EXHIBIT 10.3
EXECUTION COPY
GUARANTEE AND COLLATERAL AGREEMENT
dated as of
September 9, 2003,
among
DEX MEDIA WEST, INC.,
DEX MEDIA WEST LLC,
as Borrower,
each other Subsidiary of Holdings
identified herein,
and
JPMORGAN CHASE BANK,
as Collateral Agent
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Table of Contents
Page
ARTICLE I
SECTION 1.01. Credit Agreement...................................................................... 1
SECTION 1.02. Other Defined Terms................................................................... 1
ARTICLE II
SECTION 2.01. Guarantee............................................................................. 5
SECTION 2.02. Guarantee of Payment.................................................................. 5
SECTION 2.03. No Limitations, Etc................................................................... 5
SECTION 2.04. Reinstatement......................................................................... 6
SECTION 2.05. Agreement To Pay; Subrogation......................................................... 6
SECTION 2.06. Information........................................................................... 7
ARTICLE III
SECTION 3.01. Pledge................................................................................ 7
SECTION 3.02. Delivery of the Pledged Collateral.................................................... 7
SECTION 3.03. Representations, Warranties and Covenants............................................. 8
SECTION 3.04. Certification of Limited Liability Company and Limited Partnership Interests.......... 9
SECTION 3.05. Registration in Nominee Name; Denominations........................................... 9
SECTION 3.06. Voting Rights; Dividends and Interest, etc............................................ 9
ARTICLE IV
SECTION 4.01. Security Interest..................................................................... 11
SECTION 4.02. Representations and Warranties........................................................ 12
SECTION 4.03. Covenants............................................................................. 14
SECTION 4.04. Other Action.......................................................................... 18
SECTION 4.05. Covenants regarding Patent, Trademark and Copyright Collateral........................ 20
ARTICLE V
SECTION 5.01. Remedies upon Default................................................................. 21
SECTION 5.02. Application of Proceeds............................................................... 23
SECTION 5.03. Grant of License to Use Intellectual Property......................................... 24
SECTION 5.04. Securities Act, etc................................................................... 24
ARTICLE VI
SECTION 6.01. Indemnity and Subrogation............................................................. 25
SECTION 6.02. Contribution and Subrogation.......................................................... 26
SECTION 6.03. Subordination......................................................................... 26
ARTICLE VII
SECTION 7.01. Notices............................................................................... 26
SECTION 7.02. Security Interest Absolute............................................................ 26
SECTION 7.03. Survival of Agreement................................................................. 27
SECTION 7.04. Binding Effect; Several Agreement..................................................... 27
SECTION 7.05. Successors and Assigns................................................................ 27
SECTION 7.06. Collateral Agent's Fees and Expenses; Indemnification................................. 28
SECTION 7.07. Collateral Agent Appointed Attorney-in-Fact........................................... 28
SECTION 7.08. GOVERNING LAW......................................................................... 29
SECTION 7.09. Waivers; Amendment.................................................................... 29
SECTION 7.10. WAIVER OF JURY TRIAL.................................................................. 30
SECTION 7.11. Severability.......................................................................... 30
SECTION 7.12. Counterparts.......................................................................... 30
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SECTION 7.13. Headings.............................................................................. 30
SECTION 7.14 Jurisdiction; Consent to Service of Process........................................... 30
SECTION 7.15. Additional Subsidiaries............................................................... 31
SECTION 7.16. Right of Setoff....................................................................... 31
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Schedules
Schedule I Subsidiary Loan Parties
Schedule II Equity Interests; Debt Securities
Schedule III Intellectual Property
Schedule IV Insurance Requirements
Exhibits
Exhibit I Form of Supplement to the Guarantee and Collateral Agreement
Exhibit II Form of Perfection Certificate
GUARANTEE AND COLLATERAL AGREEMENT dated as
of September 9, 2003 (this "Agreement"), among DEX
MEDIA WEST, INC., a Delaware corporation
("Holdings"), DEX MEDIA WEST LLC, a Delaware limited
liability company (the "Borrower"), each other
Subsidiary of Holdings identified herein (each such
Subsidiary individually a "Subsidiary Party" and
collectively, the "Subsidiary Loan Parties") and
JPMORGAN CHASE BANK, a New York banking corporation
("JPMCB"), as Collateral Agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as
defined below).
Reference is made to the Credit Agreement dated as of
September 9, 2003 (as amended, supplemented, waived or otherwise modified from
time to time, the "Credit Agreement"), among Dex Media, Inc., Holdings, the
Borrower, the Lenders from time to time party thereto (the "Lenders") and JPMCB,
as Administrative Agent and Collateral Agent (in either or both such capacities,
the "Agent"). The Lenders have agreed to extend credit to the Borrower subject
to the terms and conditions set forth in the Credit Agreement. The obligations
of the Lenders to extend such credit are conditioned upon, among other things,
the execution and delivery of this Agreement. Holdings and the Subsidiary Loan
Parties are Affiliates of the Borrower, will derive substantial benefits from
the extension of credit to the Borrower pursuant to the Credit Agreement and are
willing to execute and deliver this Agreement in order to induce the Lenders to
extend such credit. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Credit Agreement. (a) Capitalized terms used in
this Agreement and not otherwise defined herein have the meanings specified in
the Credit Agreement. All terms defined in the New York UCC (as defined herein)
and not defined in this Agreement have the meanings specified therein; the term
"instrument" shall have the meaning specified in Article 9 of the New York UCC.
(b) The rules of construction specified in Section 1.03 of the
Credit Agreement also apply to this Agreement.
SECTION 1.02. Other Defined Terms. As used in this Agreement,
the following terms have the meanings specified below:
"Account Debtor" means any Person who is or who may become
obligated to any Grantor under, with respect to or on account of an Account.
"Article 9 Collateral" has the meaning assigned to such term
in Section 4.01.
"Borrower Obligations" means (a) the due and punctual payment
by the Borrower of (i) the principal of and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans, when and
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as due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, (ii) each payment required to be made by the Borrower
under the Credit Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursement of disbursements, interest
thereon and obligations to provide cash collateral, and (iii) all other monetary
obligations of the Borrower to any of the Secured Parties under the Credit
Agreement and each of the other Loan Documents, including obligations to pay
fees, expense and reimbursement obligations and indemnification obligations,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), (b) the due and punctual performance of all other
obligations of the Borrower under or pursuant to the Credit Agreement and each
of the other Loan Documents, (c) the due and punctual payment and performance of
all obligations of each Loan Party under each Swap Agreement that (i) is in
effect on the Effective Date with a counterparty that is a Lender or an
Affiliate of a Lender as of the Effective Date or (ii) is entered into after the
Effective Date with any counterparty that is a Lender or an Affiliate of a
Lender at the time such Swap Agreement is entered into and (d) the due and
punctual payment and performance of all obligations in respect of overdrafts and
related liabilities owed to the Administrative Agent (in its individual
capacity) or any of its Affiliates and arising from treasury, depositary and
cash management services in connection with any automated clearinghouse
transfers of funds.
"Collateral" means Article 9 Collateral and Pledged
Collateral.
"Copyright License" means any written agreement, now or
hereafter in effect, granting any right to any third party under any copyright
now or hereafter owned by any Grantor or that any Grantor otherwise has the
right to license, or granting any right to any Grantor under any copyright now
or hereafter owned by any third party, and all rights of any Grantor under any
such agreement.
"Copyrights" means all of the following now owned or hereafter
acquired by any Grantor: (a) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise, and (b) all registrations and applications
for registration of any such copyright in the United States or any other
country, including registrations, recordings, supplemental registrations and
pending applications for registration in the United States Copyright Office,
including those listed on Schedule III.
"Credit Agreement" has the meaning assigned to such term in
the preliminary statement of this Agreement.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person of whatever
nature, and any warrants, options or other rights entitling the holder thereof
to purchase or acquire any of the foregoing.
"Federal Securities Laws" has the meaning assigned to such
term in Section 5.04.
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"General Intangibles" means all "General Intangibles" as
defined in the New York UCC, including all choses in action and causes of action
and all other intangible personal property of any Grantor of every kind and
nature (other than Accounts) now owned or hereafter acquired by any Grantor,
including corporate or other business records, indemnification claims, contract
rights (including rights under leases, whether entered into as lessor or lessee,
Swap Agreements and other agreements), Intellectual Property, goodwill,
registrations, franchises, tax refund claims and any letter of credit,
guarantee, claim, security interest or other security held by or granted to any
Grantor to secure payment by an Account Debtor of any of the Accounts.
"Guarantee Obligations" means the due and punctual payment and
performance of all the obligations of each Loan Party (other than the Borrower)
under or pursuant to this Agreement and each of the other Loan Documents.
"Grantors" means Holdings, the Borrower and the Subsidiary
Loan Parties.
"Guarantors" means Holdings and the Subsidiary Loan Parties.
"Intellectual Property" means all intellectual and similar
property of every kind and nature now owned or hereafter acquired by any
Grantor, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, trade secrets, domain names, confidential or proprietary technical
and business information, know-how, show-how or other data or information,
software and databases and all embodiments or fixations thereof and related
documentation, registrations and franchises, and all additions, improvements and
accessions to, and books and records describing or used in connection with, any
of the foregoing.
"License" means any Patent License, Trademark License,
Copyright License or other license or sublicense agreement to which any Grantor
is a party, other than those license or sublicense agreements entered into prior
to or after the date hereof that by their terms prohibit a grant of a security
interest by such Grantor as licensee thereunder provided, that (i) with respect
to license or sublicense agreements entered into after the date hereof, such
Grantor has used commercially reasonable efforts to prevent the inclusion of
such a prohibition over such license or sublicense and (ii) such licenses or
sublicenses, individually or in the aggregate, are not material to the business
of such Grantor.
"New York UCC" means the Uniform Commercial Code as from time
to time in effect in the State of New York.
"Obligations" means (a) the Borrower Obligations and (b) the
Guarantee Obligations.
"Patent License" means any written agreement, now or hereafter
in effect, granting to any third party any right to make, use or sell any
invention on which a patent, now or hereafter owned by any Grantor or that any
Grantor otherwise has the right to license, is in existence, or granting to any
Grantor any right to make, use or sell any invention on which a patent, now or
hereafter owned by any third party, is in existence, and all rights of any
Grantor under any such agreement.
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"Patents" means all of the following now owned or hereafter
acquired by any Grantor: (a) all letters patent of the United States or the
equivalent thereof in any other country, all registrations and recordings
thereof, and all applications for letters patent of the United States or the
equivalent thereof in any other country, including registrations, recordings and
pending applications in the United States Patent and Trademark Office or any
similar offices in any other country, including those listed on Schedule III,
and (b) all reissues, continuations, divisions, continuations-in-part, renewals
or extensions thereof, and the inventions disclosed or claimed therein,
including the right to make, use and/or sell the inventions disclosed or claimed
therein.
"Perfection Certificate" means a certificate substantially in
the form of Exhibit II, completed and supplemented with the schedules and
attachments contemplated thereby, and duly executed by a Financial Officer and
the chief legal officer of the Borrower.
"Pledged Collateral" has the meaning assigned to such term in
Section 3.01.
"Pledged Debt Securities" has the meaning assigned to such
term in Section 3.01.
"Pledged Securities" means any promissory notes, stock
certificates or other securities now or hereafter included in the Pledged
Collateral, including all certificates, instruments or other documents
representing or evidencing any Pledged Collateral.
"Pledged Stock" has the meaning assigned to such term in
Section 3.01.
"Proceeds" has the meaning specified in Section 9-102 of the
New York UCC.
"Secured Parties" means (a) the Lenders, (b) the
Administrative Agent (and any Affiliate of the Administrative Agent to which any
obligation referred to in clause (c) of the definition of the term "Obligations"
is owed), (c) the Issuing Bank, (d) each counterparty to any Swap Agreement
entered into with a Loan Party the obligations under which constitute
Obligations, (e) the beneficiaries of each indemnification obligation undertaken
by any Loan Party under any Loan Document and (f) the successors and assigns of
each of the foregoing.
"Security Interest" has the meaning assigned to such term in
Section 4.01.
"Trademark License" means any written agreement, now or
hereafter in effect, granting to any third party any right to use any trademark
now or hereafter owned by any Grantor or that any Grantor otherwise has the
right to license, or granting to any Grantor any right to use any trademark now
or hereafter owned by any third party, and all rights of any Grantor under any
such agreement.
"Trademarks" means all of the following now owned or hereafter
acquired by any Grantor: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, trade dress,
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logos, other source or business identifiers, designs and general intangibles of
like nature, now existing or hereafter adopted or acquired, all registrations
and recordings thereof, and all registration and recording applications filed in
connection therewith, including registrations and registration applications in
the United States Patent and Trademark Office or any similar offices in any
State of the United States or any other country or any political subdivision
thereof, and all extensions or renewals thereof, including those listed on
Schedule III, (b) all goodwill associated therewith or symbolized thereby and
(c) all other assets, rights and interests that uniquely reflect or embody such
goodwill.
ARTICLE II
Guarantee
SECTION 2.01. Guarantee. Each Guarantor unconditionally
guarantees, jointly with the other Guarantors and severally, as a primary
obligor and not merely as a surety, the due and punctual payment and performance
of the Borrower Obligations. Each Guarantor further agrees that the Borrower
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Borrower Obligation. Each
Guarantor waives presentment to, demand of payment from and protest to the
Borrower or any other Loan Party of any of the Borrower Obligations, and also
waives notice of acceptance of its guarantee and notice of protest for
nonpayment.
SECTION 2.02. Guarantee of Payment. Each Guarantor further
agrees that its guarantee hereunder constitutes a guarantee of payment when due
and not of collection, and waives any right to require that any resort be had by
the Collateral Agent or any other Secured Party to any security held for the
payment of the Obligations or to any balance of any deposit account or credit on
the books of the Collateral Agent or any other Secured Party in favor of the
Borrower or any other Person.
SECTION 2.03. No Limitations, Etc. (a) Except for termination
of a Guarantor's obligations hereunder as expressly provided in Section 9.14 of
the Credit Agreement, the obligations of each Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Borrower Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder shall
not be discharged or impaired or otherwise affected by (i) the failure of the
Administrative Agent, the Collateral Agent or any other Secured Party to assert
any claim or demand or to exercise or enforce any right or remedy under the
provisions of any Loan Document or otherwise; (ii) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, any Loan Document or any other agreement, including with respect to any
other Guarantor under this Agreement; (iii) the failure to perfect any security
interest in, or the release of, any security held by the Collateral Agent or any
other Secured Party for the Borrower Obligations; (iv) any default, failure or
delay, wilful or otherwise, in the performance of the Borrower Obligations; or
(v) any other act or omission that may or might in any manner or to any
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extent vary the risk of any Guarantor or otherwise operate as a discharge of any
Guarantor as a matter of law or equity (other than the indefeasible payment in
full in cash of all the Borrower Obligations). Each Guarantor expressly
authorizes the Secured Parties to take and hold security for the payment and
performance of the Borrower Obligations, to exchange, waive or release any or
all such security (with or without consideration), to enforce or apply such
security and direct the order and manner of any sale thereof in their sole
discretion or to release or substitute any one or more other guarantors or
obligors upon or in respect of the Borrower Obligations, all without affecting
the obligations of any Guarantor hereunder.
(b) To the fullest extent permitted by applicable law, each
Guarantor waives any defense based on or arising out of any defense of the
Borrower or any other Loan Party or the unenforceability of the Borrower
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower or any other Loan Party, other than the
indefeasible payment in full in cash of all the Borrower Obligations. The
Collateral Agent and the other Secured Parties may, at their election, foreclose
on any security held by one or more of them by one or more judicial or
nonjudicial sales, accept an assignment of any such security in lieu of
foreclosure, compromise or adjust any part of the Borrower Obligations, make any
other accommodation with the Borrower or any other Loan Party or exercise any
other right or remedy available to them against the Borrower or any other Loan
Party, without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Borrower Obligations have been fully and
indefeasibly paid in full in cash. To the fullest extent permitted by applicable
law, each Guarantor waives any defense arising out of any such election even
though such election operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy of
such Guarantor against the Borrower or any other Loan Party, as the case may be,
or any security.
SECTION 2.04. Reinstatement. Each Guarantor agrees that its
guarantee hereunder shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any Borrower Obligation
is rescinded or must otherwise be restored by the Administrative Agent or any
other Secured Party upon the bankruptcy or reorganization of the Borrower, any
other Loan Party or otherwise.
SECTION 2.05. Agreement To Pay; Subrogation. In furtherance of
the foregoing and not in limitation of any other right that the Collateral Agent
or any other Secured Party has at law or in equity against any Guarantor by
virtue hereof, upon the failure of the Borrower or any other Loan Party to pay
any Borrower Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, each
Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the
Collateral Agent for distribution to the applicable Secured Parties in cash the
amount of such unpaid Borrower Obligation. Upon payment by any Guarantor of any
sums to the Collateral Agent as provided above, all rights of such Guarantor
against the Borrower or any other Guarantor arising as a result thereof by way
of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subject to Article VI.
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SECTION 2.06. Information. Each Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower's and each
other Loan Party's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Borrower Obligations
and the nature, scope and extent of the risks that such Guarantor assumes and
incurs hereunder, and agrees that none of the Collateral Agent or the other
Secured Parties will have any duty to advise such Guarantor of information known
to it or any of them regarding such circumstances or risks.
ARTICLE III
Pledge of Securities
SECTION 3.01. Pledge. As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor hereby
assigns and pledges to the Collateral Agent, its successors and assigns, for the
ratable benefit of the Secured Parties, and hereby grants to the Collateral
Agent, its successors and assigns, for the ratable benefit of the Secured
Parties, a security interest in all of such Grantor's right, title and interest
in, to and under (a) the shares of capital stock, membership interests and other
Equity Interests owned by it and listed on Schedule II and any other Equity
Interests obtained in the future by such Grantor and the certificates
representing all such Equity Interests (the "Pledged Stock"); provided that the
Pledged Stock shall not include (i) more than 65% of the issued and outstanding
voting Equity Interests of any Foreign Subsidiary or (ii) to the extent
applicable law requires that a subsidiary of such Grantor issue directors'
qualifying shares, such qualifying shares; (b)(i) the debt securities and
intercompany loans and advances listed opposite the name of such Grantor on
Schedule II, (ii) any debt securities, and intercompany loans or advances in the
future issued to or owed to such Grantor and (iii) the promissory notes and any
other instruments, if any, evidencing such debt securities or intercompany loans
or advances (the "Pledged Debt Securities"); (c) all other property that may be
delivered to and held by the Collateral Agent pursuant to the terms of this
Section 3.01; (d) subject to Section 3.06, all payments of principal or
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of, in exchange for or
upon the conversion of, and all other Proceeds received in respect of, the
securities referred to in clauses (a) and (b) above and the property referred to
in clause (c) above; (e) subject to Section 3.06, all rights and privileges of
such Grantor with respect to the securities and other property referred to in
clauses (a), (b), (c) and (d) above; and (f) all Proceeds of any of the
foregoing (the items referred to in clauses (a) through (f) above being
collectively referred to as the "Pledged Collateral").
TO HAVE AND TO HOLD the Pledged Collateral, together with all
right, title, interest, powers, privileges and preferences pertaining or
incidental thereto, unto the Collateral Agent, its successors and assigns, for
the ratable benefit of the Secured Parties, forever; subject, however, to the
terms, covenants and conditions hereinafter set forth.
SECTION 3.02. Delivery of the Pledged Collateral. (a) Each
Grantor agrees promptly to deliver or cause to be delivered to the Collateral
Agent any and all Pledged Securities.
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(b) Each Grantor will cause (i) any Indebtedness for borrowed
money owed to such Grantor by any other Grantor and (ii) any Indebtedness for
borrowed money in a principal amount in excess of $1,000,000 owed to such
Grantor by any Person (other than another Grantor), in each case (x) other than
Permitted Investments in which a perfected security interest exists pursuant to
Article IV hereof and (y) to be evidenced by a duly executed promissory note to
be pledged and delivered to the Collateral Agent pursuant to the terms hereof.
(c) Upon delivery to the Collateral Agent, (i) any Pledged
Securities shall be accompanied by stock powers duly executed in blank or other
instruments of transfer satisfactory to the Collateral Agent and by such other
instruments and documents as the Collateral Agent may reasonably request and
(ii) all other property composing part of the Pledged Collateral shall be
accompanied by proper instruments of assignment duly executed by the applicable
Grantor and such other instruments or documents as the Collateral Agent may
reasonably request. Each delivery of Pledged Securities shall be accompanied by
a schedule describing the securities, which schedule shall be attached hereto as
Schedule II and made a part hereof; provided that failure to attach any such
schedule hereto shall not affect the validity of such pledge of such Pledged
Securities. Each schedule so delivered shall supplement any prior schedules so
delivered.
SECTION 3.03. Representations, Warranties and Covenants. The
Grantors jointly and severally represent, warrant and covenant to and with the
Collateral Agent, for the benefit of the Secured Parties, that:
(a) Schedule II correctly sets forth the percentage of the
issued and outstanding shares of each class of the Equity Interests of
the issuer thereof represented by such Pledged Stock and includes all
Equity Interests, debt securities and promissory notes required to be
pledged hereunder in order to satisfy the Collateral and Guarantee
Requirement;
(b) the Pledged Stock and Pledged Debt Securities have been
duly and validly issued by the issuers thereof and (i) in the case of
Pledged Stock, are fully paid and nonassessable and (ii) in the case of
Pledged Debt Securities, are legal, valid and binding obligations of
the issuers thereof;
(c) except for the security interests granted hereunder, each
Grantor (i) is the owner, beneficially and of record, of the Pledged
Securities indicated on Schedule II as owned by such Grantor, (ii)
holds the same free and clear of all Liens, other than Liens created by
this Agreement and Permitted Encumbrances, (iii) will make no
assignment, pledge, hypothecation or transfer of, or create or permit
to exist any security interest in or other Lien on, the Pledged
Collateral, other than Liens created by this Agreement and Permitted
Encumbrances and (iv) will defend its title or interest hereto or
therein against any and all Liens (other than Liens created by this
Agreement and Permitted Encumbrances), however arising, of all Persons;
(d) except for restrictions and limitations imposed by the
Loan Documents or securities laws generally, the Pledged Collateral is
and will continue to be freely transferable and assignable, and none of
the Pledged Collateral is or will be
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subject to any option, right of first refusal, shareholders agreement,
charter or by-law provisions or contractual restriction of any nature
that might prohibit, impair, delay or otherwise affect the pledge of
such Pledged Collateral hereunder, the sale or disposition thereof
pursuant hereto or the exercise by the Collateral Agent of rights and
remedies hereunder;
(e) each Grantor has the power and authority to pledge the
Pledged Collateral pledged by it hereunder in the manner hereby done or
contemplated;
(f) no consent or approval of any Governmental Authority, any
securities exchange or any other Person was or is necessary to the
validity of the pledge effected hereby (other than such as have been
obtained and are in full force and effect);
(g) by virtue of the execution and delivery by the Grantors of
this Agreement, when any Pledged Securities are delivered to the
Collateral Agent in accordance with this Agreement, the Collateral
Agent will obtain a valid and perfected first priority lien upon and
security interest in such Pledged Securities as security for the
payment and performance of the Obligations; and
(h) the pledge effected hereby is effective to vest in the
Collateral Agent, for the ratable benefit of the Secured Parties, the
rights of the Collateral Agent in the Pledged Collateral as set forth
herein.
SECTION 3.04. Certification of Limited Liability Company and
Limited Partnership Interests. Each interest in any limited liability company or
limited partnership controlled by any Grantor and pledged hereunder shall be
represented by a certificate, shall be a "security" within the meaning of
Article 8 of the New York UCC and shall be governed by Article 8 of the Delaware
UCC.
SECTION 3.05. Registration in Nominee Name; Denominations. The
Collateral Agent, on behalf of the Secured Parties, shall have the right (in its
sole and absolute discretion) to hold the Pledged Securities in its own name as
pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the
applicable Grantor, endorsed or assigned in blank or in favor of the Collateral
Agent. Each Grantor will promptly give to the Collateral Agent copies of any
notices or other communications received by it with respect to Pledged
Securities registered in the name of such Grantor. The Collateral Agent shall at
all times have the right to exchange the certificates representing Pledged
Securities for certificates of smaller or larger denominations for any purpose
consistent with this Agreement.
SECTION 3.06. Voting Rights; Dividends and Interest, etc. (a)
Unless and until an Event of Default shall have occurred and be continuing:
(i) Each Grantor shall be entitled to exercise any and all
voting and/or other consensual rights and powers inuring to an owner of
Pledged Securities or any part thereof for any purpose consistent with
the terms of this Agreement, the Credit Agreement and the other Loan
Documents; provided that such rights and powers shall not be exercised
in any manner that could materially and adversely affect the rights
inuring to a holder of any Pledged Securities, the rights and
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remedies of any of the Collateral Agent or the other Secured Parties
under this Agreement, the Credit Agreement or any other Loan Document
or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall execute and deliver to each
Grantor, or cause to be executed and delivered to such Grantor, all
such proxies, powers of attorney and other instruments as such Grantor
may reasonably request for the purpose of enabling such Grantor to
exercise the voting and/or consensual rights and powers it is entitled
to exercise pursuant to subparagraph (i) above.
(iii) Each Grantor shall be entitled to receive and retain any
and all dividends, interest, principal and other distributions paid on
or distributed in respect of the Pledged Securities to the extent and
only to the extent that such dividends, interest, principal and other
distributions are permitted by, and otherwise paid or distributed in
accordance with, the terms and conditions of the Credit Agreement, the
other Loan Documents and applicable laws; provided that any noncash
dividends, interest, principal or other distributions that would
constitute Pledged Stock or Pledged Debt Securities, whether resulting
from a subdivision, combination or reclassification of the outstanding
Equity Interests of the issuer of any Pledged Securities or received in
exchange for Pledged Securities or any part thereof, or in redemption
thereof, or as a result of any merger, consolidation, acquisition or
other exchange of assets to which such issuer may be a party or
otherwise, shall be and become part of the Pledged Collateral, and, if
received by any Grantor, shall not be commingled by such Grantor with
any of its other funds or property but shall be held separate and apart
therefrom, shall be held in trust for the benefit of the Collateral
Agent and shall be forthwith delivered to the Collateral Agent in the
same form as so received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event
of Default, all rights of any Grantor to dividends, interest, principal or other
distributions that such Grantor is authorized to receive pursuant to paragraph
(a)(iii) of this Section 3.06 shall cease, and all such rights shall thereupon
become vested in the Collateral Agent, which shall have the sole and exclusive
right and authority to receive and retain such dividends, interest, principal or
other distributions. All dividends, interest, principal or other distributions
received by any Grantor contrary to the provisions of this Section 3.06 shall be
held in trust for the benefit of the Collateral Agent, shall be segregated from
other property or funds of such Grantor and shall be forthwith delivered to the
Collateral Agent in the same form as so received (with any necessary
endorsement). Any and all money and other property paid over to or received by
the Collateral Agent pursuant to the provisions of this paragraph (b) shall be
retained by the Collateral Agent in an account to be established by the
Collateral Agent upon receipt of such money or other property and shall be
applied in accordance with the provisions of Section 5.02. After all Events of
Default have been cured or waived and the Borrower has delivered to the
Collateral Agent a certificate to that effect, the Collateral Agent shall
promptly repay to each Grantor (without interest) all dividends, interest,
principal or other distributions that such Grantor would otherwise be permitted
to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.06 and
that remain in such account.
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(c) Upon the occurrence and during the continuance of an Event
of Default, all rights of any Grantor to exercise the voting and consensual
rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of
this Section 3.06, and the obligations of the Collateral Agent under paragraph
(a)(ii) of this Section 3.06, shall cease, and all such rights shall thereupon
become vested in the Collateral Agent, which shall have the sole and exclusive
right and authority to exercise such voting and consensual rights and powers;
provided that, unless otherwise directed by the Required Lenders, the Collateral
Agent shall have the right from time to time following and during the
continuance of an Event of Default to permit the Grantors to exercise such
rights. After all Events of Default have been cured or waived and the Borrower
has delivered to the Collateral Agent a certificate to that effect, each Grantor
will have the right to exercise the voting and consensual rights and powers that
such Grantor would otherwise be entitled to exercise pursuant to the terms of
paragraph (a)(i) above.
ARTICLE IV
Security Interests in Personal Property
SECTION 4.01. Security Interest. (a) As security for the
payment or performance, as the case may be, in full of the Obligations, each
Grantor hereby assigns and pledges to the Collateral Agent, its successors and
assigns, for the ratable benefit of the Secured Parties, and hereby grants to
the Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest (the "Security Interest") in all right,
title and interest in or to any and all of the following assets and properties
now owned or at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the "Article 9 Collateral"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Letter-of-credit rights;
(xi) all books and records pertaining to the Article 9
Collateral; and
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(xii) to the extent not otherwise included, all Proceeds
and products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any of the
foregoing.
(b) Each Grantor hereby irrevocably authorizes the Collateral
Agent at any time and from time to time to file in any relevant jurisdiction any
initial financing statements (including fixture filings) with respect to the
Article 9 Collateral or any part thereof and amendments thereto that contain the
information required by Article 9 of the Uniform Commercial Code of each
applicable jurisdiction for the filing of any financing statement or amendment,
including (i) whether such Grantor is an organization, the type of organization
and any organizational identification number issued to such Grantor, (ii) in the
case of a financing statement filed as a fixture filing, a sufficient
description of the real property to which such Article 9 Collateral relates and
(iii) a description of collateral that describes such property in any other
manner as the Collateral Agent may reasonably determine is necessary or
advisable to ensure the perfection of the security interest in the Article 9
Collateral granted to the Collateral Agent, including describing such property
as "all assets" or "all property". Each Grantor agrees to provide such
information to the Collateral Agent promptly upon request.
Each Grantor also ratifies its authorization for the
Collateral Agent to file in any relevant jurisdiction any initial financing
statements or amendments thereto if filed prior to the date hereof.
The Collateral Agent is further authorized to file with the
United States Patent and Trademark Office or United States Copyright Office (or
any successor office or any similar office in any other country) such documents
as may be necessary or advisable for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by each
Grantor, without the signature of any Grantor, and naming any Grantor or the
Grantors as debtors and the Collateral Agent as secured party.
(c) The Security Interest is granted as security only and
shall not subject the Collateral Agent or any other Secured Party to, or in any
way alter or modify, any obligation or liability of any Grantor with respect to
or arising out of the Article 9 Collateral.
SECTION 4.02. Representations and Warranties. The Grantors
jointly and severally represent and warrant to the Collateral Agent and the
Secured Parties that:
(a) Each Grantor has good and valid rights in and title to the
Article 9 Collateral with respect to which it has purported to grant a
Security Interest hereunder and has full power and authority to grant
to the Collateral Agent the Security Interest in such Article 9
Collateral pursuant hereto and to execute, deliver and perform its
obligations in accordance with the terms of this Agreement, without the
consent or approval of any other Person other than any consent or
approval that has been obtained and is in full force and effect.
(b) The Perfection Certificate has been duly prepared,
completed and executed and the information set forth therein, including
the exact legal name of each Grantor, is correct and complete as of the
Effective Date. Uniform Commercial Code financing statements (including
fixture filings, as applicable) or
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other appropriate filings, recordings or registrations containing a
description of the Article 9 Collateral have been prepared by the
Collateral Agent based upon the information provided to the Collateral
Agent in the Perfection Certificate for filing in each governmental,
municipal or other office specified in Schedule 6 to the Perfection
Certificate (or specified by notice from the Borrower to the Collateral
Agent after the Effective Date in the case of filings, recordings or
registrations required by Section 5.03(a) or 5.13 of the Credit
Agreement), and constitute all the filings, recordings and
registrations (other than filings required to be made in the United
States Patent and Trademark Office and the United States Copyright
Office in order to perfect the Security Interest in Article 0
Xxxxxxxxxx xxxxxxxxxx xx Xxxxxx Xxxxxx Patents, Trademarks and
Copyrights) that are necessary to publish notice of and protect the
validity of and to establish a valid and perfected security interest in
favor of the Collateral Agent (for the ratable benefit of the Secured
Parties) in respect of all Article 9 Collateral in which the Security
Interest may be perfected by filing, recording or registration in the
United States (or any political subdivision thereof) and its
territories and possessions, and no further or subsequent filing,
refiling, recording, rerecording, registration or reregistration is
necessary in any such jurisdiction, except as provided under applicable
law with respect to the filing of continuation statements or
amendments. Each Grantor represents and warrants that a fully executed
agreement in the form hereof containing a description of all Article 9
Collateral consisting of Intellectual Property with respect to United
States registered Patents (and Patents for which United States
registration applications are pending), United States registered
Trademarks (and Trademarks for which United States registration
applications are pending) and United States registered Copyrights (and
Copyrights for which United States registration applications are
pending) has been delivered to the Collateral Agent for recording with
the United States Patent and Trademark Office and the United States
Copyright Office pursuant to 35 U.S.C. Section 261, 15 U.S.C. Section
1060 or 17 U.S.C. Section 205 and the regulations thereunder, as
applicable, and otherwise as may be required pursuant to the laws of
any other applicable jurisdiction and reasonably requested by the
Collateral Agent, to protect the validity of and to establish a valid
and perfected security interest in favor of the Collateral Agent (for
the ratable benefit of the Secured Parties) in respect of all Article 9
Collateral consisting of such Intellectual Property in which a security
interest may be perfected by recording with the United States Patent
and Trademark Office and the United States Copyright Office, and no
further or subsequent filing, refiling, recording, rerecording,
registration or reregistration is necessary (other than such actions as
are necessary to perfect the Security Interest with respect to any
Article 9 Collateral consisting of Patents, Trademarks and Copyrights
(or registration or application for registration thereof) acquired or
developed after the date hereof).
(c) The Security Interest constitutes (i) a legal and valid
security interest in all the Article 9 Collateral securing the payment
and performance of the Obligations, (ii) subject to the filings
described in Section 4.02(b), a perfected security interest in all
Article 9 Collateral in which a security interest may be perfected by
filing, recording or registering a financing statement or analogous
document in the United States (or any political subdivision thereof)
and its territories and possessions pursuant to the Uniform Commercial
Code or other
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applicable law in such jurisdictions and (iii) a security interest that
shall be perfected in all Article 9 Collateral in which a security
interest may be perfected upon the receipt and recording of this
Agreement with the United States Patent and Trademark Office and the
United States Copyright Office, as applicable, and otherwise as may be
required pursuant to the laws of any other applicable jurisdiction. The
Security Interest is and shall be prior to any other Lien on any of the
Article 9 Collateral, other than Liens expressly permitted to be prior
to the Security Interest pursuant to Section 6.02 of the Credit
Agreement.
(d) The Article 9 Collateral is owned by the Grantors free and
clear of any Lien, other than Liens expressly permitted pursuant to
Section 6.02 of the Credit Agreement. None of the Grantors has filed or
consented to the filing of (i) any financing statement or analogous
document under the Uniform Commercial Code or any other applicable laws
covering any Article 9 Collateral, (ii) any assignment in which any
Grantor assigns any Article 9 Collateral or any security agreement or
similar instrument covering any Article 9 Collateral with the United
States Patent and Trademark Office or the United States Copyright
Office or (iii) any assignment in which any Grantor assigns any Article
9 Collateral or any security agreement or similar instrument covering
any Article 9 Collateral with any foreign governmental, municipal or
other office, which financing statement or analogous document,
assignment, security agreement or similar instrument is still in
effect, except, in each case, for Liens expressly permitted pursuant to
Section 6.02 of the Credit Agreement.
SECTION 4.03. Covenants. (a) Each Grantor agrees promptly to
notify the Collateral Agent in writing of any change (i) in its legal name, (ii)
in the location of any office in which it maintains books or records relating to
Article 9 Collateral owned by it or any office or facility at which Article 9
Collateral owned by it is located (including the establishment of any new such
office or facility), (iii) in its identity or type of organization or corporate
structure, (iv) in its Federal Taxpayer Identification Number or organizational
identification number or (v) in its jurisdiction of organization. Each Grantor
agrees to promptly provide the Collateral Agent with certified organizational
documents reflecting any of the changes described in the immediately preceding
sentence. Each Grantor agrees not to effect or permit any change referred to in
the first sentence of this paragraph (a) unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the
Collateral Agent to continue at all times following such change to have a valid,
legal and perfected first priority security interest in all the Article 9
Collateral. Each Grantor agrees promptly to notify the Collateral Agent if any
material portion of the Article 9 Collateral owned or held by such Grantor is
damaged or destroyed.
(b) Each Grantor agrees to maintain, at its own cost and
expense, such complete and accurate records with respect to the Article 9
Collateral owned by it in accordance with reasonably prudent and standard
practices used in industries that are the same as or similar to those in which
such Grantor is engaged, and, at such time or times as the Collateral Agent may
reasonably request, to prepare and deliver to the Collateral Agent a schedule or
schedules in form and detail reasonably satisfactory to the Collateral Agent
showing the identity, amount and location of any and all Article 9 Collateral.
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(c) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to Section 5.01(a)
of the Credit Agreement, the Borrower shall deliver to the Collateral Agent a
certificate executed by a Financial Officer and the chief legal officer of the
Borrower (i) setting forth the information required pursuant to Schedule 6 of
the Perfection Certificate or confirming that there has been no change in such
information since the date of such certificate or the date of the most recent
certificate delivered pursuant to this Section 4.03(c) and (ii) certifying that
all Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations, including
all refilings, rerecordings and reregistrations, containing a description of the
Collateral have been filed of record in each governmental, municipal or other
appropriate office in each jurisdiction identified pursuant to clause (i) of
this Section 4.03(c) to the extent necessary to protect and perfect the Security
Interest for a period of not less than 18 months after the date of such
certificate (except as noted therein with respect to any continuation statements
to be filed within such period). Each certificate delivered pursuant to this
Section 4.03(c) shall identify in the format of Schedule III to this Agreement
all Intellectual Property of any Grantor in existence on the date thereof and
not then listed on such Schedules or previously so identified to the Collateral
Agent.
(d) Each Grantor shall, at its own expense, take any and all
actions necessary to defend title to the Article 9 Collateral against all
Persons and to defend the Security Interest of the Collateral Agent in the
Article 9 Collateral and the priority thereof against any Lien not expressly
permitted to be prior to the Security Interest pursuant to Section 6.02 of the
Credit Agreement.
(e) Each Grantor agrees, at its own expense, to execute,
acknowledge, deliver and cause to be duly filed all such further instruments and
documents and take all such actions as the Collateral Agent may from time to
time reasonably request to better assure, preserve, protect and perfect the
Security Interest and the rights and remedies created hereby, including the
payment of any fees and taxes required in connection with the execution and
delivery of this Agreement, the granting of the Security Interest and the filing
of any financing statements (including fixture filings) or other documents in
connection herewith or therewith. If any amount payable under or in connection
with any of the Article 9 Collateral shall be or become evidenced by any
promissory note or other instrument, such note or instrument shall be
immediately pledged and delivered to the Collateral Agent, duly endorsed in a
manner satisfactory to the Collateral Agent.
Without limiting the generality of the foregoing, each Grantor
hereby authorizes the Collateral Agent, with prompt notice thereof to the
Grantors, to supplement this Agreement by supplementing Schedule III or adding
additional schedules hereto to specifically identify any asset or item that may
constitute Copyrights, Licenses, Patents or Trademarks; provided that any
Grantor shall have the right, exercisable within 10 days after it has been
notified by the Collateral Agent of the specific identification of such Article
9 Collateral, to advise the Collateral Agent in writing of any inaccuracy of the
representations and warranties made by such Grantor hereunder with respect to
such Article 9 Collateral. Each Grantor agrees that it will use its commercially
reasonable efforts to take such action as shall be necessary in order that all
representations and warranties hereunder shall be true and correct with respect
to such Article 9 Collateral
16
within 30 days after the date it has been notified by the Collateral Agent of
the specific identification of such Article 9 Collateral.
(f) The Collateral Agent and such Persons as the Collateral
Agent may reasonably designate shall have the right, at the Grantors' own cost
and expense, to inspect the Article 9 Collateral, all records related thereto
(and to make extracts and copies from such records) and the premises upon which
any of the Article 9 Collateral is located, at reasonable times and intervals
during normal business hours upon reasonable advance notice to the respective
Grantor, to discuss the Grantors' affairs with the officers of the Grantors and
their independent accountants and to verify under reasonable procedures, in
accordance with Section 5.03 of the Credit Agreement, the validity, amount,
quality, quantity, value, condition and status of, or any other matter relating
to, the Article 9 Collateral, including, in the case of Accounts or Article 9
Collateral in the possession of any third person, by contacting Account Debtors
or the third person possessing such Article 9 Collateral for the purpose of
making such a verification. Subject to Section 9.12 of the Credit Agreement, the
Collateral Agent shall have the right to share any information it gains from
such inspection or verification with any Secured Party.
(g) At its option, the Collateral Agent may discharge past due
taxes, assessments, charges, fees, Liens, security interests or other
encumbrances at any time levied or placed on the Article 9 Collateral and not
permitted pursuant to Section 6.02 of the Credit Agreement, and may pay for the
maintenance and preservation of the Article 9 Collateral to the extent any
Grantor fails to do so as required by the Credit Agreement or this Agreement,
and each Grantor jointly and severally agrees to reimburse the Collateral Agent
on demand for any payment made or any expense incurred by the Collateral Agent
pursuant to the foregoing authorization; provided, however, that nothing in this
Section 4.03(g) shall be interpreted as excusing any Grantor from the
performance of, or imposing any obligation on the Collateral Agent or any
Secured Party to cure or perform, any covenants or other promises of any Grantor
with respect to taxes, assessments, charges, fees, Liens, security interests or
other encumbrances and maintenance as set forth herein or in the other Loan
Documents.
(h) If at any time any Grantor shall take a security interest
in any property that has a value in excess of $1,000,000 of an Account Debtor or
any other Person to secure payment and performance of an Account, such Grantor
shall promptly assign such security interest to the Collateral Agent to the
extent permitted by any contracts or arrangements to which such property is
subject. Such assignment need not be filed of public record unless necessary to
continue the perfected status of the security interest against creditors of and
transferees from the Account Debtor or other Person granting the security
interest.
(i) Each Grantor shall remain liable to observe and perform
all the conditions and obligations to be observed and performed by it under each
contract, agreement or instrument relating to the Article 9 Collateral, all in
accordance with the terms and conditions thereof, and each Grantor jointly and
severally agrees to indemnify and hold harmless the Collateral Agent and the
Secured Parties from and against any and all liability for such performance.
17
(j) None of the Grantors shall make or permit to be made an
assignment, pledge or hypothecation of the Article 9 Collateral or shall grant
any other Lien in respect of the Article 9 Collateral, except as expressly
permitted by the Credit Agreement. None of the Grantors shall make or permit to
be made any transfer of the Article 9 Collateral and each Grantor shall remain
at all times in possession of the Article 9 Collateral owned by it, except that
(i) Inventory may be sold in the ordinary course of business and (ii) unless and
until the Collateral Agent shall notify the Grantors in writing that an Event of
Default shall have occurred and be continuing and that during the continuance
thereof the Grantors shall not sell, convey, lease, assign, transfer or
otherwise dispose of any Article 9 Collateral, the Grantors may use and dispose
of the Article 9 Collateral in any lawful manner not inconsistent with the
provisions of this Agreement, the Credit Agreement or any other Loan Document.
(k) None of the Grantors will, without the Collateral Agent's
prior written consent, grant any extension of the time of payment of any
Accounts included in the Article 9 Collateral, compromise, compound or settle
the same for less than the full amount thereof, release, wholly or partly, any
Person liable for the payment thereof or allow any credit or discount whatsoever
thereon, other than extensions, credits, discounts, compromises or settlements
granted or made in the ordinary course of business and consistent with its
current practices and in accordance with reasonably prudent and standard
practice used in industries that are the same as or similar to those in which
such Grantor is engaged.
(l) The Grantors, at their own expense, shall maintain or
cause to be maintained insurance covering physical loss or damage to the
Inventory and Equipment in accordance with the requirements set forth in
Schedule IV hereto and Section 5.07 of the Credit Agreement. Each Grantor
irrevocably makes, constitutes and appoints the Collateral Agent (and all
officers, employees or agents designated by the Collateral Agent) as such
Grantor's true and lawful agent (and attorney-in-fact) for the purpose, during
the continuance of an Event of Default, of making, settling and adjusting claims
in respect of Article 9 Collateral under policies of insurance, endorsing the
name of such Grantor on any check, draft, instrument or other item of payment
for the proceeds of such policies of insurance and for making all determinations
and decisions with respect thereto. In the event that any Grantor at any time or
times shall fail to obtain or maintain any of the policies of insurance required
hereby or to pay any premium in whole or part relating thereto, the Collateral
Agent may, without waiving or releasing any obligation or liability of the
Grantors hereunder or any Event of Default, in its sole discretion, obtain and
maintain such policies of insurance and pay such premium and take any other
actions with respect thereto as the Collateral Agent deems advisable. All sums
disbursed by the Collateral Agent in connection with this Section 4.03(l),
including reasonable attorneys' fees, court costs, expenses and other charges
relating thereto, shall be payable, upon demand, by the Grantors to the
Collateral Agent and shall be additional Obligations secured hereby.
(m) Each Grantor shall maintain, in form and manner reasonably
satisfactory to the Collateral Agent, its Chattel Paper and its books, records
and documents evidencing or pertaining thereto with an appropriate reference to
the fact that such Chattel Paper has been assigned to the Collateral Agent for
the benefit of the Secured Parties and that the Collateral Agent has a security
interest therein.
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SECTION 4.04. Other Actions. In order to further insure the
attachment, perfection and priority of, and the ability of the Collateral Agent
to enforce, the Collateral Agent's security interest in the Article 9
Collateral, each Grantor agrees, in each case at such Grantor's own expense, to
take the following actions with respect to the following Article 9 Collateral:
(a) Instruments and Tangible Chattel Paper. If any Grantor
shall at any time hold or acquire any Instruments or Tangible Chattel
Paper, such Grantor shall forthwith endorse, assign and deliver the
same to the Collateral Agent, accompanied by such instruments of
transfer or assignment duly executed in blank as the Collateral Agent
may from time to time reasonably request.
(b) Deposit Accounts. For each deposit account that any
Grantor at any time opens or maintains, such Grantor shall, at the
Collateral Agent's written request cause the depositary bank to agree
to comply at any time with instructions from the Collateral Agent to
such depositary bank directing the disposition of funds from time to
time credited to such deposit account, without further consent of such
Grantor or any other Person, pursuant to an agreement in form and
substance satisfactory to the Collateral Agent. The Collateral Agent
agrees with each Grantor that the Collateral Agent shall not give any
such instructions, unless an Event of Default has occurred and is
continuing. The provisions of this paragraph shall not apply to (A) any
deposit account for which any Grantor, the depositary bank and the
Collateral Agent have entered into a cash collateral agreement
specially negotiated among such Grantor, the depositary bank and the
Collateral Agent for the specific purpose set forth therein and (B) any
deposit account for which the Collateral Agent is the depositary bank.
(c) Investment Property. Except to the extent otherwise
provided in Article III, if any Grantor shall at any time hold or
acquire (i) any Certificated Securities of another Grantor or (ii) any
Certificated Securities with a value in excess of $1,000,000 of any
Person (other than another Grantor), in each case such Grantor shall
forthwith endorse, assign and deliver the same to the Collateral Agent,
accompanied by such instruments of transfer or assignment duly executed
in blank as the Collateral Agent may from time to time specify. If any
securities now or hereafter acquired by any Grantor are uncertificated
and are issued to such Grantor or its nominee directly by the issuer
thereof, such Grantor shall immediately notify the Collateral Agent
thereof and, at the Collateral Agent's written request, pursuant to an
agreement in form and substance reasonably satisfactory to the
Collateral Agent, either (i) cause the issuer to agree to comply with
instructions from the Collateral Agent as to such securities, without
further consent of any Grantor or such nominee, or (ii) arrange for the
Collateral Agent to become the registered owner of the securities. If
any securities, whether certificated or uncertificated, or other
investment property now or hereafter acquired by any Grantor are held
by such Grantor or its nominee through a securities intermediary or
commodity intermediary, such Grantor shall immediately notify the
Collateral Agent thereof and, at the Collateral Agent's written
request, pursuant to an agreement in form and substance reasonably
satisfactory to the Collateral Agent, either (A) cause such securities
intermediary or (as the case may be) commodity intermediary to agree to
comply with
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entitlement orders or other instructions from the Collateral Agent to
such securities intermediary as to such securities or other investment
property or (as the case may be) to apply any value distributed on
account of any commodity contract as directed by the Collateral Agent
to such commodity intermediary, in each case without further consent of
any Grantor or such nominee, or (B) in the case of Financial Assets or
other Investment Property held through a securities intermediary,
arrange for the Collateral Agent to become the entitlement holder with
respect to such investment property, with the Grantor being permitted,
only with the consent of the Collateral Agent, to exercise rights to
withdraw or otherwise deal with such investment property. The
Collateral Agent agrees with each of the Grantors that the Collateral
Agent shall not give any such entitlement orders or instructions or
directions to any such issuer, securities intermediary or commodity
intermediary, and shall not withhold its consent to the exercise of any
withdrawal or dealing rights by any Grantor, unless an Event of Default
has occurred and is continuing. The provisions of this paragraph (c)
shall not apply to any financial assets credited to a securities
account for which the Collateral Agent is the securities intermediary.
(d) Electronic Chattel Paper and Transferable Records. If any
Grantor at any time holds or acquires an interest in any Electronic
Chattel Paper or any "transferable record", as that term is defined in
Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act or in Section 16 of the Uniform Electronic Transactions
Act as in effect in any relevant jurisdiction, such Grantor shall
promptly notify the Collateral Agent thereof and, at the request of the
Collateral Agent, shall take such action as the Collateral Agent may
reasonably request to vest in the Collateral Agent control under New
York UCC Section 9-105 of such Electronic Chattel Paper or control
under Section 201 of the Federal Electronic Signatures in Global and
National Commerce Act or, as the case may be, Section 16 of the Uniform
Electronic Transactions Act, as so in effect in such jurisdiction, of
such transferable record. The Collateral Agent agrees with such Grantor
that the Collateral Agent will arrange, pursuant to procedures
reasonably satisfactory to the Collateral Agent and so long as such
procedures will not result in the Collateral Agent's loss of control,
for the Grantor to make alterations to the Electronic Chattel Paper or
transferable record permitted under UCC Section 9-105 or, as the case
may be, Section 201 of the Federal Electronic Signatures in Global and
National Commerce Act or Section 16 of the Uniform Electronic
Transactions Act for a party in control to allow without loss of
control, unless an Event of Default has occurred and is continuing.
(e) Letter-of-credit Rights. If any Grantor is at any time a
beneficiary under a letter of credit now or hereafter issued in favor
of such Grantor, such Grantor shall promptly notify the Collateral
Agent thereof and, at the written request and option of the Collateral
Agent, such Grantor shall, pursuant to an agreement in form and
substance reasonably satisfactory to the Collateral Agent, 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 with the Collateral Agent agreeing that the
proceeds of any
20
drawing under such letter of credit are to be paid to the applicable
Grantor unless an Event of Default has occurred or is continuing.
(f) Commercial Tort Claims. If any Grantor shall at any time
hold or acquire a Commercial Tort Claim in an amount reasonably
estimated to exceed $1,000,000, the Grantor shall promptly notify the
Collateral Agent thereof in a writing signed by such Grantor, including
a summary description of such claim, and grant to the Collateral Agent
in 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.
SECTION 4.05. Covenants regarding Patent, Trademark and
Copyright Collateral. (a) Each Grantor agrees that it will not do any act or
omit to do any act (and will exercise commercially reasonable efforts to prevent
its licensees from doing any act or omitting to do any act) whereby any Patent
that is material to the conduct of such Grantor's business may become
invalidated or dedicated to the public, and agrees that it shall continue to the
extent commercially reasonable to xxxx any products covered by a Patent with the
relevant patent number as necessary and sufficient to establish and preserve its
maximum rights under applicable patent laws.
(b) Each Grantor (either itself or through its licensees or
its sublicensees) will, for each Trademark material to the conduct of such
Grantor's business, (i) maintain such Trademark in full force free from any
claim of abandonment or invalidity for non-use, (ii) maintain the quality of
products and services offered under such Trademark, (iii) display such Trademark
with notice of Federal or foreign registration to the extent necessary and
sufficient to establish and preserve its rights under applicable law and (iv)
not knowingly use or knowingly permit the use of such Trademark in violation of
any third-party rights.
(c) Each Grantor (either itself or through its licensees or
its sublicensees) will, for each work covered by a Copyright material to the
conduct of such Grantor's business, continue to publish, reproduce, display,
adopt and distribute the work with appropriate copyright notice as necessary and
sufficient to establish and preserve its rights under applicable copyright laws.
(d) Each Grantor shall notify the Collateral Agent immediately
if it has actual knowledge that any Patent, Trademark or Copyright material to
the conduct of such Grantor's business may become abandoned, lost or dedicated
to the public, or of any materially adverse determination or development
(including the institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office, United States
Copyright Office or any court or similar office of any country) regarding such
Grantor's ownership of any such Patent, Trademark or Copyright, its right to
register the same or its right to keep and maintain the same.
(e) In no event shall any Grantor, either itself or through
any agent, employee, licensee or designee, file an application for any Patent or
for the registration of any Trademark or Copyright with the United States Patent
and Trademark Office, the United States Copyright Office or any office or agency
in any political subdivision of the United States or in any other country or any
political subdivision thereof, unless it
21
promptly informs the Collateral Agent thereof, and, upon the request of the
Collateral Agent, executes and delivers any and all agreements, instruments,
documents and papers as the Collateral Agent may reasonably request to evidence
the Collateral Agent's security interest in such Patent, Trademark or Copyright,
and each Grantor hereby appoints the Collateral Agent as its attorney-in-fact to
execute and file such writings for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed; such power, being coupled with an
interest, is irrevocable.
(f) Each Grantor will take all necessary steps that are
consistent with the practice in any proceeding before the United States Patent
and Trademark Office, the United States Copyright Office or any office or agency
in any political subdivision of the United States or in any other country or any
political subdivision thereof to maintain and pursue each material application
relating to the Patents, Trademarks and/or Copyrights (and to obtain the
relevant grant or registration) and to maintain each issued Patent and each
registration of the Trademarks and Copyrights that is material to the conduct of
such Grantor's business, including timely filings of applications for renewal,
affidavits of use, affidavits of incontestability and payment of maintenance
fees, and, if consistent with good business judgment, to initiate opposition,
interference and cancelation proceedings against third parties.
(g) In the event that any Grantor has reason to believe that
any Article 9 Collateral consisting of a material Patent, Trademark or Copyright
has been or is about to be infringed, misappropriated or diluted by a third
party, such Grantor shall promptly notify the Collateral Agent and shall, if
consistent with good business judgment, promptly xxx for infringement,
misappropriation or dilution and to recover any and all damages for such
infringement, misappropriation or dilution, and take such other actions as are
appropriate under the circumstances to protect such Article 9 Collateral.
(h) Upon and during the continuance of an Event of Default,
each Grantor shall use commercially reasonable efforts to obtain all requisite
consents or approvals from the licensor under each license consisting of a
Copyright License, Patent License or Trademark License to effect the assignment
of all such Grantor's right, title and interest thereunder to the Collateral
Agent or its designee.
ARTICLE V
Remedies
SECTION 5.01. Remedies upon Default. Upon the occurrence and
during the continuance of an Event of Default, each Grantor agrees to deliver
each item of Collateral to the Collateral Agent on demand, and it is agreed that
the Collateral Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any Article 9
Collateral consisting of Intellectual Property, on demand, to cause the Security
Interest to become an assignment, transfer and conveyance of any of or all such
Article 9 Collateral by the applicable Grantors to the Collateral Agent (except
to the extent an assignment, transfer or conveyance thereof would result in a
loss of said Intellectual Property), or to license or sublicense, whether
general, special or otherwise, and whether on an exclusive or nonexclusive
basis, any such Article 9 Collateral throughout the world on such terms and
conditions and in such manner as the
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Collateral Agent shall determine (other than in violation of any then-existing
licensing arrangements to the extent that waivers cannot be obtained) and (b)
with or without legal process and with or without prior notice or demand for
performance, to take possession of the Article 9 Collateral and without
liability for trespass to enter any premises where the Article 9 Collateral may
be located for the purpose of taking possession of or removing the Article 9
Collateral and, generally, to exercise any and all rights afforded to a secured
party under the Uniform Commercial Code or other applicable law. Without
limiting the generality of the foregoing, each Grantor agrees that the
Collateral Agent shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral at a public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale of securities (if it deems it advisable to do so) to
restrict the prospective bidders or purchasers to Persons who will represent and
agree that they are purchasing the Collateral for their own account for
investment and not with a view to the distribution or sale thereof, and upon
consummation of any such sale of Collateral the Collateral Agent shall have the
right to assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the property
sold absolutely, free from any claim or right on the part of any Grantor, and
each Grantor hereby waives and releases (to the extent permitted by law) all
rights of redemption, stay, valuation and appraisal that such Grantor now has or
may at any time in the future have under any rule of law or statute now existing
or hereafter enacted.
The Collateral Agent shall give the applicable Grantors 10
days' written notice (which each Grantor agrees is reasonable notice within the
meaning of Section 9-611 of the New York UCC or its equivalent in other
jurisdictions) of the Collateral Agent's intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Collateral Agent may fix and state in the notice (if any) of such sale.
At any such sale, the Collateral, or portion thereof, to be sold may be sold in
one lot as an entirety or in separate parcels, as the Collateral Agent may (in
its sole and absolute discretion) determine. The Collateral Agent shall not be
obligated to make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have been
given. The Collateral Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Collateral Agent shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may be sold again upon like
notice. At any public (or, to the extent permitted by law, private) sale made
pursuant to this Section 5.01, any Secured Party may bid for or purchase for
cash, free (to the extent permitted by law) from any right of redemption, stay,
valuation or
23
appraisal on the part of any Grantor (all said rights being also hereby waived
and released to the extent permitted by law), the Collateral or any part thereof
offered for sale and such Secured Party may, upon compliance with the terms of
sale, hold, retain and dispose of such property without further accountability
to any Grantor therefor. For purposes hereof, a written agreement to purchase
the Collateral or any portion thereof shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and no Grantor shall be entitled to the return of the Collateral or any portion
thereof subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default shall have
been remedied and the Obligations paid in full. As an alternative to exercising
the power of sale herein conferred upon it, the Collateral Agent may proceed by
a suit or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver. Any sale pursuant to the provisions of this Section
5.01 shall be deemed to conform to the commercially reasonable standards as
provided in Section 9-610(b) of the New York UCC or its equivalent in other
jurisdictions.
SECTION 5.02. Application of Proceeds. The Collateral Agent
shall apply the proceeds of any collection or sale of Collateral, as well as any
Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by
the Administrative Agent and the Collateral Agent in connection with
such collection or sale or otherwise in connection with this Agreement,
any other Loan Document or any of the Obligations, including all court
costs and the fees and expenses of its agents and legal counsel, the
repayment of all advances made by the Administrative Agent or the
Collateral Agent hereunder or under any other Loan Document on behalf
of any Grantor and any other costs or expenses incurred in connection
with the exercise of any right or remedy hereunder or under any other
Loan Document;
SECOND, to the payment in full of the Obligations (the amounts
so applied to be distributed among the Secured Parties pro rata in
accordance with the amounts of the Obligations owed to them on the date
of any such distribution); and
THIRD, to the Grantors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the purchase money by the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid over
to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
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SECTION 5.03. Grant of License to Use Intellectual Property.
Subject to any Licenses or other agreements with third parties that have been or
may be entered into by any Grantor in the ordinary course of business, for the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Agreement at such time as the Collateral Agent shall be lawfully entitled
to exercise such rights and remedies, each Grantor hereby grants to the
Collateral Agent an irrevocable, nonexclusive license for the term of this
Agreement (exercisable without payment of royalty or other compensation to the
Grantors) to use, license or sublicense any of the Article 9 Collateral
consisting of Intellectual Property now owned or hereafter acquired by such
Grantor, wherever the same may be located, and including in such license
reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer software and programs used for the
compilation or printout thereof. The use of such license by the Collateral Agent
may be exercised, at the option of the Collateral Agent, only upon the
occurrence and during the continuation of an Event of Default; provided that any
license, sublicense or other transaction entered into by the Collateral Agent in
accordance herewith shall be binding upon the Grantors notwithstanding any
subsequent cure of an Event of Default.
SECTION 5.04. Securities Act, etc. In view of the position of
the Grantors in relation to the Pledged Collateral, or because of other current
or future circumstances, a question may arise under the Securities Act of 1933,
as now or hereafter in effect, or any similar statute hereafter enacted
analogous in purpose or effect (such Act and any such similar statute as from
time to time in effect being called the "Federal Securities Laws") with respect
to any disposition of the Pledged Collateral permitted hereunder. Each Grantor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Collateral, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Collateral could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Collateral under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. Each Grantor recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the Pledged
Collateral, limit the purchasers to those who will agree, among other things, to
acquire such Pledged Collateral for their own account, for investment, and not
with a view to the distribution or resale thereof. Each Grantor acknowledges and
agrees that in light of such restrictions and limitations, the Collateral Agent,
when exercising remedies on behalf of the Secured Parties after an Event of
Default has occurred and is continuing, (a) may proceed to make such a sale
whether or not a registration statement for the purpose of registering such
Pledged Collateral or part thereof shall have been filed under the Federal
Securities Laws and (b) may approach and negotiate with a single potential
purchaser to effect such sale. Each Grantor acknowledges and agrees that any
such sale might result in prices and other terms less favorable to the seller
than if such sale were a public sale without such restrictions. In the event of
any such sale, the Collateral Agent shall incur no responsibility or liability
for selling all or any part of the Pledged Collateral at a price that the
Collateral Agent, in its sole and absolute discretion, may in good xxxxx xxxx
reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might have been realized if the sale were deferred
until after registration as aforesaid or if more than a single purchaser were
approached. The
25
provisions of this Section 5.04 will apply notwithstanding the existence of a
public or private market upon which the quotations or sales prices may exceed
substantially the price at which the Collateral Agent sells.
SECTION 5.05. Registration, etc. Each Grantor agrees that,
upon the occurrence and during the continuance of an Event of Default, if for
any reason the Collateral Agent desires to sell any of the Pledged Collateral at
a public sale, it will, at any time and from time to time, upon the written
request of the Collateral Agent, use its commercially reasonable efforts to take
or to cause the issuer of such Pledged Collateral to take such action and
prepare, distribute and/or file such documents, as are required or advisable in
the reasonable opinion of counsel for the Collateral Agent to permit the public
sale of such Pledged Collateral. Each Grantor further agrees to indemnify,
defend and hold harmless the Administrative Agent, the Collateral Agent, each
other Secured Party, any underwriter and their respective officers, directors,
affiliates and controlling persons from and against all loss, liability,
expenses, costs of counsel (including, without limitation, reasonable fees and
expenses to the Collateral Agent of legal counsel), and claims (including the
costs of investigation) that they may incur insofar as such loss, liability,
expense or claim arises out of or is based upon any alleged untrue statement of
a material fact contained in any prospectus (or any amendment or supplement
thereto) or in any notification or offering circular, or arises out of or is
based upon any alleged omission to state a material fact required to be stated
therein or necessary to make the statements in any thereof not misleading,
except insofar as the same may have been caused by any untrue statement or
omission based upon information furnished in writing to such Grantor or the
issuer of such Pledged Collateral by the Collateral Agent or any other Secured
Party expressly for use therein. Each Grantor further agrees, upon such written
request referred to above, to use its commercially reasonable efforts to
qualify, file or register, or cause the issuer of such Pledged Collateral to
qualify, file or register, any of the Pledged Collateral under the Blue Sky or
other securities laws of such states as may be requested by the Collateral Agent
and keep effective, or cause to be kept effective, all such qualifications,
filings or registrations. Each Grantor will bear all costs and expenses of
carrying out its obligations under this Section 5.05. Each Grantor acknowledges
that there is no adequate remedy at law for failure by it to comply with the
provisions of this Section 5.05 and that such failure would not be adequately
compensable in damages, and therefore agrees that its agreements contained in
this Section 5.05 may be specifically enforced.
ARTICLE VI
Indemnity, Subrogation and Subordination
SECTION 6.01. Indemnity and Subrogation. In addition to all
such rights of indemnity and subrogation as the Subsidiary Loan Parties may have
under applicable law (but subject to Section 6.03), the Borrower and Holdings,
jointly and severally, agree that (a) in the event a payment shall be made by
any Subsidiary Loan Party under this Agreement in respect of any Obligation, the
Borrower and Holdings, jointly and severally, shall indemnify such Subsidiary
Loan Party for the full amount of such payment and such Subsidiary Loan Party
shall be subrogated to the rights of the Person to whom such payment shall have
been made to the extent of such payment and (b) in the event any assets of any
Subsidiary Loan Party shall be sold pursuant to this Agreement or
26
any other Security Document to satisfy in whole or in part an Obligation, the
Borrower and Holdings, jointly and severally, shall indemnify such Subsidiary
Loan Party in an amount equal to the greater of the book value or the fair
market value of the assets so sold.
SECTION 6.02. Contribution and Subrogation. Each Subsidiary
Loan Party (a "Contributing Guarantor") agrees (subject to Section 6.03) that,
in the event a payment shall be made by any other Subsidiary Loan Party
hereunder in respect of any Obligation or assets of any other Subsidiary Loan
Party shall be sold pursuant to any Security Document to satisfy any Obligation
owed to any Secured Party and such other Subsidiary Loan Party (the "Claiming
Guarantor") shall not have been fully indemnified by the Borrower and Holdings
as provided in Section 6.01, the Contributing Guarantor shall indemnify the
Claiming Guarantor in an amount equal to the amount of such payment or the
greater of the book value or the fair market value of such assets, as the case
may be, in each case multiplied by a fraction of which the numerator shall be
the net worth of the Contributing Guarantor on the date hereof and the
denominator shall be the aggregate net worth of all the Subsidiary Loan Parties
on the date hereof (or, in the case of any Subsidiary Loan Party becoming a
party hereto pursuant to Section 7.16, the date of the supplement hereto
executed and delivered by such Subsidiary Loan Party). Any Contributing
Guarantor making any payment to a Claiming Guarantor pursuant to this Section
6.02 shall be subrogated to the rights of such Claiming Guarantor under Section
6.01 to the extent of such payment.
SECTION 6.03. Subordination. (a) Notwithstanding any provision
of this Agreement to the contrary, all rights of the Guarantors under Sections
6.01 and 6.02 and all other rights of indemnity, contribution or subrogation
under applicable law or otherwise shall be fully subordinated to the
indefeasible payment in full in cash of the Obligations. No failure on the part
of the Borrower or any Guarantor to make the payments required by Sections 6.01
and 6.02 (or any other payments required under applicable law or otherwise)
shall in any respect limit the obligations and liabilities of any Guarantor with
respect to its obligations hereunder, and each Guarantor shall remain liable for
the full amount of the obligations of such Guarantor hereunder.
(b) Each Guarantor hereby agrees that all Indebtedness and
other monetary obligations owed by it to any other Guarantor or any Subsidiary
shall be fully subordinated to the indefeasible payment in full in cash of the
Obligations.
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices. All communications and notices
hereunder shall (except as otherwise expressly permitted herein) be in writing
and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to any Subsidiary Party shall be given to
it in care of the Borrower as provided in Section 9.01 of the Credit Agreement.
SECTION 7.02. Security Interest Absolute. All rights of the
Collateral Agent hereunder, the Security Interest, the security interest in the
Pledged Collateral and all obligations of each Grantor and Guarantor hereunder
shall be absolute and
27
unconditional irrespective of (a) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document, any agreement with respect to any of
the Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to any departure from the Credit Agreement, any other Loan
Document or any other agreement or instrument, (c) any exchange, release or
non-perfection of any Lien on other collateral, or any release or amendment or
waiver of or consent under or departure from any guarantee, securing or
guaranteeing all or any of the Obligations, or (d) any other circumstance that
might otherwise constitute a defense available to, or a discharge of, any
Grantor or Guarantor in respect of the Obligations or this Agreement.
SECTION 7.03. Survival of Agreement. All covenants,
agreements, representations and warranties made by the Loan Parties in the Loan
Documents and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Lenders and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and the
issuance of any Letters of Credit, regardless of any investigation made by any
Lender or on its behalf and notwithstanding that the Administrative Agent, the
Collateral Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended under the Credit Agreement, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under any Loan Document is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not expired or terminated.
SECTION 7.04. Binding Effect; Several Agreement. This
Agreement shall become effective as to any Loan Party when a counterpart hereof
executed on behalf of such Loan Party shall have been delivered to the
Administrative Agent and a counterpart hereof shall have been executed on behalf
of the Collateral Agent, and thereafter shall be binding upon such Loan Party
and the Collateral Agent and their respective permitted successors and assigns,
and shall inure to the benefit of such Loan Party, the Collateral Agent and the
other Secured Parties and their respective permitted successors and assigns,
except that no Loan Party shall have the right to assign or transfer its rights
or obligations hereunder or any interest herein or in the Collateral (and any
such assignment or transfer shall be void) except as expressly contemplated by
this Agreement or the Credit Agreement. This Agreement shall be construed as a
separate agreement with respect to each Loan Party and may be amended, modified,
supplemented, waived or released with respect to any Loan Party without the
approval of any other Loan Party and without affecting the obligations of any
other Loan Party hereunder.
SECTION 7.05. Successors and Assigns. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of any Grantor or the
Collateral Agent that are contained in this Agreement shall bind and inure to
the benefit of their respective permitted successors and assigns.
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SECTION 7.06. Collateral Agent's Fees and Expenses;
Indemnification. (a) The parties hereto agree that the Collateral Agent shall be
entitled to reimbursement of its reasonable expenses incurred hereunder as
provided in Section 9.03 of the Credit Agreement.
(b) Without limitation of its indemnification obligations
under the other Loan Documents, each Grantor jointly and severally agrees to
indemnify the Collateral Agent and the other Indemnitees (as defined in Section
9.03 of the Credit Agreement) against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of, the execution, delivery or performance of
this Agreement or any claim, litigation, investigation or proceeding relating
hereto, or to the Collateral, whether or not any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) Any such amounts payable as provided hereunder shall be
additional Obligations secured hereby and by the other Security Documents. The
provisions of this Section 7.06 shall remain operative and in full force and
effect regardless of the termination of this Agreement or any other Loan
Document, the consummation of the transactions contemplated hereby, the
repayment of any of the Obligations, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Collateral Agent or any other Secured
Party. All amounts due under this Section 7.06 shall be payable on written
demand therefor.
SECTION 7.07. Collateral Agent Appointed Attorney-in-Fact.
Each Grantor hereby appoints the Collateral Agent the attorney-in-fact of such
Grantor for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
is irrevocable and coupled with an interest. Without limiting the generality of
the foregoing, the Collateral Agent shall have the right, upon the occurrence
and during the continuance of an Event of Default, with full power of
substitution either in the Collateral Agent's name or in the name of such
Grantor, (a) to receive, endorse, assign and/or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment relating
to the Collateral or any part thereof; (b) to demand, collect, receive payment
of, give receipt for and give discharges and releases of all or any of the
Collateral; (c) to ask for, demand, xxx for, collect, receive and give
acquittance for any and all moneys due or to become due under and by virtue of
any Collateral; (d) to sign the name of any Grantor on any invoice or xxxx of
lading relating to any of the Collateral; (e) to send verifications of Accounts
to any Account Debtor; (f) to commence and prosecute any and all suits, actions
or proceedings at law or in equity in any court of competent jurisdiction to
collect or otherwise realize on all or any of the Collateral or to enforce any
rights in respect of any Collateral; (g) to settle, compromise, compound, adjust
or defend any actions, suits or proceedings relating to all or any of the
Collateral; (h) to notify, or to require any Grantor to notify, Account
29
Debtors to make payment directly to the Collateral Agent; and (i) to use, sell,
assign, transfer, pledge, make any agreement with respect to or otherwise deal
with all or any of the Collateral, and to do all other acts and things necessary
to carry out the purposes of this Agreement, as fully and completely as though
the Collateral Agent were the absolute owner of the Collateral for all purposes;
provided, that nothing herein contained shall be construed as requiring or
obligating the Collateral Agent to make any commitment or to make any inquiry as
to the nature or sufficiency of any payment received by the Collateral Agent, or
to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby. The Collateral Agent and the other
Secured Parties shall be accountable only for amounts actually received as a
result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Grantor for any act or failure to act hereunder, except for their own gross
negligence or wilful misconduct.
SECTION 7.08. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 7.09. Waivers; Amendment. (a) No failure or delay by
the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender
in exercising any right, power or remedy hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy, or any abandonment or
discontinuance of steps to enforce such a right, power or remedy, preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The rights, powers and remedies of the Administrative Agent, the
Collateral Agent, the Issuing Bank and the Lenders hereunder and under the other
Loan Documents are cumulative and are not exclusive of any rights, powers or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section 7.09, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or the issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether
the Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank
may have had notice or knowledge of such Default at the time. No notice or
demand on any Loan Party in any case shall entitle any Loan Party to any other
or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Collateral Agent and the Loan Party or Loan Parties
with respect to which such waiver, amendment or modification is to apply,
subject to any consent required in accordance with Section 9.02 of the Credit
Agreement.
30
SECTION 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 7.10.
SECTION 7.11. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
in such jurisdiction of the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction. The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7.12. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which, when taken together,
shall constitute a single contract, and shall become effective as provided in
Section 7.04. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Agreement.
SECTION 7.13. Headings. Article and Section headings used
herein are for the purpose of reference only, are not part of this Agreement and
are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 7.14 Jurisdiction; Consent to Service of Process. (a)
Each of the Loan Parties hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the
31
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against any Grantor or Guarantor, or its properties, in
the courts of any jurisdiction.
(b) Each of the Loan Parties hereby irrevocably and
unconditionally waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (a) of this Section 7.14. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 7.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 7.15. Additional Subsidiaries. Pursuant to Section
5.12 of the Credit Agreement, each Subsidiary of a Loan Party that was not in
existence or not a Subsidiary on the date of the Credit Agreement and is not a
Foreign Subsidiary is required to enter into this Agreement as a Subsidiary
Party upon becoming such a Subsidiary. Upon execution and delivery by the
Collateral Agent and a Subsidiary of an instrument in the form of Exhibit I
hereto, such Subsidiary shall become a Subsidiary Party hereunder with the same
force and effect as if originally named as a Subsidiary Party herein. The
execution and delivery of any such instrument shall not require the consent of
any other Loan Party hereunder. The rights and obligations of each Loan Party
hereunder shall remain in full force and effect notwithstanding the addition of
any new Loan Party as a party to this Agreement.
SECTION 7.16. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of any Subsidiary Party against any of and all the obligations of such
Subsidiary Party now or hereafter existing under this Agreement owed to such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured. The rights
of each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender may have.
32
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
DEX MEDIA WEST, INC.,
by /s/ XXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO and President
DEX MEDIA WEST LLC,
by /s/ XXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO and President
DEX MEDIA WEST FINANCE CO.,
by /s/ XXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO and President
JPMORGAN CHASE BANK, as
Collateral Agent,
by /s/ XXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Schedule I to the
Guarantee and
Collateral Agreement
Subsidiary Loan Parties
Schedule II
to Guarantee and
Collateral Agreement
EQUITY INTERESTS
Number and
Number of Registered Class of Percentage of
Issuer Certificate Owner Equity Interest of Equity Interests
------ ----------- ---------- --------------- -------------------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ --------- ------------ -------------
Schedule III
to Guarantee and
Collateral Agreement
COPYRIGHTS OWNED BY [NAME OF GRANTOR]
[Make a separate page of Schedule III for each Grantor and state if no
copyrights are owned. List in numerical order by Registration No.]
U.S. Copyright Registrations
Title Reg. No. Author
----- -------- ------
Pending U.S. Copyright Applications for Registration
Title Author Class Date Filed
----- ------ ----- ----------
Non-U.S. Copyright Registrations
[List in alphabetical order by country/numerical order by Registration No.
within each country]
Country Title Reg. No. Author
------- ----- -------- ------
Non-U.S. Pending Copyright Applications for Registration
[List in alphabetical order by country.]
Country Title Author Class Date Filed
------- ----- ------ ----- ----------
LICENSES
[Make a separate page of Schedule III for each Grantor, and state if any Grantor
is not a party to a license/sublicense.]
PART I
LICENSES/SUBLICENSEES OF [NAME OF GRANTOR]
AS LICENSOR ON DATE HEREOF
A. Copyrights
[List U.S. copyrights in numerical order by Registration No. List non-U.S.
copyrights by country in alphabetical order with
Registration Nos. within each country in numerical order.]
U.S. Copyrights
Title of
Licensee Name Date of License/ U.S.
and Address Sublicense Copyright Author Reg. No.
----------- ---------- --------- ------ --------
Non-U.S. Copyrights
Date of Title of
Licensee Name License/ Non-U.S.
Country and Address Sublicensee Copyrights Author Reg. No.
------- ----------- ----------- ---------- ------ --------
B. Patents
[List U.S. patent nos. and U.S. patent application nos. in numerical order.
List non-U.S. patent nos. and non-U.S. application in alphabetical order
by country, with numbers within each country in numerical order.]
U.S. Patents
Licensee Name Date of License/
and Address Sublicense Issue Date Patent No.
----------- ---------- ---------- ----------
U.S. Patent Applications
Licensee Name Date of License/
and Address Sublicense Date Filed Application No.
----------- ---------- ---------- ---------------
Non-U.S. Patents
Licensee Name Date of License/ Issue Non-U.S.
Country and Address Sublicense Date Patent No.
------- ----------- ---------- ---- ----------
Non-U.S. Patent Applications
Licensee Name Date of License/ Date Application
Country and Address Sublicense Filed No.
------- ----------- ---------- ----- ---
C. Trademarks
[List U.S. trademark nos. and U.S. trademark application nos. in numerical
order. List non-U.S. trademark nos. and non-U.S. application nos. with
trademark nos. within each country in numerical order.]
U.S. Trademarks
Licensee Name Date of License/
and Address Sublicense U.S. Xxxx Reg. Date Reg. No.
----------- ---------- --------- --------- --------
U.S. Trademark Applications
Licensee Name Date of License/ Application
and Address Sublicense U.S. Xxxx Date Filed No.
----------- ---------- --------- ---------- ---
Non-U.S. Trademarks
Licensee Name Date of License/ Non-U.S.
Country and Address Sublicense Xxxx Reg. Date Reg. No.
------- ----------- ---------- ---- --------- --------
Non-U.S. Trademark Applications
Licensee Name Date of License/ Non-U.S. Date Application
Country and Address Sublicense Xxxx Filed No.
------- ----------- ---------- ---- ----- ---
D. Others
Licensee Name Date of License/ Subject
and Address Sublicense Matter
----------- ---------- ------
PART 2
LICENSEES/SUBLICENSES OF [NAME OF GRANTOR]
AS LICENSEE ON DATE HEREOF
A. Copyrights
[List U.S. copyrights in numerical order by Registration No. List non-U.S.
copyrights by country in alphabetical order, with Registration Nos.
within each country in numerical order.]
U.S. Copyrights
Licensor Name and Date of License/ Title of
Address Sublicense U.S. Copyright Author Reg. No.
------- ---------- -------------- ------ --------
Non-U.S. Copyrights
Date of Title of
Licensor Name License/ Non-U.S.
Country and Address Sublicensee Copyrights Author Reg. No.
------- ----------- ----------- ---------- ------ --------
B. Patents
[List U.S. patent nos. and U.S. patent application nos. in numerical order.
List non-U.S. patent nos. and non-U.S. application nos. in alphabetical
order by country with patent nos. within each country in numerical order.]
U.S. Patents
Date of
Licensor Name License/
and Address Sublicense Issue Date Patent No.
----------- ---------- ---------- ----------
U.S. Patent Applications
Licensor Name Date of License/
and Address Sublicense Date Filed Application No.
----------- ---------- ---------- ---------------
Non-U.S. Patents
Licensor Name Date of License/ Issue Non-U.S.
Country and Address Sublicense Date Patent No.
------- ----------- ---------- ---- ----------
Non-U.S. Patent Applications
Licensor Name Date of License/ Date Application
Country and Address Sublicense Filed No.
------- ----------- ---------- ----- ---
C. Trademarks
[List U.S. trademark nos. and U.S. trademark application nos. in
numerical order. List non-U.S. trademark nos. and non-U.S.
application nos. with trademark nos. within each country in numerical order.]
U.S. Trademarks
Licensor Name Date of License/
and Address Sublicense U.S. Xxxx Reg. Date Reg. No.
----------- ---------- --------- --------- --------
U.S. Trademark Applications
Licensor Name Date of License/ Date Application
and Address Sublicense U.S. Xxxx Filed No.
----------- ---------- --------- ----- ---
Non-U.S. Trademarks
Licensor Name Date of License/ Non-U.S.
Country and Address Sublicense Xxxx Reg. Date Reg. No.
------- ----------- ---------- ---- --------- --------
Non-U.S. Trademark Applications
Licensor Name Date of License/ Non-U.S. Date Application
Country and Address Sublicense Xxxx Filed No.
------- ----------- ---------- ---- ----- ---
D. Others
Date of License/
Licensor Name and Address Sublicense Subject Matter
------------------------- ---------- --------------
PATENTS OWNED BY [NAME OF GRANTOR]
[Make a separate page of Schedule III for each Grantor and state if no patents
are owned. List in numerical order by Patent No./Patent Application No.]
U.S. Patent Registrations
Patent Numbers Issue Date
-------------- ----------
U.S. Patent Applications
Patent Application No. Filing Date
---------------------- -----------
Non-U.S. Patent Registrations
[List in alphabetical order by country/numerical order by Patent No.
within each country]
Country Issue Date Patent No.
------- ---------- ----------
Non-U.S. Patent Applications
[List in alphabetical order by country/numerical order by Application No.
within each country]
Country Filing Date Patent Application No.
------- ----------- ----------------------
TRADEMARK/TRADE NAMES OWNED BY [NAME OF GRANTOR]
[Make a separate page of Schedule III for each Grantor and state if no
trademarks/trade names are owned. List in numerical order by trademark
registration/application no.]
U.S. Trademark Registrations
Xxxx Reg. Date Reg. No.
---- --------- --------
U.S. Trademark Applications
Xxxx Filing Date Application No.
---- ----------- ---------------
State Trademark Registrations
[List in alphabetical order by state/numerical order by registration no.
within each state]
State Xxxx Reg. Date Reg. No.
----- ---- --------- --------
State Trademark Applications
[List in alphabetical order by state/numerical order by application no.
within each state]
State Xxxx Filing Date Application No.
----- ---- ----------- ---------------
Non-U.S. Trademark Registrations
[List in alphabetical order by country/numerical order by registration no.
within each country]
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
Non-U.S. Trademark Applications
[List in alphabetical order by country/numerical order by application no.
within each country]
Country Xxxx Date Filed Application No.
------- ---- ---------- ---------------
Trade Names
Country(s) Where Used Trade Names
--------------------- -----------
Schedule IV
to Guarantee and
Collateral Agreement
Insurance Requirements
(a) Holdings and the Borrower will, and will cause each
Subsidiary Party to, maintain (or cause to be maintained on its behalf) with
financially sound and reputable insurance companies:
(i) fire, boiler and machinery, and extended coverage
insurance, on a replacement cost basis, with respect to all personal
property and improvements to real property (in each case constituting
Collateral), in such amounts as are customarily maintained by companies
in the same or similar business operating in the same or similar
locations;
(ii) commercial general liability insurance against claims for
bodily injury, death or property damage occurring upon, about or in
connection with the use of any properties owned, occupied or controlled
by it, providing coverage on an occurrence basis with a combined single
limit of not less than $1,000,000 and including the broad form CGL
endorsement;
(iii) business interruption insurance, insuring against loss
of gross earnings for a period of not less than 12 months arising from
any risks or occurrences required to be covered by insurance pursuant
to clause (i) above; and
(iv) such other insurance as may be required by law.
Deductibles or self-insured retention shall not exceed $100,000 for fire, boiler
and machinery and extended coverage policies, $250,000 for commercial general
liability policies or 45 days for business interruption policies.
(b) Fire, boiler and machinery and extended coverage policies
maintained with respect to any Collateral shall be endorsed or otherwise amended
to include (i) a lenders' loss payable clause in favor of the Collateral Agent
and providing for losses thereunder to be payable to the Collateral Agent or its
designee, (ii) a provision to the effect that neither any Loan Party, the
Collateral Agent nor any other party shall be a coinsurer and (iii) such other
provisions as the Collateral Agent may reasonably require from time to time to
protect the interests of the Lenders. Commercial general liability policies
shall be endorsed to name the Collateral Agent as an additional insured.
Business interruption policies shall name the Collateral Agent as loss payee.
Each such policy referred to in this paragraph also shall provide that it shall
not be canceled, modified or not renewed (i) by reason of nonpayment of premium
except upon not less than 10 days' prior written notice thereof by the insurer
to the Collateral Agent (giving the Collateral Agent the right to cure defaults
in the payment of premiums) or (ii) for any other reason except upon not less
than 30 days' prior written notice thereof by the insurer to the Collateral
Agent. The Borrower shall deliver to the Collateral Agent, prior to the
cancellation, modification or nonrenewal of any such policy of insurance, a copy
of a
renewal or replacement policy (or other evidence of renewal of a policy
previously delivered to the Collateral Agent) together with evidence reasonably
satisfactory to the Collateral Agent of payment of the premium therefor.
Exhibit I
to Guarantee and
Collateral Agreement
SUPPLEMENT NO. __ dated as of [ ], 200_,
to the Guarantee and Collateral Agreement (this
"Supplement") dated as of September 9, 2003 (the
"Guarantee and Collateral Agreement"), among DEX
MEDIA WEST, INC., a Delaware corporation
("Holdings"), DEX MEDIA WEST LLC, a Delaware limited
liability company (the "Borrower"), each other
Subsidiary of Holdings identified herein (each such
Subsidiary individually a "Subsidiary Party" and
collectively, the "Subsidiary Loan Parties") and
JPMORGAN CHASE BANK, a New York banking corporation
("JPMCB"), as Collateral Agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as
defined below).
A. Reference is made to the Credit Agreement dated as of
September 9, 2003 (as amended, supplemented, waived or otherwise modified from
time to time, the "Credit Agreement"), among Dex Media, Inc., Holdings, the
Borrower, the Lenders from time to time party thereto (the "Lenders") and JPMCB,
as Administrative Agent and Collateral Agent.
B. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement
and the Guarantee and Collateral Agreement referred to therein.
C. The Grantors have entered into the Guarantee and Collateral
Agreement in order to induce the Lenders to make Loans and the Issuing Bank to
issue Letters of Credit. Section 7.15 of Collateral Agreement provides that
additional Subsidiaries may become Subsidiary Loan Parties under the Guarantee
and Collateral Agreement by execution and delivery of an instrument in the form
of this Supplement. The undersigned Subsidiary (the "New Subsidiary") is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Subsidiary Party under the Guarantee and Collateral
Agreement in order to induce the Lenders to make additional Loans and the
Issuing Bank to issue additional Letters of Credit and as consideration for
Loans previously made and Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Subsidiary agree
as follows:
SECTION 1. In accordance with Section 7.15 of the Guarantee
and Collateral Agreement, the New Subsidiary by its signature below becomes a
Subsidiary Party, a Grantor and a Guarantor under the Guarantee and Collateral
Agreement with the same force and effect as if originally named therein as a
Subsidiary Party, a Grantor and a Guarantor, and the New Subsidiary hereby (a)
agrees to all the terms and provisions of the Guarantee and Collateral Agreement
applicable to it as a Subsidiary Party, Grantor and Guarantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Grantor and Guarantor thereunder are true and correct on and as of the date
hereof. In furtherance of the foregoing, the New Subsidiary, as security for
the payment and performance in full of the Obligations (as defined in the
Guarantee and Collateral Agreement), does hereby create and grant to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, their successors and assigns, a security interest in and lien
on all of the New Subsidiary's right, title and interest in and to the
Collateral (as defined in the Guarantee and Collateral Agreement) of the New
Subsidiary. Each reference to a "Subsidiary Party", a "Grantor" or a "Guarantor"
in the Guarantee and Collateral Agreement shall be deemed to include the New
Subsidiary. The Guarantee and Collateral Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Subsidiary represents and warrants to the
Collateral Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which, when taken together, shall constitute
a single contract. This Supplement shall become effective when (a) the
Collateral Agent shall have received a counterpart of this Supplement that bears
the signature of the New Subsidiary and (b) the Collateral Agent has executed a
counterpart hereof. Delivery of an executed signature page to this Supplement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Supplement.
SECTION 4. The New Subsidiary hereby represents and warrants
that (a) set forth on Schedule I attached hereto is a true and correct schedule
of the location of any and all Article 9 Collateral of the New Subsidiary, (b)
set forth on Schedule II attached hereto is a true and correct schedule of all
the Pledged Securities of the New Subsidiary and (c) set forth under its
signature hereto, is the true and correct legal name of the New Subsidiary, its
jurisdiction of formation and the location of its chief executive office.
SECTION 5. Except as expressly supplemented hereby, the
Guarantee and Collateral Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 7. Any provision of this Supplement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability in
such jurisdiction of the remaining provisions hereof and of the Guarantee and
Collateral Agreement; and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any other
jurisdiction. The
parties hereto shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be
in writing and given as provided in Section 7.01 of the Guarantee and Collateral
Agreement.
SECTION 9. The New Subsidiary agrees to reimburse the
Collateral Agent for its reasonable out-of-pocket expenses in connection with
this Supplement, including the reasonable fees, disbursements and other charges
of counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Subsidiary and the Collateral
Agent have duly executed this Supplement to the Guarantee and Collateral
Agreement as of the day and year first above written.
[Name Of New Subsidiary],
by ____________________________________
Name:
Title:
Exact Legal Name:
Type of Entity:
Jurisdiction of Formation:
Organizational Number, if any, from
Jurisdiction of Formation:
Location of Chief Executive Office:
JPMORGAN CHASE BANK, as
Collateral Agent,
by ____________________________________
Name:
Title:
Schedule I
to Supplement No. __ to the
Guarantee and Collateral Agreement
LOCATION OF ARTICLE 9 COLLATERAL
Description Location
----------- --------
Schedule II
to Supplement No. __ to the
Guarantee and Collateral Agreement
Pledged Securities of the New Subsidiary
EQUITY INTERESTS
Number and
Number of Registered Class of Percentage of
Issuer Certificate Owner Equity Interests Equity Interests
------ ----------- ----- ---------------- ----------------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ ------ ------------ -------------
OTHER PROPERTY
EXHIBIT II to
Guarantee and
Collateral Agreement
[FORM OF]
PERFECTION CERTIFICATE
Reference is made to the Credit Agreement dated as of
September 9, 2003 (as amended, supplemented, waived or otherwise modified from
time to time, the "Credit Agreement"), among DEX MEDIA, INC., a Delaware
corporation ("Parent"), DEX MEDIA WEST, INC., a Delaware corporation
("Holdings"), DEX MEDIA WEST LLC, a Delaware limited liability company that is a
wholly owned subsidiary of Holdings (the "Borrower"), the lenders from time to
time party thereto (the "Lenders") and JPMorgan Chase Bank, as administrative
agent (the "Administrative Agent"). Capitalized terms used but not defined
herein have the meanings assigned in the Credit Agreement or the Guarantee and
Collateral Agreement referred to therein, as applicable.
The undersigned, the Chief Executive Officer and the Chief
Financial Officer, respectively, of the Borrower, hereby certify to the
Collateral Agent and each other Secured Party as follows:
1. Names. (a) The exact legal name of each Grantor(1), as such name
appears in its respective certificate of formation, is as follows:
(b) Set forth below is each other legal name each Grantor has had in the past
five years, together with the date of the relevant change:
(c) Except as set forth in Schedule 1 hereto, no Grantor has changed its
identity or corporate structure in any way within the past five years. Changes
in identity or corporate structure would include mergers, consolidations and
acquisitions, as well as any change in the form, nature or jurisdiction of
corporate organization. If any such change has occurred, Schedule 1 includes the
information required by Sections 1 and 2 of this certificate as to each acquiree
or constituent party to a merger or consolidation.
(d) The following is a list of all other names (including trade names or similar
appellations) used by each Grantor or any of its divisions or other business
units in connection with the conduct of its business or the ownership of its
properties at any time during the past five years:
----------------------------
(1) The term "Grantors" shall include Holdings, the Borrower and
each of their Subsidiaries that are organized under the laws of the United
States or any State thereof.
(e) Set forth below is the organizational identification number, if any, issued
by the jurisdiction of formation of each Grantor that is a registered
organization:
Grantor Organizational
Identification Number
(f) Set forth below is the Federal Taxpayer Identification Number of each
Grantor:
Grantor Federal Taxpayer
Identification Number
2. Current Locations. (a) The chief executive office of each Grantor is located
at the address set forth opposite its name below:
Grantor Mailing Address County State
(b) Set forth below opposite the name of each Grantor are all locations where
such Grantor maintains any books or records relating to any Accounts Receivable
or General Intangibles (with each location at which Chattel Paper, if any, is
kept being indicated by an "*"):
Grantor Mailing Address County State
(c) The jurisdiction of formation of each Grantor that is a registered
organization is set forth opposite its name below:
Grantor Jurisdiction
(d) Set forth below opposite the name of each Grantor are all the locations
where such Grantor maintains any Inventory or Equipment or other Collateral not
identified above:
Grantor Mailing Address County State
(e) Set forth below opposite the name of each Grantor are all the places of
business of such Grantor not identified in paragraph (a), (b), (c) or (d) above:
Grantor Mailing Address County State
(f) Set forth below is a list of all real property held by each Grantor, whether
owned or leased, the name of the Grantor that owns or leases said property and,
with respect to any owned property, the fair market value apportioned to each
site:
Address Owned/Leased Entity Value
Copies of any deeds, title insurance policies, surveys and other records
relating to the real property listed in this Section 2(f) have been delivered to
the Collateral Agent.
(g) Set forth below opposite the name of each Grantor are the names and
addresses of all Persons other than such Grantor that have possession of any of
the Collateral of such Grantor:
Grantor Mailing Address County State
3. Unusual Transactions. All Accounts have been originated by the Grantors and
all Inventory has been acquired by the Grantors in the ordinary course of
business.
4. File Search Reports. File search reports have been obtained from each Uniform
Commercial Code filing office identified with respect to such Grantor in Section
2 hereof, and such search reports reflect no liens against any of the Collateral
other than those permitted under the Credit Agreement.
5. UCC Filings. UCC financing statements in substantially the form of Schedule 5
hereto have been prepared for filing in the proper Uniform Commercial Code
filing office in the jurisdiction in which each Grantor is located and, to the
extent any of the Collateral is comprised of fixtures, in the proper local
jurisdiction, in each case as set forth with respect to such Grantor in Section
2 hereof.
6. Schedule of Filings. Attached hereto as Schedule 6 is a schedule setting
forth, with respect to the filings described in Section 5 above, each filing and
the filing office in which such filing is to be made.
7. Stock Ownership and other Equity Interests. Attached hereto as Schedule 7 is
a true and correct list of all the issued and outstanding stock, partnership
interests, limited liability company membership interests or other equity
interests owned by Holdings and its Subsidiaries and the record and beneficial
owners of such stock, partnership interests, membership interests or other
equity interests. Also set forth on Schedule 7 is each equity investment of
Holdings or any of its Subsidiaries that represents 50% or less of the equity of
the entity in which such investment was made.
8. Debt Instruments. Attached hereto as Schedule 8 is a true and correct list of
all instruments, including any promissory notes, and other evidence of
indebtedness held by Holdings and its Subsidiaries that are required to be
pledged under the Guarantee and Collateral Agreement, including all intercompany
notes between Holdings and each Subsidiary of Holdings and each Subsidiary of
Holdings and each other such Subsidiary.
9. Advances. Attached hereto as Schedule 9 is (a) a true and correct list of all
advances made by Holdings to any Subsidiary of Holdings or made by any
Subsidiary of Holdings to Holdings or to any other Subsidiary of Holdings (other
than those identified on
Schedule 8), which advances will be on and after the date hereof evidenced by
one or more intercompany notes pledged to the Collateral Agent under the
Guarantee and Collateral Agreement and (b) a true and correct list of all unpaid
intercompany transfers of goods sold and delivered by or to Holdings or any
Subsidiary of Holdings.
10. Mortgage Filings. Attached hereto as Schedule 10 is a schedule setting
forth, with respect to each property set forth in Section 2(f) hereof with an
individual fair market value (including fixtures and improvements) of
$10,000,000 or more, (a) the exact name of the Person that owns such property as
such name appears in its certificate of incorporation or other organizational
document, (b) if different from the name identified pursuant to clause (a), the
exact name of the current record owner of such property reflected in the records
of the filing office for such property identified pursuant to the following
clause and (c) the filing office in which a Mortgage with respect to such
property must be filed or recorded in order for the Collateral Agent to obtain a
perfected security interest therein.
11. Intellectual Property. Attached hereto as Schedule 11(A) in proper form for
filing with the United States Patent and Trademark Office is a schedule setting
forth all of each Grantor's Patents (and all applications therefor), Patent
Licenses, Trademarks (and all applications therefor) and Trademark Licenses,
including the name of the registered owner and the registration number of each
Patent, Patent License, Trademark and Trademark License owned by such Grantor.
Attached hereto as Schedule 11(B) in proper form for filing with the United
States Copyright Office is a schedule setting forth all of each Grantor's
Copyrights (and all applications therefor) and Copyright Licenses, including the
name of the registered owner and the registration number of each Copyright or
Copyright License owned by such Grantor. Each of Schedule 11(A) and Schedule
11(B) contain all the requested information for Patents, Trademarks and
Copyrights arising under the laws of the United States, any other country or any
political subdivision thereof.
12. Commercial Tort Claims. Attached hereto as Schedule 12 is a true and correct
list of commercial tort claims in excess of $1,000,000 held by any Grantor,
including a brief description thereof.
13. Deposit Accounts. Attached hereto as Schedule 13 is a true and correct list
of deposit accounts maintained by each Grantor, including the name and address
of the depositary institution, the type of account, and the account number.
IN WITNESS WHEREOF, the undersigned have duly executed this
certificate on this 9th day of September, 2003.
DEX MEDIA WEST, INC.,
by /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO and President
DEX MEDIA WEST LLC,
by /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO and President
DEX MEDIA WEST FINANCE CO.,
by /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO and President
JPMORGAN CHASE BANK, as
Collateral Agent,
by /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE 1
Changes in Corporate Identity
SCHEDULE 5
Form of UCC Financing Statement
SCHEDULE 6
Schedule of Filings
SCHEDULE 7
Stock Ownership and Other Equity Interests
SCHEDULE 8
Debt Instruments
SCHEDULE 9
Advances
SCHEDULE 10
Mortgage Filings
SCHEDULE 11(A)
Intellectual Property
SCHEDULE 11(B)
Intellectual Property
SCHEDULE 12
Commercial Tort Claims
SCHEDULE 13
Deposit Accounts
