
Creditor, such excess amount shall instead be distributed in respect of the
unpaid First Lien Primary Obligations or First Lien Secondary Obligations, as
the case may be, of the other First Lien Creditors, with each First Lien
Creditor whose First Lien Primary Obligations or First Lien Secondary
Obligations, as the case may be, have not been paid in full to receive an amount
equal to such excess amount multiplied by a fraction the numerator of which is
the unpaid First Lien Primary Obligations or First Lien Secondary Obligations,
as the case may be, of such First Lien Creditor and the denominator of which is
the unpaid First Lien Primary Obligations or First Lien Secondary Obligations,
as the case may be, of all First Lien Creditors entitled to such distribution.
If any payment to any Second Lien Creditor of its Second Lien Creditor Pro Rata
Share of any distribution would result in overpayment to such Second Lien
Creditor, such excess shall instead be distributed in respect of the unpaid
Second Lien Obligations of the other Second Lien Creditors with each Second Lien
Creditor whose Second Lien Obligations have not been paid in full to receive an
amount equal to such excess amount multiplied by a fraction, the numerator of
which is the unpaid Second Lien Obligations of such Second Lien Creditor
entitled to distribution and the denominator of which is the unpaid Second Lien
Obligations of all Second Lien Creditors entitled to such distribution.
(d) Each of the Secured Creditors, by their acceptance of the
benefits hereof and of the other Collateral Documents, agrees and acknowledges
that if the Bank Creditors receive a distribution on account of undrawn amounts
with respect to Letters of Credit issued
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under the Credit Agreement (which shall only occur after all outstanding
Revolving Loans under the Credit Agreement and all unreimbursed drawings made
under Letters of Credit have been paid in full), such amounts shall be paid to
the Administrative Agent under the Credit Agreement and held by it, for the
equal and ratable benefit of the Bank Creditors, as cash security for the
repayment of Obligations owing to the Bank Creditors as such. If any amounts are
held as cash security pursuant to the immediately preceding sentence, then upon
the termination of all outstanding Letters of Credit under the Credit Agreement,
and after the application of all such cash security to the repayment of all
Obligations owing to the Bank Creditors after giving effect to the termination
of all such Letters of Credit, if there remains any excess cash, such excess
cash shall be returned by the Administrative Agent to the Collateral Agent for
distribution in accordance with Section 7.4(a) hereof.
(e) All payments required to be made hereunder shall be made (x)
if to the Bank Creditors, to the Administrative Agent for the account of the
Bank Creditors, (y) if to the Interest Rate Creditors, to the trustee, paying
agent or other similar representative (each a "REPRESENTATIVE") for the Interest
Rate Creditors or, in the absence of such a Representative, directly to the
Interest Rate Creditors and (z) if to the Second Lien Creditors, to the Senior
Secured Notes Trustee under the Senior Secured Notes Indenture for the account
of the Second Lien Creditors.
(f) For purposes of applying payments received in accordance with
this Section 7.4, the Collateral Agent shall be entitled to rely upon (i) the
Administrative Agent, (ii) the Representative or, in the absence of such a
Representative, upon the Interest Rate Creditors and (iii) the Senior Secured
Notes Trustee for a determination (which the Administrative Agent, each
Representative, the Interest Rate Creditors and the Senior Secured Notes Trustee
agree (or shall agree) to provide upon request of the Collateral Agent) of the
outstanding Obligations owed to the Bank Creditors, the Interest Rate Creditors
or the Second Lien Creditors, as the case may be. Unless it has received written
notice from a Bank Creditor or an Interest Rate Creditor to the contrary, the
Administrative Agent and each Representative, in furnishing information pursuant
to the preceding sentence, and the Collateral Agent, in acting hereunder, shall
be entitled to assume that no First Lien Secondary Obligations are outstanding.
Unless it has written notice from an Interest Rate Creditor to the contrary, the
Collateral Agent, in acting hereunder, shall be entitled to assume that no
Interest Rate Agreements are in existence.
(g) This Agreement is made with full recourse to each Assignor
(including, without limitation, with full recourse to all assets of such
Assignor) and pursuant to and upon all the warranties, representations,
covenants and agreements on the part of such Assignor contained herein, in the
other Secured Debt Agreements and otherwise in writing in connection herewith or
therewith. It is understood that the Assignors shall remain jointly and
severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral and the aggregate amount of the Obligations.
(h) Notwithstanding anything to the contrary contained in this
Agreement or in the other Collateral Documents, the Second Lien Creditors, by
accepting the benefits of this Agreement and the other Collateral Documents,
hereby expressly acknowledge and agree that (x) the aggregate amount that they
shall be entitled to receive from the exercise of remedies in respect of the
Collateral under this Agreement and the Collateral Documents, will not exceed
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$150,000,000 in aggregate principal amount (plus accrued and unpaid interest and
fees thereon and indemnity and expense reimbursement claims to the extent set
forth in this Agreement, the other Collateral Documents and the Senior Secured
Notes Documents) (or such greater principal amount as is expressly permitted at
such time by the terms of the Credit Agreement (or, if the Credit Agreement is
no longer in effect, such greater principal amount as is permitted at such time
by the terms of the other Secured Debt Agreements), in each case so long as such
greater principal amount is otherwise permitted to be so secured by the terms of
the relevant Secured Debt Agreements), and (y) they shall not be entitled to
receive any application pursuant to Section 7.4(a) hereof in respect of any
Second Lien Excluded Collateral.
7.5. REMEDIES CUMULATIVE. Each and every right, power and remedy
hereby specifically given to the Collateral Agent shall be in addition to every
other right, power and remedy specifically given to the Collateral Agent under
this Agreement, the other Secured Debt Agreements or now or hereafter existing
at law, in equity or by statute and each and every right, power and remedy
whether specifically herein given or otherwise existing may be exercised from
time to time or simultaneously and as often and in such order as may be deemed
expedient by the Collateral Agent. All such rights, powers and remedies shall be
cumulative and the exercise or the beginning of the exercise of one shall not be
deemed a waiver of the right to exercise any other or others. No delay or
omission of the Collateral Agent in the exercise of any such right, power or
remedy and no renewal or extension of any of the Obligations shall impair any
such right, power or remedy or shall be construed to be a waiver of any Default
or Event of Default or an acquiescence thereof. No notice to or demand on any
Assignor in any case shall entitle it to any other or further notice or demand
in similar or other circumstances or constitute a waiver of any of the rights of
the Collateral Agent to any other or further action in any circumstances without
notice or demand. In the event that the Collateral Agent shall bring any suit to
enforce any of its rights hereunder and shall be entitled to judgment, then in
such suit the Collateral Agent may recover reasonable expenses, including
reasonable attorneys' fees, and the amounts thereof shall be included in such
judgment.
7.6. DISCONTINUANCE OF PROCEEDINGS. In case the Collateral Agent
shall have instituted any proceeding to enforce any right, power or remedy under
this Agreement by foreclosure, sale, entry or otherwise, and such proceeding
shall have been discontinued or abandoned for any reason or shall have been
determined adversely to the Collateral Agent, then and in every such case the
relevant Assignor, the Collateral Agent and each holder of any of the
Obligations shall be restored to their former positions and rights hereunder
with respect to the Collateral subject to the security interest created under
this Agreement, and all rights, remedies and powers of the Collateral Agent
shall continue as if no such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1. INDEMNITY. (a) Each Assignor jointly and severally agrees to
indemnify, reimburse and hold the Collateral Agent, each other Secured Creditor
that is an indemnitee under Section 6 of Annex N hereto and their respective
successors, assigns, employees, affiliates and agents (hereinafter in this
Section 8.1 referred to individually as "INDEMNITEE," and collectively as
"INDEMNITEES") harmless from any and all liabilities, obligations, damages,
injuries, penalties,
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claims, demands, actions, suits, judgments and any and all costs and expenses
(including reasonable fees and disbursements of counsel and other professionals)
(for the purposes of this Section 8.1 the foregoing are collectively called
"expenses") of whatsoever kind and nature imposed on, asserted against or
incurred by any of the Indemnitees in any way relating to or arising out of this
Agreement, any other Secured Debt Agreement or any other document executed in
connection herewith or therewith or in any other way connected with the
administration of the transactions contemplated hereby or thereby or the
enforcement of any of the terms of, or the preservation of any rights under any
thereof, or in any way relating to or arising out of the manufacture, ownership,
ordering, purchase, delivery, control, acceptance, lease, financing, possession,
operation, condition, sale, return or other disposition, or use of the
Collateral (including, without limitation, latent or other defects, whether or
not discoverable), the violation of the laws of any country, state or other
governmental body or unit, any tort (including, without limitation, claims
arising or imposed under the doctrine of strict liability, or for or on account
of injury to or the death of any Person (including any Indemnitee), or property
damage), or contract claim; provided that no Indemnitee shall be indemnified
pursuant to this Section 8.1(a) for losses, damages or liabilities to the extent
caused by the gross negligence or willful misconduct of such Indemnitee (as
determined by a court of competent jurisdiction in a final and non-appealable
decision). Each Assignor agrees that upon written notice by any Indemnitee of
the assertion of such a liability, obligation, damage, injury, penalty, claim,
demand, action, suit or judgment, the relevant Assignor shall assume full
responsibility for the defense thereof. Each Indemnitee agrees to use its best
efforts to promptly notify the relevant Assignor of any such assertion of which
such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a) hereof,
each Assignor agrees, jointly and severally, to pay or reimburse the Collateral
Agent for any and all reasonable fees, costs and expenses of whatever kind or
nature incurred in connection with the creation, preservation or protection of
the Collateral Agent's Liens on, and security interest in, the Collateral,
including, without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public offices, payment or
discharge of any taxes or Liens upon or in respect of the Collateral, premiums
for insurance with respect to the Collateral and all other fees, costs and
expenses in connection with protecting, maintaining or preserving the Collateral
and the Collateral Agent's interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting any actions, suits or
proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or (b)
hereof, each Assignor agrees, jointly and severally, to pay, indemnify and hold
each Indemnitee harmless from and against any loss, costs, damages and expenses
which such Indemnitee may suffer, expend or incur in consequence of or growing
out of any misrepresentation by any Assignor in this Agreement, any other
Secured Debt Agreement or in any writing contemplated by or made or delivered
pursuant to or in connection with this Agreement or any other Secured Debt
Agreement.
(d) If and to the extent that the obligations of any Assignor
under this Section 8.1 are unenforceable for any reason, such Assignor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
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8.2. INDEMNITY OBLIGATIONS SECURED BY COLLATERAL; SURVIVAL. Any
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Assignor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment of all of the
other Obligations and notwithstanding the full payment of all the Notes issued,
and Loans made, under the Credit Agreement, the termination of all Letters of
Credit issued under the Credit Agreement, the termination of all Interest Rate
Agreements entered into with the Interest Rate Creditors, the full repayment of
all the outstanding Senior Secured Notes and the payment of all other
Obligations and notwithstanding the discharge thereof.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified. Such
definitions shall be equally applicable to the singular and plural forms of the
terms defined.
"ACCOUNT" shall mean any "account" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, and in any event shall include but shall not be limited to, all rights to
payment of any monetary obligation, whether or not earned by performance, (i)
for property that has been or is to be sold, leased, licensed, assigned or
otherwise disposed of, (ii) for services rendered or to be rendered, (iii) for a
policy of insurance issued or to be issued, (iv) for a secondary obligation
incurred or to be incurred, (v) for energy provided or to be provided, (vi) for
the use or hire of a vessel under a charter or other contract, (vii) arising out
of the use of a credit or charge card or information contained on or for use
with the card, or (viii) as winnings in a lottery or other game of chance
operated or sponsored by a State, governmental unit of a State, or person
licensed or authorized to operate the game by a State or governmental unit of a
State. Without limiting the foregoing, the term "account" shall include all
Health Care Insurance Receivables (if any).
"ADMINISTRATIVE AGENT" shall have the meaning provided in the recitals
of this Agreement.
"AGREEMENT" shall mean this Amended and Restated U.S. Security
Agreement as the same may be modified, supplemented or amended from time to time
in accordance with its terms.
"APPLICABLE VALUE" shall mean, with respect to any Subsidiary of the
Borrower, the aggregate amount, par value, book value as carried by the Borrower
or the market value, whichever is greater, of the capital stock or other
securities of such Subsidiary.
"AS-EXTRACTED COLLATERAL" shall mean "as-extracted collateral" as such
term is defined in the Uniform Commercial Code as in effect on the date hereof
in the State of New York.
"ASSIGNOR" shall have the meaning provided in the preamble to this
Agreement.
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"BANK CREDITORS" shall have the meaning provided in the recitals of
this Agreement.
"BORROWER" shall have the meaning provided in the recitals of this
Agreement.
"BTCC" shall mean BT Commercial Corporation (and shall include any
successor thereto).
"CASH COLLATERAL ACCOUNT" shall mean a cash collateral account
maintained with, and in the sole dominion and control of, the Collateral Agent
for the benefit of the Secured Creditors.
"CHATTEL PAPER" shall mean "chattel paper" as such term is defined in
the Uniform Commercial Code as in effect on the date hereof in the State of New
York. Without limiting the foregoing, the term "Chattel Paper" shall in any
event include all Tangible Chattel Paper and all Electronic Chattel Paper.
"CLASS" shall have the meaning provided in Section 10.2 of this
Agreement.
"COLLATERAL" shall have the meaning provided in Section 1.1(a) of this
Agreement.
"COLLATERAL AGENT" shall mean DBTCA (and any successor Collateral
Agent) acting as Collateral Agent pursuant to this Agreement and any other
Collateral Documents, and shall include any affiliate of DBTCA acting as a
sub-collateral agent pursuant to the Collateral Documents (including, without
limitation, BTCC acting as sub-collateral agent as provided herein). As
appropriate, references to the Collateral Agent shall also include any
additional sub-collateral agents or co-collateral agents as may be appointed
from time to time by the Collateral Agent for purposes of this Agreement in
accordance with the provisions of Section 10.11 of the Credit Agreement.
"COLLECTION BANK" shall have the meaning provided in Section 3.7.
"COMMERCIAL TORT CLAIMS" shall mean "commercial tort claims" as such
term is defined in the Uniform Commercial Code as in effect on the date hereof
in the State of New York.
"CONCENTRATION ACCOUNT" shall have the meaning provided in Section 3.8.
"CONCENTRATION ACCOUNT BANK" shall have the meaning provided in Section
3.8.
"CONTRACT RIGHTS" shall mean all rights of any Assignor under each
Contract, including, without limitation, (i) any and all rights to receive and
demand payments (including without limitation Rentals) under any or all
Contracts, (ii) any and all rights to receive and compel performance under any
or all Contracts and (iii) any and all other rights, interests and claims now
existing or in the future arising in connection with any or all Contracts.
"CONTRACTS" shall mean all contracts between any Assignor and one or
more additional parties (including, without limitation, any and all Interest
Rate Agreements, Leases,
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licensing agreements and any partnership agreements, joint venture agreements
and limited liability company agreements).
"COPYRIGHTS" shall mean any United States copyright owned by any
Assignor, including any registrations of any copyrights, in the United States
Copyright Office or any foreign equivalent office, as well as any application
for a copyright registration now or hereafter made with the United States
Copyright Office or any foreign equivalent office by any Assignor.
"CREDIT AGREEMENT" shall have the meaning provided in the recitals of
this Agreement.
"CREDIT DOCUMENT OBLIGATIONS" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"DB ACCOUNT" shall have the meaning provided in Section 3.9.
"DBTCA" shall mean Deutsche Bank Trust Company Americas (formerly known
as Bankers Trust Company), and shall include any successor thereto.
"DEFAULT" shall mean any event which with notice or lapse of time, or
both, would constitute an Event of Default.
"DEPOSIT ACCOUNTS" shall mean all "deposit accounts" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York.
"DOCUMENTS" shall mean "documents" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"ELECTRONIC CHATTEL PAPER" shall mean "electronic chattel paper" as
such term is defined in the Uniform Commercial Code as in effect on the date
hereof in the State of New York.
"EQUIPMENT" shall mean any "equipment" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, and in any event, shall include, but shall not be limited to, all
machinery, equipment, furnishings, fixtures and vehicles now or hereafter owned
by any Assignor and any and all additions, substitutions and replacements of any
of the foregoing, wherever located, together with all attachments, components,
parts, equipment and accessories installed thereon or affixed thereto.
"EVENT OF DEFAULT" shall mean any Event of Default (or similar term)
under, and as defined in, the Credit Agreement or any Interest Rate Agreement
entered into with an Interest Rate Creditor and shall in any event include,
without limitation, (i) any payment default under the Credit Agreement, any
Interest Rate Agreement or any Senior Secured Notes Document after the
expiration of any applicable grace period and (ii) at any time after the First
Lien Obligations have been paid in full, all Letters of Credit have been
terminated or cash collateralized in a manner satisfactory to the Administrative
Agent and all Commitments have been terminated, any "Event of Default" (or
similar term) under, and as defined in, the Senior Secured Notes Indenture.
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"FIRST LIEN CREDITOR PRO RATA SHARE" shall have the meaning provided in
Section 7.4(b)(i) of this Agreement.
"FIRST LIEN CREDITORS" shall have the meaning provided in the recitals
to this Agreement.
"FIRST LIEN OBLIGATIONS" shall mean all Credit Document Obligations and
all Interest Rate Obligations.
"FIRST LIEN PRIMARY OBLIGATIONS" shall mean (i) in the case of the
Credit Document Obligations, all principal of, premium (if any), and interest
(including without limitation, all interest that accrues after the commencement
of any case, proceeding or other action relating to the bankruptcy, insolvency,
reorganization or similar proceeding of any Assignor at the rate provided for in
the respective documentation, whether or not a claim from post-petition interest
is allowed in such proceeding) on, all Loans under the Credit Agreement, all
Unpaid Drawings, the contingent obligation to reimburse all drawings that may
occur with respect to outstanding Letters of Credit under the Credit Agreement
and all fees owing pursuant to the Credit Agreement and (ii) in the case of
Interest Rate Obligations, all amounts due under any Interest Rate Agreements
(other than indemnities, fees (including, without limitation, attorneys' fees)
and similar obligations and liabilities).
"FIRST LIEN SECONDARY OBLIGATIONS" shall mean all First Lien
Obligations other than First Lien Primary Obligations.
"GENERAL INTANGIBLES" shall mean "general intangibles" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York.
"GOODS" shall mean "goods" as such term is defined in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"HEALTH-CARE-INSURANCE RECEIVABLE" shall mean any
"health-care-insurance receivable" as such term is defined in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"HOLDINGS" shall have the meaning provided in the recitals to this
Agreement.
"INDEMNITEE" shall have the meaning provided in Section 8.1(a) of this
Agreement.
"INSTRUMENT" shall mean "instruments" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"INTEREST RATE AGREEMENTS" shall have the meaning provided in the
recitals of this Agreement.
"INTEREST RATE CREDITORS" shall have the meaning provided in the
recitals of this Agreement.
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"INTEREST RATE OBLIGATIONS" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"INVENTORY" shall mean merchandise, inventory and goods, and all
additions, substitutions and replacements thereof and all accessions thereto,
wherever located, together with all goods, supplies, incidentals, packaging
materials, labels, materials and any other items used or usable in
manufacturing, processing, packaging or shipping same, in all stages of
production from raw materials through work in process to finished goods, and all
products and proceeds of whatever sort and wherever located any portion thereof
which may be returned, rejected, reclaimed or repossessed by the Collateral
Agent from any Assignor's customers, and shall specifically include all
"inventory" as such term is defined in the Uniform Commercial Code as in effect
on the date hereof in the State of New York.
"INVESTMENT PROPERTY" shall mean "investment property" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York.
"LEASE" shall mean any agreement between an Assignor and any other
Person for the lease or rental of Rental Equipment, Inventory or other assets or
property, whether (x) by such Assignor to such Person or (y) by such Person to
such Assignor.
"LENDERS" shall have the meaning provided in the recitals of this
Agreement.
"LETTER-OF-CREDIT RIGHTS" shall mean "letter-of-credit rights" as such
term is defined in the Uniform Commercial Code as in effect on the date hereof
in the State of New York.
"LIENS" shall mean any security interest, mortgage, pledge, lien,
claim, charge, encumbrance, title retention agreement, lessor's interest in a
financing lease or analogous instrument, in, of, or on any Assignor's property.
"LOCATION" of any Assignor, shall mean such Assignor's "location" as
determined pursuant to Section 9-307 of the UCC.
"LOCK BOX ADDRESSES" shall mean "Lock Box Addresses" and "P.O. Boxes"
as such terms are defined in applicable Collection Bank Agreement.
"MARKS" shall mean all right, title and interest in and to any
trademarks, service marks and trade names now held or hereafter acquired by any
Assignor, including any registration of any trademarks and service marks in the
United States Patent and Trademark Office or in any equivalent foreign office
and any trade dress including logos and/or designs used by any Assignor.
"MSO" shall mean each manufacturer's statement or certificate of origin
with respect to any Units.
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"OBLIGATIONS" shall mean and include all of the following:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, principal, premium, interest
(including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any
Assignor at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such
proceeding), reimbursement obligations under Letters of Credit, fees, costs
and indemnities) of each Assignor to the Bank Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection
with, the Credit Agreement and the other Credit Documents to which such
Assignor is a party (including, in the case of each Assignor that is a
Guarantor, all such obligations, liabilities and indebtedness of such
Assignor under the respective Guaranty to which it is a party) and the due
performance and compliance by such Assignor with all of the terms,
conditions and agreements contained in the Credit Agreement and in such
other Credit Documents (all such obligations, liabilities and indebtedness
under this clause (i), except to the extent consisting of obligations or
indebtedness with respect to Interest Rate Agreements, being herein
collectively called the "CREDIT DOCUMENT OBLIGATIONS");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, all interest that accrues
after the commencement of any case, proceeding or other action relating to
the bankruptcy, insolvency, reorganization or similar proceeding of any
Assignor at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such
proceeding) owing by such Assignor to the Interest Rate Creditors under, or
with respect to (including, in the case of each Assignor that is a
Guarantor, all such obligations, liabilities and indebtedness of such
Assignor under the respective Guaranty to which it is a party), each
Interest Rate Agreement, whether such Interest Rate Agreement is now in
existence or hereafter arising, and the due performance and compliance by
such Assignor with all of the terms, conditions and agreements contained
therein (all such obligations, liabilities and indebtedness described in
this clause (ii) being herein collectively called the "INTEREST RATE
OBLIGATIONS");
(iii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, indebtedness
and liabilities (including, without limitation, principal, premium and
interest (including, without limitation, all interest that accrues after
the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any
Assignor at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such
proceeding)) owing by such Assignor to the Second Lien Creditors, whether
now existing or hereafter incurred under, arising out of, or in connection
with the Senior Secured Notes and the other Senior Secured Notes Documents
to which such Assignor is a party (including all such obligations,
indebtedness and liabilities of such Assignor under any guaranty
constituting a Senior Secured Notes Document) and the due performance and
compliance by such Assignor with all of
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the terms, conditions and agreements contained in the Senior Secured Notes
and in such other Senior Secured Notes Documents (all such obligations,
indebtedness and liabilities under this clause (iii) being herein
collectively called the "SECOND LIEN OBLIGATIONS");
(iv) any and all sums advanced by the Collateral Agent in order to
preserve the Collateral or preserve its security interest in the
Collateral;
(v) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities of such
Assignor referred to in clauses (i) through (iii) above, after an Event of
Default shall have occurred and be continuing, the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, or of any exercise by the
Collateral Agent of its rights hereunder, together with reasonable
attorneys' fees and court costs;
(vi) all amounts paid by any Indemnitee as to which such Indemnitee
has the right to reimbursement under Section 8.1 of this Agreement; and
(vii) all amounts owing to any Agent pursuant to any of the Credit
Documents in its capacity as such;
it being acknowledged and agreed that the "Obligations" shall include extensions
of credit of the types described above, whether outstanding on the date of this
Agreement or extended from time to time after the date of this Agreement.
"ORIGINAL U.S. SECURITY AGREEMENT" shall have the meaning provided in
the recitals to this Agreement.
"PATENTS" shall mean any patent to which any Assignor now or hereafter
has any right, title or interest therein, and any divisions, continuations
(including, but not limited to, continuations-in-parts) and improvements
thereof, as well as any application for a patent now or hereafter made by any
Assignor.
"PERMITS" shall mean all licenses, permits, rights, orders, variances,
franchises or authorizations of or from any governmental authority or agency,
except to the extent the grant by the respective Assignor of a security interest
therein pursuant to this Agreement requires the consent of any such governmental
authority or agency or would give such governmental authority or agency the
right to terminate such permit.
"PROCEEDS" shall mean all "proceeds" as such term is defined in the
Uniform Commercial Code as in effect in the State of New York on the date hereof
and, in any event, shall also include, but not be limited to, (i) any and all
proceeds of any insurance, indemnity, warranty or guaranty payable to the
Collateral Agent or any Assignor from time to time with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever) made or due and
payable to any Assignor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Collateral by any governmental authority (or any person acting under color of
governmental authority) and (iii) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
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"REGISTERED ORGANIZATION" shall have the meaning provided in the
Uniform Commercial Code as in effect in the State of New York.
"RENTAL EQUIPMENT" shall mean all Units which are sold or leased, or
held for sale or lease, by any Assignor to one or more third persons.
"RENTALS" shall mean all rents payable under the Leases in respect of
the use of any Rental Equipment by account debtors as lessees of such Rental
Equipment to an Assignor as the lessor of such Rental Equipment.
"REPRESENTATIVE" shall have the meaning provided in Section 7.4(e) of
this Agreement.
"REQUIRED SECOND LIEN CREDITORS" shall mean the holders of at least a
majority of the then outstanding principal amount of all Senior Secured Notes.
"REQUIRED SECURED CREDITORS" shall mean (i) at any time when any Credit
Document Obligations are outstanding or any Commitments or Letters of Credit
under the Credit Agreement exist, the Required Lenders (or, to the extent
required by Section 11.10 of the Credit Agreement, each of the Lenders), (ii) at
any time after all of the Credit Document Obligations have been paid in full in
cash in accordance with the terms thereof and all Commitments and Letters of
Credit under the Credit Agreement have been terminated, the holders of a
majority of the Interest Rate Obligations and (iii) at any time after all Credit
Document Obligations and Interest Rate Obligations have been paid in full in
cash in accordance with the terms thereof and all Commitments and Letters of
Credit under the Credit Agreement have been terminated, the Senior Secured Notes
Trustee acting at the direction of the Required Second Lien Creditors.
"REQUISITE CREDITORS" shall have the meaning provided in Section 10.2
of this Agreement.
"SECOND LIEN CREDITOR PRO RATA SHARE" shall have the meaning provided
in Section 7.4(b)(ii) of this Agreement.
"SECOND LIEN CREDITORS" shall have the meaning provided in the recitals
to this Agreement.
"SECOND LIEN EXCLUDED COLLATERAl" shall mean and include (i) any
property or assets owned by any Unrestricted Subsidiary (as defined in the
Senior Secured Notes Indenture), (ii) all capital stock or other securities of
the Borrower or any Unrestricted Subsidiary and (iii) all capital stock or other
securities of Restricted Subsidiaries (as defined in the Senior Secured Notes
Indenture) to the extent the Applicable Value of such capital stock or other
securities (on a Subsidiary by Subsidiary basis) is equal to or greater than 20%
of the then aggregate principal amount of the Senior Secured Notes outstanding
and (iv) all proceeds and products from any and all of the foregoing excluded
Collateral described in clauses (i) through (iii), unless such proceeds or
products would otherwise constitute Collateral without regard to preceding
clauses (i) through (iii); PROVIDED, HOWEVER, in the event that Rule 3-10 or
Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or
interpreted by the SEC to require (or is replaced with another rule or
regulation, or any other law, rule or regulation is adopted, which
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would require) the filing with the SEC of separate financial statements of any
Restricted Subsidiary of the Borrower due to the fact that such Restricted
Subsidiary's capital stock or other securities secure the Senior Secured Notes,
then the capital stock or other securities of such Restricted Subsidiary shall
automatically be deemed not to be part of the Collateral in which the Second
Lien Creditors have a security interest and shall automatically be deemed to be
part of the Second Lien Excluded Collateral, but only to the extent necessary to
not be subject to such requirement. In such event, the applicable Collateral
Documents shall be deemed to be amended or modified (without the consent of any
Secured Creditor) to include as Second Lien Excluded Collateral the shares of
capital stock or other securities that are so deemed to no longer constitute
part of the Collateral. In the event that Rule 3-10 or Rule 3-16 of Regulation
S-X under the Securities Act is amended, modified or interpreted by the SEC to
permit (or are replaced with another rule or regulation or any other law, rule
or regulation is adopted, which would permit) such Restricted Subsidiary's
capital stock and other securities to secure the Senior Secured Notes in excess
of the amount or value then pledged pursuant to the Collateral Documents without
the filing with the SEC of separate financial statements of such Restricted
Subsidiary, then the capital stock and other securities of such Restricted
Subsidiary shall automatically be deemed to be a part of the Collateral, but
only to the greatest extent which would not cause the financial statements of
such Restricted Subsidiary to be subject to any such financial statement
requirement.
"SECOND LIEN OBLIGATIONS" shall have the meaning provided in the
definition of "Obligations" in this Article XI.
"SECURED CREDITOR GRANTORS" shall have the meaning provided in Section
10.17 of this Agreement.
"SECURED CREDITORS" shall have the meaning provided in the recitals of
this Agreement.
"SECURED DEBT AGREEMENTS" shall mean and include this Agreement, the
other Credit Documents, the Interest Rate Agreements entered into with an
Interest Rate Creditor and the Senior Secured Notes Documents.
"SECURITY BOND OBLIGATIONS" shall have the meaning provided in Section
10.17 of this Agreement.
"SENIOR SECURED NOTEHOLDERS" shall have the meaning provided in the
recitals to this Agreement.
"SENIOR SECURED NOTES" shall have the meaning provided in the recitals
to this Agreement.
"SENIOR SECURED NOTES DOCUMENTS" shall have the meaning provided in the
recitals to this Agreement.
"SENIOR SECURED NOTES INDENTURE" shall have the meaning provided in the
recitals to this Agreement.
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"SENIOR SECURED NOTES TRUSTEE" shall have the meaning provided in the
preamble to this Agreement.
"SOFTWARE" shall mean "software" as such term is defined in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"SUPPORTING OBLIGATIONS" shall mean any "supporting obligation" as such
term is defined in the Uniform Commercial Code as in effect on the date hereof
in the State of New York, now or hereafter owned by any Assignor, or in which
any Assignor has any rights, and, in any event, shall include, but shall not be
limited to all of such Assignor's rights in any Letter-of-Credit Right or
secondary obligation that supports the payment or performance of, and all
security for, any Account, Chattel Paper, Document, General Intangible,
Instrument or Investment Property.
"TANGIBLE CHATTEL PAPER" shall mean "tangible chattel paper" as such
term is defined in the Uniform Commercial Code as in effect on the date hereof
in the State of New York.
"TERMINATION DATE" shall have the meaning provided in Section 10.8(a)
of this Agreement.
"TIMBER-TO-BE-CUT" shall mean "timber-to-be-cut" as such term is used
in the Uniform Commercial Code as in effect on the date hereof in the State of
New York.
"TRADE NAME AND SERVICE XXXX LICENSE AGREEMENT" shall mean the Trade
Name and Service Xxxx License Agreement, dated as of September 1, 1998, among
Space Master International, Inc. as licensor, Space Master Building Systems,
LLC, Space Master Manufacturing, Inc., Space Master Manufacturing of
Pennsylvania, Inc. and Xxxxxxx X. Xxxxxxxxxx, collectively as licensee.
"TRADE SECRET RIGHTS" shall have the meaning provided in Section 5.1 of
this Agreement.
"TRANSMITTING UTILITY" shall mean a "transmitting utility" as such term
is used in the Uniform Commercial Code as in effect on the date hereof in the
State of New York.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
"UNIT CERTIFICATES" shall mean certificates of title, certificates of
ownership or other registration certificates issued or required to be issued
under the certificate of title or other similar laws of any State for any of the
Units owned or leased by any Assignor.
"UNITS" shall mean the mobile structures generally constructed of steel
or using a steel frame and undercarriage with an exterior of wood or aluminum
owned by an Assignor used to provide office, classroom, storage, commercial or
other space, whether in single units or physically attached to such other units
(and including in such form, storage containers, mobile offices and modular
structures and related equipment), which structures are capable of being
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transported to and assembled on remote sites, and which may be equipped with air
conditioning and heating, electrical outlets, floors, partitions, plumbing,
carpeting, moldings, wall coverings, lighting and other accessories.
ARTICLE X
MISCELLANEOUS
10.1. NOTICES. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
courier service and all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by courier, be effective
when deposited in the mails, delivered to the telegraph company, cable company
or overnight courier, as the case may be, or sent by telex or telecopier, except
that notices and communications to the Collateral Agent or any Assignor shall
not be effective until received by the Collateral Agent or such Assignor, as the
case may be. All notices and other communications shall be in writing and
addressed as follows:
(a) if to any Assignor, c/o:
Xxxxxxxx Scotsman, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) if to the Collateral Agent, at:
Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Credit Department
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to:
Deutsche Bank Securities Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(c) if to any Bank Creditor other than the Collateral Agent, at
such address as such Bank Creditor shall have specified in the Credit Agreement;
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(d) if to any Interest Rate Creditor, at such address as such
Interest Rate Creditor shall have specified in writing to each Assignor and the
Collateral Agent;
(e) if to the Senior Secured Notes Trustee or any other Second
Lien Creditor, at:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
EP MN WS3C
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
or at such other address or addressed to such other individual as shall have
been furnished in writing by any Person described above to the party required to
give notice hereunder.
10.2. WAIVER; AMENDMENT. Except as provided in Sections 10.8 and
10.14, none of the terms and conditions of this Agreement, any other Collateral
Document, the Intercreditor Agreement, or any of the defined terms contained in
the Credit Agreement that are incorporated herein or in any such other
Collateral Document pursuant to the terms of this Agreement or in any such other
Collateral Document (but only insofar as such terms are used in this Agreement
or in any such other Collateral Document) may be changed, waived, modified or
varied in any manner whatsoever unless in writing duly signed by each Assignor
and the Collateral Agent (with the written consent of the Required Secured
Creditors); PROVIDED, HOWEVER, that (i) the terms and conditions of the
Intercreditor Agreement may be changed, waived, modified or varied without the
consent of any Assignor, (ii) any change, waiver, modification or variance (x)
affecting the rights and benefits of a single Class of First Lien Creditors (and
not all First Lien Creditors in a like or similar manner) also shall require the
written consent of the Requisite Creditors of such affected Class of First Lien
Creditors and (y) materially and adversely affecting the rights and benefits of
the Second Lien Creditors (and not all Secured Creditors in a like or similar
manner) shall require the written consent of the Requisite Creditors of the
Second Lien Creditors and (iii) notwithstanding anything to the contrary in
clause (ii) above, in any other provision of this Agreement or in any other
Secured Debt Agreement, the provisions of this Agreement and each of the other
Collateral Documents may be changed, modified, supplemented or varied with the
consent of the Assignors directly affected thereby and the Collateral Agent
(with the written consent of the Required Secured Creditors (but excluding the
Second Lien Creditors in their capacity as such)) to secure additional
extensions of credit and add new creditors as "Secured Creditors" hereunder
(either as part of an existing Class of Secured Creditors or as a newly created
class), in each case without any obligation to give any notice to, or receive
any consent from, the Second Lien Creditors in their capacities as such so long
as such change, modification or variance does not expressly violate the
provisions of the Credit Agreement or Article IV or V of the Senior Secured
Notes Indenture. For the purpose of this Agreement and each other Collateral
Document, the term "CLASS" shall mean each class of Secured Creditors, I.E.,
whether (x) the Bank Creditors as holders of the Credit Document Obligations,
(y) the Interest Rate Creditors as the holders of the Interest Rate Obligations
or (z) the Second Lien Creditors as holders of the Second Lien Obligations. For
the purpose of this
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Agreement, the term "REQUISITE CREDITORS" of any Class shall mean each of (x)
with respect to the Credit Document Obligations, the Required Lenders (or all of
the Lenders if required by Section 11.10 of the Credit Agreement), (y) with
respect to the Interest Rate Obligations, the holders of at least a majority of
all Interest Rate Obligations outstanding from time to time under the respective
Interest Rate Agreements and (z) with respect to the Second Lien Obligations,
the Senior Secured Notes Trustee (acting at the direction of the Required Second
Lien Creditors).
10.3. OBLIGATIONS ABSOLUTE. The obligations of each Assignor
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of such Assignor; (b) any
exercise or non-exercise, or any waiver of, any right, remedy, power or
privilege under or in respect of this Agreement or any other Secured Debt
Agreement; or (c) any amendment to or modification of any Secured Debt Agreement
or any security for any of the Obligations; whether or not such Assignor shall
have notice or knowledge of any of the foregoing.
10.4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
each Assignor and its successors and assigns (although no Assignor may assign
its rights and obligations hereunder except in accordance with the provisions of
the Secured Debt Agreements) and shall inure to the benefit of the Collateral
Agent and the other Secured Creditors and their respective successors and
assigns. All agreements, statements, representations and warranties made by each
Assignor herein or in any certificate or other instrument delivered by such
Assignor or on its behalf under this Agreement shall be considered to have been
relied upon by the Secured Creditors and shall survive the execution and
delivery of this Agreement and the other Secured Debt Agreements regardless of
any investigation made by the Secured Creditors or on their behalf.
10.5. HEADINGS DESCRIPTIVE. The headings of the several sections of
this Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement.
10.6. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND,
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH ASSIGNOR HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
ASSIGNOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK
JURISDICTION OVER SUCH ASSIGNOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS JURISDICTION
OVER SUCH ASSIGNOR. EACH ASSIGNOR
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FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH ASSIGNOR
AT ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION 10.1 ABOVE, SUCH SERVICE TO
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH ASSIGNOR HEREBY IRREVOCABLY
WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER
OR UNDER ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY
INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE COLLATERAL
AGENT UNDER THIS AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY ASSIGNOR IN ANY OTHER JURISDICTION.
(b) EACH ASSIGNOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS
OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH PLEDGOR AND EACH SECURED CREDITOR HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
10.7. ASSIGNOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Assignor shall remain
liable to perform all of the obligations, if any, assumed by it with respect to
the Collateral and the Collateral Agent shall not have any obligations or
liabilities with respect to any Collateral by reason of or arising out of this
Agreement, nor shall the Collateral Agent be required or obligated in any manner
to perform or fulfill any of the obligations of any Assignor under or with
respect to any Collateral.
10.8. TERMINATION; RELEASE. (a) On the Termination Date, this
Agreement shall terminate (provided that all indemnities set forth herein
including, without limitation in Section 8.1 hereof and in Section 6 of Annex N
hereto, shall survive such termination) and the Collateral Agent, at the request
and expense of the respective Assignor, will promptly execute and deliver to
such Assignor a proper instrument or instruments (including Uniform Commercial
Code termination statements on form UCC-3) acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver to
such Assignor (without recourse and without any representation or warranty) such
of the Collateral as may be in the possession of the Collateral Agent and as has
not theretofore been sold or otherwise applied or released pursuant to
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this Agreement. As used in this Agreement, "TERMINATION DATE" shall mean the
date upon which the Total Commitment under the Credit Agreement has been
terminated and all Interest Rate Agreements entered into with any Interest Rate
Creditor have been terminated (or cash collateralized in a manner reasonably
satisfactory to the Administrative Agent), no Note under the Credit Agreement is
outstanding and all Loans thereunder have been repaid in full in cash in
accordance with the terms thereof, all Letters of Credit issued under the Credit
Agreement have been terminated (or cash collateralized in a manner satisfactory
to the Administrative Agent), all Second Lien Obligations have been paid in full
in cash (or defeased or discharged) in accordance with the terms thereof and all
other Obligations then due and payable have been paid in full; PROVIDED,
HOWEVER, at such time as (x) all First Lien Obligations have been paid in full
in cash in accordance with the terms thereof and all Commitments under the
Credit Agreement have been terminated and all Letters of Credit have been
terminated or cash collateralized in a manner satisfactory to the Administrative
Agent or (y) the First Lien Creditors have released their Liens on all of the
Collateral then, in either case, this Agreement and the security interests
created hereby shall terminate (provided that all indemnities set forth herein
(including, without limitation, in Section 8.1 hereof) and in Section 6 of Annex
N hereto shall survive such termination) unless, in the case of preceding clause
(x), any Event of Default under the Senior Secured Notes Indenture exists as of
the date on which the First Lien Obligations are repaid in full and terminated
as described in such clause (x), in which case the security interests created
under this Agreement in favor of the Second Lien Creditors will not be released
except to the extent the Collateral or any portion thereof was disposed of in
order to repay the First Lien Obligations (although the security interests
created in favor of the Second Lien Creditors will be released when such Event
of Default and all other Events of Default under the Senior Secured Notes
Indenture cease to exist).
(b) In the event that any part of the Collateral is sold,
transferred or otherwise disposed of (other than to Holdings, the Borrower or a
Subsidiary of Holdings or the Borrower) in accordance with the terms of the
Secured Debt Agreements or is otherwise released with the consent of the
Required Secured Creditors and the proceeds of such sale, transfer or other
disposition, or from such release, are applied in accordance with the provisions
of the respective Secured Debt Agreements, to the extent required to be so
applied, such Collateral will be sold, transferred or otherwise disposed of free
and clear of the Liens created by this Agreement and the Collateral Agent, at
the request and expense of the relevant Assignor, will duly and promptly assign,
transfer and deliver to such Assignor or its designee (without recourse and
without any representation or warranty) such of the Collateral as is then being
(or has been) so sold, transferred or otherwise disposed of, or released, and as
may be in the possession of the Collateral Agent and has not theretofore been
released pursuant to this Agreement. Furthermore, upon the release of any
Subsidiary Guarantor from the Subsidiaries Guaranty in accordance with the
provisions thereof, such Assignor (and the Collateral at such time assigned by
the respective Assignor pursuant hereto) shall be released from this Agreement.
(c) To the extent not otherwise provided in preceding clauses (a)
and (b), the Collateral Agent shall without the consent of any Secured Creditor,
release all or any portion of the Collateral securing the Second Lien
Obligations to the extent provided in the Senior Secured Note Indenture.
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(d) At any time that an Assignor desires that the Collateral Agent
take any action to acknowledge or give effect to any release of Collateral
pursuant to the foregoing Section 10.8(a),(b) or (c) such Assignor shall deliver
to the Collateral Agent a certificate signed by a senior officer of such
Assignor stating that the release of the respective Collateral is permitted
pursuant to such Section 10.8(a), (b) or (c). At any time that the Borrower or
the respective Assignor desires that a Subsidiary of the Borrower which has been
released from the Subsidiaries Guaranty be released hereunder as provided in the
last sentence of Section 10.8(b), it shall deliver to the Collateral Agent a
certificate signed by a principal executive officer of the Borrower and the
respective Assignor stating that the release of the respective Assignor (and its
Collateral) is permitted pursuant to such Section 10.8(b).
(e) The Collateral Agent shall have no liability to any Secured
Creditor for any release of Collateral by it which is in accordance with, or
which the Collateral Agent in good faith believes to be in accordance with, the
provisions of this Section 10.8. Upon any release of Collateral pursuant to
Section 10.8(a) or (b), none of the Secured Creditors shall have any continuing
right or interest in such Collateral.
(f) Without limiting the foregoing provisions of this Section
10.8, to the extent applicable following the qualification of the Senior Secured
Notes Indenture under the Trust Indenture Act (but only insofar as this
Agreement applies to the Second Lien Creditors), the parties hereto agree that
if any amendments to this Agreement or any other Security Document are required
in order to comply with the applicable provisions of the Trust Indenture Act,
such parties shall cooperate and act in good faith to effect such amendments as
promptly as practicable.
10.9. LIMITED OBLIGATIONS. It is the desire and intent of each
Assignor and the Secured Creditors that this Agreement shall be enforced against
each Assignor to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought.
Notwithstanding anything to the contrary contained herein, in furtherance of the
foregoing, it is noted that the obligations of each Assignor that is a
Subsidiary of the Borrower and which has executed a guaranty of any of the
Obligations pursuant to a Secured Debt Agreement may have been limited as
provided therein. To the extent not otherwise provided in a guaranty given by an
Assignor in respect of the Second Lien Obligations, each Assignor, other than
the Borrower (collectively, the "second lien assignors"), the Senior Secured
Notes Trustee and each other Second Lien Creditor hereby confirm that it is the
intention of all such Persons that the grant of the security interest hereunder
by the second lien assignors with respect to the Second Lien Obligations and the
Second Lien Obligations of each such second lien assignor hereunder does not
constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy
Law (as defined in the Senior Secured Notes Indenture), the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal or state law to the extent applicable to this Agreement and the Second
Lien Obligations of the second lien assignors hereunder. To effectuate the
foregoing intention, the Senior Secured Notes Trustee, the other Second Lien
Creditors and the second lien assignors hereby irrevocably agree that the Second
Lien Obligations of the second lien assignors hereunder at any time shall be
limited to the maximum amount (after taking into account any guaranty of the
First Lien Obligations by the second lien assignors) as will result in the
Second Lien
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Obligations of the second lien assignors hereunder not constituting a fraudulent
transfer or conveyance.
10.10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with each Assignor and the
Collateral Agent.
10.11. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.12. THE COLLATERAL AGENT AND THE OTHER SECURED CREDITORS. (a) The
Collateral Agent will hold in accordance with this Agreement all items of the
Collateral at any time received under this Agreement. It is expressly understood
and agreed that the obligations of the Collateral Agent as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement and in Annex N hereto. The Collateral Agent shall act hereunder and
thereunder on the terms and conditions set forth herein and in Annex N hereto.
(b) In addition to the provisions of clause (a) of this Section
10.12 and the other provisions of this Agreement and the other Collateral
Documents, the Secured Creditors (by their acceptance of the benefits of this
Agreement and the other applicable Collateral Documents) also expressly
acknowledge and agree to the other provisions of Annex N hereto.
10.13. BENEFIT OF AGREEMENT. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of and be enforceable by each of the parties hereto and its
successors and assigns.
10.14. ADDITIONAL ASSIGNORS. It is understood and agreed that any
Subsidiary of the Borrower that is required to become a party to this Agreement
after the date hereof pursuant to the requirements of the respective Secured
Debt Agreements, shall become an Assignor hereunder by (x) executing a
counterpart of a U.S. Subsidiary Joinder Agreement substantially in the form of
Exhibit N to the Credit Agreement, and delivering same to the Collateral Agent,
(y) delivering supplements to Annexes A through E, inclusive, and G through J,
inclusive, hereto as are necessary to cause Annexes to be complete and accurate
with respect to such additional Assignor on such date and (z) taking all actions
specified in this Agreement as would have been taken by such Assignor had it
been an original party to this Agreement, in each case with all documents
required above to be delivered to the Collateral Agent and with all documents
and actions above to be taken to the reasonable satisfaction of the Collateral
Agent.
10.15. APPOINTMENT OF BTCC AS SUB-COLLATERAL AGENT. (a) BTCC is
hereby appointed by the Collateral Agent to act, and BTCC agrees that it shall
act, as sub-collateral agent of the Collateral Agent hereunder with respect to
any and all Units of any Assignor which
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from time to time, or at any time, are evidenced by a (or have a related)
Certificate of Title which reflects BTCC as the secured party. Each Assignor,
and each of the Secured Creditors, agrees to the appointment of BTCC as provided
in this Section 10.15. All parties hereto agree that BTCC shall have a perfected
security interest in the Units described above, which security interest shall be
created pursuant to this Agreement and held for the benefit of the Secured
Creditors in accordance with the terms of this Agreement.
(b) The parties hereto acknowledge and agree that, with respect to
Certificated Units held by the Assignors prior to March 26, 2002, the related
Certificates of Title may reflect BTCC as the secured party thereon. Unless and
until the Collateral Agent requests the Assignors to alter the secured party to
directly name the Collateral Agent, such certificates may continue to reflect
BTCC as secured party so long as BTCC continues to act as a sub-collateral agent
of the Collateral Agent hereunder.
(c) With respect to all Units acquired by any Assignor after March
26, 2002, or where the interest of the Collateral Agent (or a sub-collateral
agent) is to be noted thereon after March 26, 2002, the Assignor shall cause the
Collateral Agent to be directly named as the secured party; provided that if for
any reason BTCC is named as the secured party it shall act as sub-collateral
agent of the Collateral Agent with respect thereto as provided above in this
Section 10.15.
(d) With respect to all Units of each Assignor where BTCC is
listed as the secured party, BTCC hereby agrees, for the benefit of the
Collateral Agent and the Secured Creditors, that its holds such security
interests as sub-collateral agent of the Collateral Agent for the benefit of the
Secured Creditors hereunder.
(e) In its capacity as sub-collateral agent of the Collateral
Agent hereunder, BTCC shall have all of the rights specified in Annex N to this
Agreement (and shall act in accordance with the terms and conditions set forth
herein and in said Annex N). So long as BTCC executes and delivers to the
Collateral Agent a copy of this Agreement, no further instrument need be signed
by BTCC to evidence, or with respect to, its appointment as sub-collateral agent
pursuant to this Section 10.15.
10.16. CUSTODIAN AGREEMENT. (a) The parties hereto acknowledge and
agree that, pursuant to the Custodian Agreement, the Custodians defined therein
shall act as provided therein, and shall hold certain Collateral on behalf of
the Collateral Agent. Each Assignor acknowledges and agrees that it shall cause
all Unit Certificates and MSOs with respect to its Units, and all its Leases, to
be delivered to the Custodians to be held by them pursuant to the Custodian
Agreement. All Collateral so held by the Custodians shall be subject to the
security interests created pursuant hereto. Each Assignor shall use good faith
efforts to cause the Custodian Agreement to be complied with at all times by the
Custodians, and shall at all times cause one or more Custodians to be acting
pursuant thereto.
(b) Any Person which becomes an Assignor after the date of this
Agreement pursuant to Section 10.14 shall also become a party to the Custodian
Agreement, as a "Company", in accordance with the relevant provisions thereof.
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10.17. ACKNOWLEDGEMENTS REGARDING SECURITY BOND OBLIGATIONS. For
greater certainty, and without limiting the powers of the Collateral Agent
hereunder or under any of the other Credit Documents, the Borrower hereby
acknowledges that the Collateral Agent shall, for purposes of holding any
security interest granted by any Credit Party in any of its property or assets
pursuant to the laws of the Province of Quebec to secure obligations of such
Credit Party under any debenture or bond (any such obligations, "SECURITY BOND
OBLIGATIONS"), be the holder of an irrevocable power of attorney (FONDE DE
POUVOIR) (within the meaning of the CIVIL CODE OF QUEBEC, as amended) for each
of the First Lien Creditors and the Senior Secured Notes Trustee (on behalf of
the Second Lien Creditors) and in particular for all present and future holders
of any debenture or bond (the First Lien Creditors and the Senior Secured Notes
Trustee (on behalf of the Second Lien Creditors) and any such holders,
collectively, the "SECURED CREDITOR GRANTORS"). In accepting the benefits
afforded to it hereunder, each Secured Creditor Grantor hereby constitutes, to
the extent necessary, the Collateral Agent as the holder of an irrevocable power
of attorney (FONDE DE POUVOIR) (within the meaning of Article 2692 of the CIVIL
CODE OF QUEBEC, as amended) in order to hold security granted by any Credit
Party in the Province of Quebec to secure Security Bond Obligations. Each
assignee of any Secured Creditor Grantor shall be deemed to have confirmed and
ratified the constitution of the Collateral Agent as the holder of such
irrevocable power of attorney (FONDE DE POUVOIR) upon becoming a Lender under
the Credit Agreement as contemplated in Section 11.6(b)(A) thereof or becoming a
Senior Secured Noteholder in accordance with the terms of the Senior Secured
Notes Indenture, as the case may be, and/or by receiving the benefits of the
Collateral Documents. Notwithstanding the provisions of Section 32 of AN ACT
RESPECTING THE SPECIAL POWERS OF LEGAL PERSONS (Quebec), the Collateral Agent
may acquire and be the holder of any debenture or bond. The Borrower hereby
acknowledges that such debenture or bond constitutes a title of indebtedness, as
such term is used in Article 2692 of the CIVIL CODE OF QUEBEC, as amended.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
SCOTSMAN HOLDINGS, INC.,
as an Assignor
By /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and
Treasurer
XXXXXXXX SCOTSMAN, INC.,
as an Assignor
By /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title Senior Vice President,
Chief Financial Officer and
Treasurer
WILLSCOT EQUIPMENT, LLC,
as an Assignor
By: XXXXXXXX SCOTSMAN, INC.,
as Member
By /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title Chief Financial Officer,
Xxxxxxx Scotsman, Inc.,
Sole Member and
Chief Financial Executive,
Willscot Equipment LLC
(1)
SPACE MASTER INTERNATIONAL, INC.,
as an Assignor
By /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer and
Treasurer
TRUCK & TRAILER SALES, INC.,
as an Assignor
By /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer and
Treasurer
EVERGREEN MOBILE COMPANY,
as an Assignor
By /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer and
Treasurer
(2)
Accepted and Agreed to:
DEUTSCHE BANK TRUST COMPANY
AMERICAS (formerly known as Bankers
Trust Company), as Collateral Agent
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Director
BT COMMERCIAL CORPORATION,
as sub-collateral agent
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Director
U.S. BANK NATIONAL ASSOCIATION,
as Senior Secured Notes Trustee for the Second
Lien Creditors
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
(3)
