EXECUTION COPY
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GUARANTEE AND COLLATERAL AGREEMENT
made by
FLAVORS HOLDINGS INC.
PNEUMO ABEX CORPORATION
and certain of its Subsidiaries
and
PVI ACQUISITION CORP.
in favor of
THE CHASE MANHATTAN BANK,
as Paying Agent
Dated as of April 17, 2001
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Table of Contents
Page
Section 1. DEFINED TERMS...................................................................................4
1.1 Definitions.....................................................................................4
1.2 Other Definitional Provisions...................................................................7
Section 2. Guarantee.......................................................................................8
2.1 Guarantee.......................................................................................8
2.2 Right of Contribution...........................................................................8
2.3 No Subrogation..................................................................................9
2.4 Amendments, etc. with respect to the Borrower Obligations.......................................9
2.5 Guarantee Absolute and Unconditional............................................................9
2.6 Reinstatement..................................................................................10
2.7 Payments.......................................................................................10
Section 3. GRANT OF SECURITY INTEREST.....................................................................10
Section 4. REPRESENTATIONS AND WARRANTIES.................................................................11
4.1 Title; No Other Liens..........................................................................11
4.2 Perfected First Priority Liens.................................................................11
4.3 Jurisdiction of Organization; Chief Executive Office...........................................12
4.4 Inventory and Equipment........................................................................12
4.5 Farm Products..................................................................................12
4.6 Investment Property............................................................................12
4.7 Receivables....................................................................................12
4.8 Intellectual Property..........................................................................12
Section 5. COVENANTS......................................................................................13
5.1 Delivery of Instruments, Certificated Securities and Chattel Paper.............................13
5.2 Maintenance of Insurance.......................................................................13
5.3 Payment of Obligations.........................................................................14
5.4 Maintenance of Perfected Security Interest; Further Documentation..............................14
5.5 Changes in Locations, Name, etc................................................................14
5.6 Notices........................................................................................15
5.7 Investment Property............................................................................15
5.8 Receivables....................................................................................16
5.9 Intellectual Property..........................................................................16
Section 6. REMEDIAL PROVISIONS............................................................................18
6.1 Certain Matters Relating to Receivables........................................................18
6.2 Communications with Obligors; Grantors Remain Liable...........................................18
6.3 Pledged Stock..................................................................................19
6.4 Proceeds to be Turned Over To Paying Agent.....................................................19
6.5 Application of Proceeds........................................................................20
6.6 Code and Other Remedies........................................................................20
6.7 Registration Rights............................................................................21
6.8 Waiver; Deficiency.............................................................................22
Section 7. THE PAYING AGENT...............................................................................22
7.1 Paying Agent's Appointment as Attorney-in-Fact, etc............................................22
7.2 Duty of Paying Agent...........................................................................23
7.3 Execution of Financing Statements..............................................................24
7.4 Authority of Paying Agent......................................................................24
Section 8. MISCELLANEOUS..................................................................................24
8.1 Amendments in Writing..........................................................................24
8.2 Notices........................................................................................24
8.3 No Waiver by Course of Conduct; Cumulative Remedies............................................24
8.4 Enforcement Expenses; Indemnification..........................................................25
8.5 Successors and Assigns.........................................................................25
8.6 Set-Off........................................................................................25
8.7 Counterparts...................................................................................26
8.8 Severability...................................................................................26
8.9 Section Headings...............................................................................26
8.10 Integration....................................................................................26
8.11 GOVERNING LAW..................................................................................26
8.12 Submission To Jurisdiction; Waivers............................................................26
8.13 Acknowledgements...............................................................................27
8.14 Additional Grantors............................................................................27
8.15 Releases.......................................................................................27
8.16 WAIVER OF JURY TRIAL...........................................................................28
SCHEDULES
Schedule 1........Notice Addresses
Schedule 2........Investment Property
Schedule 3........Perfection Matters
Schedule 4........Jurisdictions of Organization and Chief Executive Offices
Schedule 5........Inventory and Equipment Locations
Schedule 6........Intellectual Property
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of April 17,
2001, made by each of the signatories hereto (together with any other
entity that may become a party hereto as provided herein, the "Grantors"),
in favor of THE CHASE MANHATTAN BANK, as Paying Agent (in such capacity,
the "Paying Agent") for the banks and other financial institutions or
entities (the "Lenders") from time to time parties to the Credit Agreement,
dated as of April 17, 2001 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among FLAVORS HOLDINGS INC., a
Delaware corporation ("Holdings"), PNEUMO ABEX CORPORATION, a Delaware
corporation (the "Borrower"), BNP PARIBAS, as documentation agent, and the
Paying Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower upon the
terms and subject to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the
Credit Agreement will be used in part to enable the Borrower to make
valuable transfers to one or more of the other Grantors in connection with
the operation of their respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in
related businesses, and each Grantor will derive substantial direct and
indirect benefit from the making of the extensions of credit under the
Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of
the Lenders to make their respective extensions of credit to the Borrower
under the Credit Agreement that the Grantors shall have executed and
delivered this Agreement to the Paying Agent for the ratable benefit of the
Lenders;
NOW, THEREFORE, in consideration of the premises and to
induce the Paying Agent and the Lenders to enter into the Credit Agreement
and to induce the Lenders to make their respective extensions of credit to
the Borrower thereunder, each Grantor hereby agrees with the Paying Agent,
for the ratable benefit of the Lenders, as follows:
Section 1. DEFINED TERMS
1.1 Definitions. (a).Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement, and the following terms are used
herein as defined in the New York UCC: Accounts, Certificated Security,
Chattel Paper, Documents, Equipment, Farm Products, Instruments and
Inventory.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Borrower Obligations": the collective reference to the
unpaid principal of and interest on the Loans and Reimbursement Obligations
and all other obligations and liabilities of the Borrower (including,
without limitation, interest accruing at the then applicable rate provided
in the Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in
the Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) to the Paying Agent or any Lender
(or, in the case of any Specified Hedge Agreement, any Affiliate of any
Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, the Credit Agreement, this Agreement, the
other Loan Documents, any Letter of Credit, any Specified Hedge Agreement
or any other document made, delivered or given in connection with any of
the foregoing, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to
the Paying Agent or to the Lenders that are required to be paid by the
Borrower pursuant to the terms of any of the foregoing agreements).
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by
the Paying Agent as provided in Section 6.1 or 6.4.
"Copyrights": (i) all copyrights arising under the laws of
the United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished
(including, without limitation, those listed in Schedule 6), all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right to
obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any
Grantor as licensor or licensee (including, without limitation, those
listed in Schedule 6), granting any right under any Copyright, including,
without limitation, the grant of rights to manufacture, distribute, exploit
and sell materials derived from any Copyright.
"Deposit Account": as defined in the Uniform Commercial Code
of any applicable jurisdiction and, in any event, including, without
limitation, any demand, time, savings, passbook or like account maintained
with a depositary institution.
"Foreign Subsidiary": any Subsidiary organized under the
laws of any jurisdiction outside the United States of America.
"Foreign Subsidiary Voting Stock": the voting Capital Stock
of any Foreign Subsidiary.
"General Intangibles": all "general intangibles" as such
term is defined in Section 9-106 of the New York UCC and, in any event,
including, without limitation, with respect to any Grantor, all contracts,
agreements, instruments and indentures in any form (including, in the case
of PVI Acquisition, the Registration Rights Documentation), and portions
thereof, to which such Grantor is a party or under which such Grantor has
any right, title or interest or to which such Grantor or any property of
such Grantor is subject, as the same may from time to time be amended,
supplemented or otherwise modified, including, without limitation, (i) all
rights of such Grantor to receive moneys due and to become due to it
thereunder or in connection therewith, (ii) all rights of such Grantor to
damages arising thereunder and (iii) all rights of such Grantor to perform
and to exercise all remedies thereunder, in each case to the extent the
terms thereof (after giving effect to any consent that has been obtained,
it being understood that such Grantor is not obligated to obtain any such
consent) do not prohibit the grant by such Grantor of a security interest
pursuant to this Agreement in its right, title and interest therein without
the consent of any other party thereto and do not give any other party
thereto the right to terminate its obligations thereunder; provided, that
the foregoing limitation shall not affect, limit, restrict or impair the
grant by such Grantor of a security interest pursuant to this Agreement in
any Receivable or any money or other amounts due or to become due or other
right to payment under any such contract, agreement, instrument or
indenture.
"Guarantor Obligations": with respect to any Guarantor, all
obligations and liabilities of such Guarantor owed to the Paying Agent or
any Lender which may arise under or in connection with this Agreement
(including, without limitation, Section 2) or any other Loan Document to
which such Guarantor is a party, in each case whether on account of
guarantee obligations, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Paying Agent or to the Lenders that are
required to be paid by such Guarantor pursuant to the terms of this
Agreement or any other Loan Document).
"Guarantors": the collective reference to each Grantor other
than the Borrower.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, multinational or foreign laws or
otherwise, including, without limitation, the Copyrights, the Copyright
Licenses, the Patents, the Patent Licenses, the Trademarks and the
Trademark Licenses, and all rights to xxx at law or in equity for any
infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
"Intercompany Note": any promissory note evidencing loans
made by any Grantor to Holdings or any of its Subsidiaries.
"Investment Property": the collective reference to (i) all
"investment property" as such term is defined in Section 9-115 of the New
York UCC (other than any Foreign Subsidiary Voting Stock excluded from the
definition of "Pledged Stock") and (ii) whether or not constituting
"investment property" as so defined, all Pledged Notes and all Pledged
Stock.
"Issuers": the collective reference to each issuer of any
Investment Property.
"New York UCC": the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Obligations": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Patents": (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and
extensions thereof and all goodwill associated therewith, including,
without limitation, any of the foregoing referred to in Schedule 6, (ii)
all applications for letters patent of the United States or any other
country and all divisions, continuations and continuations-in-part thereof,
including, without limitation, any of the foregoing referred to in Schedule
6, and (iii) all rights to obtain any reissues or extensions of the
foregoing.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to any Grantor of any right to manufacture,
use or sell any invention covered in whole or in part by a Patent,
including, without limitation, any of the foregoing referred to in Schedule
6.
"Pledged Notes": all promissory notes listed on Schedule 2,
all Intercompany Notes at any time issued to any Grantor and all other
promissory notes issued to or held by any Grantor (other than promissory
notes issued in connection with extensions of trade credit by any Grantor
in the ordinary course of business).
"Pledged Stock": the shares of Capital Stock listed on
Schedule 2, together with any other shares, stock certificates, options,
interests or rights of any nature whatsoever in respect of the Capital
Stock of any Person that may be issued or granted to, or held by, any
Grantor while this Agreement is in effect; provided that in no event shall
more than 66% of the total outstanding Foreign Subsidiary Voting Stock of
any Foreign Subsidiary be required to be pledged hereunder.
"Proceeds": all "proceeds" as such term is defined in
Section 9-306(1) of the New York UCC and, in any event, shall include,
without limitation, all dividends or other income from the Investment
Property, collections thereon or distributions or payments with respect
thereto.
"Receivable": any right to payment for goods sold or leased
or for services rendered, whether or not such right is evidenced by an
Instrument or Chattel Paper and whether or not it has been earned by
performance (including, without limitation, any Account).
"Securities Act": the Securities Act of 1933, as amended.
"Specified Guarantors": the collective reference to the
Subsidiary Guarantors and PVI Acquisition.
"Trademarks": (i) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers, and
all goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, including, without
limitation, any of the foregoing referred to in Schedule 6, and (ii) the
right to obtain all renewals thereof.
"Trademark License": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred to
in Schedule 6.
1.2 Other Definitional Provisions. (a) The words "hereof,"
"herein", "hereto" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section and Schedule references
are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall
refer to such Grantor's Collateral or the relevant part thereof.
Section 2. Guarantee
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly
and severally, unconditionally and irrevocably, guarantees to the Paying
Agent, for the ratable benefit of the Lenders and their respective
successors, indorsees, transferees and assigns, the prompt and complete
payment and performance by the Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Borrower Obligations.
(b) Anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of each Guarantor
hereunder and under the other Loan Documents shall in no event
exceed the amount which can be guaranteed by such Guarantor under
applicable federal and state laws relating to the insolvency of
debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may
at any time and from time to time exceed the amount of the
liability of such Guarantor hereunder without impairing the
guarantee contained in this Section 2 or affecting the rights and
remedies of the Paying Agent or any Lender hereunder.
(d) The guarantee contained in this Section 2 shall remain
in full force and effect until all the Borrower Obligations and
the obligations of each Guarantor under the guarantee contained in
this Section 2 shall have been Fully Satisfied, notwithstanding
that from time to time during the term of the Credit Agreement the
Borrower may be free from any Borrower Obligations.
(e) No payment made by the Borrower, any of the Guarantors,
any other guarantor or any other Person or received or collected
by the Paying Agent or any Lender from the Borrower, any of the
Guarantors, any other guarantor or any other Person by virtue of
any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in
payment of the Borrower Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other
than any payment made by such Guarantor in respect of the Borrower
Obligations or any payment received or collected from such
Guarantor in respect of the Borrower Obligations), remain liable
for the Borrower Obligations up to the maximum liability of such
Guarantor hereunder until the Borrower Obligations are Fully
Satisfied.
2.2 Right of Contribution. Each Specified Guarantor hereby
agrees that to the extent that a Specified Guarantor shall have paid more
than its proportionate share of any payment made hereunder, such Specified
Guarantor shall be entitled to seek and receive contribution from and
against any other Specified Guarantor hereunder which has not paid its
proportionate share of such payment. Each Specified Guarantor's right of
contribution shall be subject to the terms and conditions of Section 2.3.
The provisions of this Section 2.2 shall in no respect limit the
obligations and liabilities of any Specified Guarantor to the Paying Agent
and the Lenders, and each Specified Guarantor shall remain liable to the
Paying Agent and the Lenders for the full amount guaranteed by such
Specified Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor
by the Paying Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Paying Agent or any Lender against
the Borrower or any other Guarantor or any collateral security or guarantee
or right of offset held by the Paying Agent or any Lender for the payment
of the Borrower Obligations, nor shall any Guarantor seek or be entitled to
seek any contribution or reimbursement from the Borrower or any other
Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Paying Agent and the Lenders by the Borrower on
account of the Borrower Obligations are Fully Satisfied. If any amount
shall be paid to any Guarantor on account of such subrogation rights at any
time when all of the Borrower Obligations shall not have been Fully
Satisfied, such amount shall be held by such Guarantor in trust for the
Paying Agent and the Lenders, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned
over to the Paying Agent in the exact form received by such Guarantor (duly
indorsed by such Guarantor to the Paying Agent, if required), to be applied
against the Borrower Obligations, whether matured or unmatured, in such
order as the Paying Agent may determine.
2.4 Amendments, etc. with respect to the Borrower
Obligations. Each Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against any
Guarantor and without notice to or further assent by any Guarantor, any
demand for payment of any of the Borrower Obligations made by the Paying
Agent or any Lender may be rescinded by the Paying Agent or such Lender and
any of the Borrower Obligations continued, and the Borrower Obligations, or
the liability of any other Person upon or for any part thereof, or any
collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or
released by the Paying Agent or any Lender, and the Credit Agreement and
the other Loan Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated,
in whole or in part, as the Paying Agent (or the Required Lenders or all
Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Paying Agent or any Lender for the payment of the Borrower Obligations may
be sold, exchanged, waived, surrendered or released. Neither the Paying
Agent nor any Lender shall have any obligation to protect, secure, perfect
or insure any Lien at any time held by it as security for the Borrower
Obligations or for the guarantee contained in this Section 2 or any
property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of
any of the Borrower Obligations and notice of or proof of reliance by the
Paying Agent or any Lender upon the guarantee contained in this Section 2
or acceptance of the guarantee contained in this Section 2; the Borrower
Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon the guarantee contained in this Section 2; and all
dealings between the Borrower and any of the Guarantors, on the one hand,
and the Paying Agent and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Borrower or any of the Guarantors with respect to
the Borrower Obligations. Each Guarantor understands and agrees that the
guarantee contained in this Section 2 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of the Credit Agreement or any other Loan
Document, any of the Borrower Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time
or from time to time held by the Paying Agent or any Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower or any other Person against the Paying Agent or any Lender, or (c)
any other circumstance whatsoever (with or without notice to or knowledge
of the Borrower or such Guarantor) which constitutes, or might be construed
to constitute, an equitable or legal discharge of the Borrower for the
Borrower Obligations, or of such Guarantor under the guarantee contained in
this Section 2, in bankruptcy or in any other instance. When making any
demand hereunder or otherwise pursuing its rights and remedies hereunder
against any Guarantor, the Paying Agent or any Lender may, but shall be
under no obligation to, make a similar demand on or otherwise pursue such
rights and remedies as it may have against the Borrower, any other
Guarantor or any other Person or against any collateral security or
guarantee for the Borrower Obligations or any right of offset with respect
thereto, and any failure by the Paying Agent or any Lender to make any such
demand, to pursue such other rights or remedies or to collect any payments
from the Borrower, any other Guarantor or any other Person or to realize
upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Borrower, any other Guarantor or any
other Person or any such collateral security, guarantee or right of offset,
shall not relieve any Guarantor of any obligation or liability hereunder,
and shall not impair or affect the rights and remedies, whether express,
implied or available as a matter of law, of the Paying Agent or any Lender
against any Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2
shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Borrower Obligations
is rescinded or must otherwise be restored or returned by the Paying Agent
or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Guarantor, or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, the Borrower or any Guarantor or any substantial part
of its property, or otherwise, all as though such payments had not been
made.
2.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Paying Agent without set-off or counterclaim
in Dollars at the Funding Office.
Section 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Paying
Agent, and hereby grants to the Paying Agent, for the ratable benefit of
the Lenders, a security interest in, all of the following property now
owned or at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any right, title
or interest (collectively, the "Collateral"), as collateral security for
the prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of such Grantor's
Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Investment Property;
(k) all other personal property not otherwise described
above;
(l) all books and records pertaining to the Collateral; and
(m) 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.
Section 4. REPRESENTATIONS AND WARRANTIES
To induce the Paying Agent and the Lenders to enter into the
Credit Agreement and to induce the Lenders to make their respective
extensions of credit to the Borrower thereunder, each Grantor hereby
represents and warrants to the Paying Agent and each Lender that:
4.1 Title; No Other Liens. Except for the security interest
granted to the Paying Agent for the ratable benefit of the Lenders pursuant
to this Agreement and the other Liens permitted to exist on the Collateral
by the Credit Agreement, such Grantor owns each item of the Collateral free
and clear of any and all Liens or claims of others. No financing statement
or other public notice with respect to all or any part of the Collateral is
on file or of record in any public office, except such as have been filed
in favor of the Paying Agent, for the ratable benefit of the Lenders,
pursuant to this Agreement or as are permitted by the Credit Agreement.
4.2 Perfected First Priority Liens. The security interests
granted pursuant to this Agreement (a) upon completion of the filings and
other actions specified on Schedule 3 (which, in the case of all filings
and other documents referred to on said Schedule, have been delivered to
the Paying Agent in completed and duly executed form) will constitute valid
perfected security interests in all of the Collateral in favor of the
Paying Agent, for the ratable benefit of the Lenders, as collateral
security for such Grantor's Obligations, enforceable in accordance with the
terms hereof against all creditors of such Grantor and any Persons
purporting to purchase any Collateral from such Grantor (except purchases
of Inventory in the ordinary course of business), except as enforceability
is affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing, and (b) are prior to all other Liens on the
Collateral in existence on the date hereof except for unrecorded Liens
permitted by the Credit Agreement which have priority over the Liens on the
Collateral by operation of law.
4.3 Jurisdiction of Organization; Chief Executive Office. On
the date hereof, such Grantor's jurisdiction of organization and the
location of such Grantor's chief executive office or sole place of business
are specified on Schedule 4.
4.4 Inventory and Equipment. On the date hereof, the
Inventory and the Equipment (other than mobile goods) are kept at the
locations listed on Schedule 5.
4.5 Farm Products. None of the Collateral constitutes, or is
the Proceeds of, Farm Products.
4.6 Investment Property. (a) The shares of Pledged Stock
pledged by such Grantor hereunder constitute all the issued and outstanding
shares of all classes of the Capital Stock of each Issuer owned by such
Grantor or, in the case of Foreign Subsidiary Voting Stock, if less, 66% of
the outstanding Foreign Subsidiary Voting Stock of each relevant Issuer.
(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid
and binding obligation of the obligor with respect thereto,
enforceable in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and
has good and marketable title to, the Investment Property pledged
by it hereunder, free of any and all Liens or options in favor of,
or claims of, any other Person, except the security interest
created by this Agreement.
4.7 Receivables. (a) No amount payable to such Grantor under
or in connection with any Receivable is evidenced by any Instrument or
Chattel Paper which has not been delivered to the Paying Agent to the
extent such delivery is required by Section 5.1.
(b) None of the obligors on any Receivables is a
Governmental Authority.
(c) The amounts represented by such Grantor to the Lenders
from time to time as owing to such Grantor in respect of the
Receivables will at such times be accurate.
4.8 Intellectual Property. (a) Schedule 6 lists all
Intellectual Property owned by such Grantor in its own name on the date
hereof that has been registered in or filed with the U.S. Patent and
Trademark Office or the U.S. Copyright Office, as applicable.
(b) On the date hereof, all material Intellectual Property
that has been registered in or filed with the U.S. Patent and
Trademark Office or the U.S. Copyright Office, as applicable, is
valid, subsisting, unexpired and enforceable, has not been
abandoned and does not infringe the intellectual property rights
of any other Person.
(c) Except as set forth in Schedule 6, on the date hereof,
none of the material Intellectual Property owned by such Grantor
in its own name is the subject of any licensing or franchise
agreement pursuant to which such Grantor is the licensor or
franchisor.
(d) No holding, decision or judgment has been rendered by
any Governmental Authority which would limit, cancel or question
the validity of, or such Grantor's rights in, any Intellectual
Property in any respect that could reasonably be expected to have
a Material Adverse Effect.
(e) No action or proceeding is pending, or, to the knowledge
of such Grantor, threatened, on the date hereof (i) seeking to
limit, cancel or question the validity of any Intellectual
Property or such Grantor's ownership interest therein, or (ii)
which, if adversely determined, would have a material adverse
effect on the value of any Intellectual Property.
Section 5. COVENANTS
Each Grantor covenants and agrees with the Paying Agent and
the Lenders that, from and after the date of this Agreement until the
Obligations shall have been Fully Satisfied:
5.1 Delivery of Instruments, Certificated Securities and
Chattel Paper. If any amount in excess of $500,000 payable under or in
connection with any of the Collateral shall be or become evidenced by any
Instrument, Certificated Security or Chattel Paper, such Instrument,
Certificated Security or Chattel Paper shall be immediately delivered to
the Paying Agent, duly indorsed in a manner satisfactory to the Paying
Agent, to be held as Collateral pursuant to this Agreement.
5.2 Maintenance of Insurance. (a) Such Grantor will
maintain, with financially sound and reputable companies, insurance
policies (i) insuring the Inventory and Equipment against loss by fire,
explosion, theft and such other casualties as may be reasonably
satisfactory to the Paying Agent and (ii) to the extent requested by the
Paying Agent insuring such Grantor, the Paying Agent and the Lenders
against liability for personal injury and property damage relating to such
Inventory and Equipment, such policies to be in such form and amounts and
having such coverage as may be reasonably satisfactory to the Paying Agent
and the Lenders.
(b) All such insurance shall (i) provide that no
cancellation, material reduction in amount or material change in
coverage thereof shall be effective until at least 30 days after
receipt by the Paying Agent of written notice thereof, (ii) name
the Paying Agent as insured party or loss payee and (iii) be
reasonably satisfactory in all other respects to the Paying Agent.
(c) If requested by the Paying Agent, the Borrower shall
deliver to the Paying Agent and the Lenders information regarding
such insurance coverage substantially concurrently with each
delivery of the Borrower's audited annual financial statements and
such supplemental reports with respect thereto as the Paying Agent
may from time to time reasonably request.
5.3 Payment of Obligations. Such Grantor will pay and
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all taxes, assessments and governmental
charges or levies imposed upon the Collateral or in respect of income or
profits therefrom, as well as all claims of any kind (including, without
limitation, claims for labor, materials and supplies) against or with
respect to the Collateral, except that no such charge need be paid if the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings, reserves in conformity with GAAP with respect
thereto have been provided on the books of such Grantor and such
proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any
interest therein. Notwithstanding anything to the contrary in the foregoing
sentence, no Grantor shall be in default under this Section unless the
aggregate amount of non-contested Indebtedness or obligations which the
Grantors, in the aggregate, have so failed to pay, discharge or satisfy
before they become delinquent and which remain delinquent at the time of
determination is more than $2,000,000 in the aggregate.
5.4 Maintenance of Perfected Security Interest; Further
Documentation. (a) Such Grantor shall maintain the security interest
created by this Agreement as a perfected security interest having at least
the priority described in Section 4.2 and shall defend such security
interest against the claims and demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Paying Agent and the
Lenders from time to time statements and schedules further
identifying and describing the assets and property of such Grantor
and such other reports in connection therewith as the Paying Agent
may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written
request of the Paying Agent, and at the sole expense of such
Grantor, such Grantor will promptly and duly execute and deliver,
and have recorded, such further instruments and documents and take
such further actions as the Paying Agent may reasonably request
for the purpose of obtaining or preserving the full benefits of
this Agreement and of the rights and powers herein granted,
including, without limitation, (i) filing any financing or
continuation statements under the Uniform Commercial Code (or
other similar laws) in effect in any jurisdiction with respect to
the security interests created hereby and (ii) in the case of
Investment Property, Deposit Accounts and any other relevant
Collateral, taking any actions necessary to enable the Paying
Agent to obtain "control" (within the meaning of the applicable
Uniform Commercial Code) with respect thereto.
5.5 Changes in Locations, Name, etc. Such Grantor will not,
except upon 15 days' prior written notice to the Paying Agent and delivery
to the Paying Agent of (a) all additional executed financing statements and
other documents reasonably requested by the Paying Agent to maintain the
validity, perfection and priority of the security interests provided for
herein and (b) if applicable, a written supplement to Schedule 5 showing
any additional location at which Inventory or Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be
kept at a location other than those listed on Schedule 5;
(ii) change its jurisdiction of organization or the
location of its chief executive office or sole place of
business from that referred to in Section 4.3; or
(iii) change its name, identity or corporate or other
organizational structure to such an extent that any
financing statement filed by the Paying Agent in connection
with this Agreement would become misleading.
5.6 Notices. Such Grantor will advise the Paying Agent and
the Lenders promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby
or Liens permitted under the Credit Agreement) on any of the
Collateral which would adversely affect the ability of the Paying
Agent to exercise any of its remedies hereunder; and
(b) of the occurrence of any other event which could
reasonably be expected to have a material adverse effect on the
aggregate value of the Collateral or on the security interests
created hereby.
5.7 Investment Property. (a) If such Grantor shall become
entitled to receive or shall receive any certificate (including, without
limitation, any certificate representing a dividend or a distribution in
connection with any reclassification, increase or reduction of capital or
any certificate issued in connection with any reorganization), option or
rights in respect of the Capital Stock of any Issuer, whether in addition
to, in substitution of, as a conversion of, or in exchange for, any shares
of the Pledged Stock, or otherwise in respect thereof, such Grantor shall
accept the same as the agent of the Paying Agent and the Lenders, hold the
same in trust for the Paying Agent and the Lenders and deliver the same
forthwith to the Paying Agent in the exact form received, duly indorsed by
such Grantor to the Paying Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by such
Grantor and with, if the Paying Agent so requests, signature guaranteed, to
be held by the Paying Agent, subject to the terms hereof, as additional
collateral security for the Obligations. Any sums paid upon or in respect
of the Investment Property upon the liquidation or dissolution of any
Issuer shall be paid over to the Paying Agent to be held by it hereunder as
additional collateral security for the Obligations, and in case any
distribution of capital shall be made on or in respect of the Investment
Property or any property shall be distributed upon or with respect to the
Investment Property pursuant to the recapitalization or reclassification of
the capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected
security interest in favor of the Paying Agent, be delivered to the Paying
Agent to be held by it hereunder as additional collateral security for the
Obligations. If any sums of money or property so paid or distributed in
respect of the Investment Property shall be received by such Grantor, such
Grantor shall, until such money or property is paid or delivered to the
Paying Agent, hold such money or property in trust for the Paying Agent and
the Lenders, segregated from other funds of such Grantor, as additional
collateral security for the Obligations.
Notwithstanding the foregoing provisions of this Section
5.7(a) or any other provision of this Agreement, in no event shall more
than 66% of the total outstanding Foreign Subsidiary Voting Stock be
required to be pledged hereunder.
(b) Without the prior written consent of the Paying Agent,
such Grantor will not (i) vote to enable, or take any other action
to permit, any Issuer to issue any Capital Stock of any nature or
to issue any other securities convertible into or granting the
right to purchase or exchange for any Capital Stock of any nature
of any Issuer, (ii) sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Investment
Property or Proceeds thereof (except for any such transaction
consummated by the Borrower or any of its Subsidiaries that is
expressly permitted by the Credit Agreement), (iii) create, incur
or permit to exist any Lien or option in favor of, or any claim of
any Person with respect to, any of the Investment Property or
Proceeds thereof, or any interest therein, except for the security
interests created by this Agreement and nonconsensual Liens
permitted by Section 7.2 of the Credit Agreement or (iv) enter
into any agreement or undertaking restricting the right or ability
of such Grantor or the Paying Agent to sell, assign or transfer
any of the Investment Property or Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such
Issuer agrees that (i) it will be bound by the terms of this
Agreement relating to the Investment Property issued by it and
will comply with such terms insofar as such terms are applicable
to it, (ii) it will notify the Paying Agent promptly in writing of
the occurrence of any of the events described in Section 5.7(a)
with respect to the Investment Property issued by it and (iii) the
terms of Sections 6.3(c) and 6.7 shall apply to it, mutatis
mutandis, with respect to all actions that may be required of it
pursuant to Section 6.3(c) or 6.7 with respect to the Investment
Property issued by it.
5.8 Receivables. (a) Other than in the ordinary course of
business consistent with its past practice, such Grantor will not (i) grant
any extension of the time of payment of any Receivable, (ii) compromise or
settle any Receivable for less than the full amount thereof, (iii) release,
wholly or partially, any Person liable for the payment of any Receivable,
(iv) allow any credit or discount whatsoever on any Receivable or (v)
amend, supplement or modify any Receivable in any manner that could
adversely affect the value thereof.
(b) Such Grantor will deliver to the Paying Agent a copy of
each material demand, notice or document received by it that
questions or calls into doubt the validity or enforceability of
more than 5% of the aggregate amount of the then outstanding
Receivables.
5.9 Intellectual Property. (a) Such Grantor (either itself
or through licensees) will (i) continue to use each material Trademark on
each and every trademark class of goods applicable to its current line as
reflected in its current catalogs, brochures and price lists in order to
maintain such Trademark in full force free from any claim of abandonment
for non-use, (ii) maintain as in the past the quality of products and
services offered under such Trademark, (iii) use such Trademark with the
appropriate notice of registration and all other notices and legends
required by applicable Requirements of Law, (iv) not adopt or use any xxxx
which is confusingly similar or a colorable imitation of such Trademark
unless the Paying Agent, for the ratable benefit of the Lenders, shall
obtain a perfected security interest in such xxxx pursuant to this
Agreement, and (v) not (and not permit any licensee or sublicensee thereof
to) do any act or knowingly omit to do any act whereby such Trademark may
become invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees) will
not do any act, or omit to do any act, whereby any material Patent
may become forfeited, abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees) (i)
will employ each material Copyright and (ii) will not (and will
not permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any material portion of the
material Copyrights may become invalidated or otherwise impaired.
Such Grantor will not (either itself or through licensees) do any
act whereby any material portion of the material Copyrights may
fall into the public domain.
(d) Such Grantor (either itself or through licensees) will
not do any act that knowingly uses any material Intellectual
Property to infringe the intellectual property rights of any other
Person.
(e) Such Grantor will notify the Paying Agent and the
Lenders immediately if it knows, or has reason to know, that any
application or registration relating to any material Intellectual
Property may become forfeited, abandoned or dedicated to the
public, or of any adverse determination or development (including,
without limitation, the institution of, or any such determination
or development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court
or tribunal in any country) regarding such Grantor's ownership of,
or the validity of, any material Intellectual Property or such
Grantor's right to register the same or to own and maintain the
same.
(f) Whenever such Grantor, either by itself or through any
agent, employee, licensee or designee, shall file an application
for the registration of any Intellectual Property with the United
States Patent and Trademark Office, the United States Copyright
Office or any similar office or agency in any other country or any
political subdivision thereof, such Grantor shall report such
filing to the Paying Agent within five Business Days after the
last day of the fiscal quarter in which such filing occurs. Upon
request of the Paying Agent, such Grantor shall execute and
deliver, and have recorded, any and all agreements, instruments,
documents, and papers as the Paying Agent may request to evidence
the Paying Agent's and the Lenders' security interest in any
Copyright, Patent or Trademark and the goodwill and general
intangibles of such Grantor relating thereto or represented
thereby.
(g) Such Grantor will take all reasonable and necessary
steps, including, without limitation, in any proceeding before the
United States Patent and Trademark Office, the United States
Copyright Office or any similar office or agency in any other
country or any political subdivision thereof, to maintain and
pursue each application (and to obtain the relevant registration)
and to maintain each registration of the material Intellectual
Property, including, without limitation, filing of applications
for renewal, affidavits of use and affidavits of incontestability.
(h) In the event that any material Intellectual Property is
infringed, misappropriated or diluted by a third party, such
Grantor shall (i) take such actions as such Grantor shall
reasonably deem appropriate under the circumstances to protect
such Intellectual Property and (ii) if such Intellectual Property
is of material economic value, promptly notify the Paying Agent
after it learns thereof and, if reasonably requested by the Paying
Agent, xxx for infringement, misappropriation or dilution, to seek
injunctive relief where appropriate and to recover any and all
damages for such infringement, misappropriation or dilution.
Section 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) The Paying
Agent shall have the right to make test verifications of the Receivables in
any manner and through any medium that it reasonably considers advisable,
and each Grantor shall furnish all such assistance and information as the
Paying Agent may require in connection with such test verifications. At any
time and from time to time, upon the Paying Agent's reasonable request and
at the expense of the relevant Grantor, such Grantor shall cause
independent public accountants or others satisfactory to the Paying Agent
to furnish to the Paying Agent reports showing reconciliations, aging and
test verifications of, and trial balances for, the Receivables.
(b) The Paying Agent hereby authorizes each Grantor to
collect such Grantor's Receivables, subject to the Paying Agent's
direction and control, and the Paying Agent may curtail or
terminate said authority at any time after the occurrence and
during the continuance of an Event of Default. If required by the
Paying Agent at any time after the occurrence and during the
continuance of an Event of Default, any payments of Receivables,
when collected by any Grantor, (i) shall be forthwith (and, in any
event, within two Business Days) deposited by such Grantor in the
exact form received, duly indorsed by such Grantor to the Paying
Agent if required, in a Collateral Account maintained under the
sole dominion and control of the Paying Agent, subject to
withdrawal by the Paying Agent for the account of the Lenders only
as provided in Section 6.5, and (ii) until so turned over, shall
be held by such Grantor in trust for the Paying Agent and the
Lenders, segregated from other funds of such Grantor. Each such
deposit of Proceeds of Receivables shall be accompanied by a
report identifying in reasonable detail the nature and source of
the payments included in the deposit.
(c) At the Paying Agent's request at any time after the
occurrence, and during the continuance, of an Event of Default,
each Grantor shall deliver to the Paying Agent all original and
other documents evidencing, and relating to, the agreements and
transactions which gave rise to the Receivables, including,
without limitation, all original orders, invoices and shipping
receipts.
6.2 Communications with Obligors; Grantors Remain Liable.
(a) The Paying Agent in its own name or in the name of others may at any
time after the occurrence and during the continuance of an Event of Default
communicate with obligors under the Receivables and parties to the
Contracts to verify with them to the Paying Agent's satisfaction the
existence, amount and terms of any Receivables or Contracts.
(b) Upon the request of the Paying Agent at any time after
the occurrence and during the continuance of an Event of Default,
each Grantor shall notify obligors on the Receivables and parties
to the Contracts that the Receivables and the Contracts have been
assigned to the Paying Agent for the ratable benefit of the
Lenders and that payments in respect thereof shall be made
directly to the Paying Agent.
(c) Anything herein to the contrary notwithstanding, each
Grantor shall remain liable under each of the Receivables and
Contracts to observe and perform all the conditions and
obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise thereto.
Neither the Paying Agent nor any Lender shall have any obligation
or liability under any Receivable (or any agreement giving rise
thereto) or Contract by reason of or arising out of this Agreement
or the receipt by the Paying Agent or any Lender of any payment
relating thereto, nor shall the Paying Agent or any Lender be
obligated in any manner to perform any of the obligations of any
Grantor under or pursuant to any Receivable (or any agreement
giving rise thereto) or Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any
party thereunder, to present or file any claim, to take any action
to enforce any performance or to collect the payment of any
amounts which may have been assigned to it or to which it may be
entitled at any time or times.
6.3 Pledged Stock. (a) Unless an Event of Default shall have
occurred and be continuing and the Paying Agent shall have given notice to
the relevant Grantor of the Paying Agent's intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be
permitted to receive all cash dividends paid in respect of the Pledged
Stock and all payments made in respect of the Pledged Notes to the extent
permitted in the Credit Agreement, and to exercise all voting and corporate
or other organizational rights with respect to the Investment Property;
provided, however, that no vote shall be cast or corporate or other
organizational right exercised or other action taken which, in the Paying
Agent's reasonable judgment, would impair the Collateral or which would be
inconsistent with or result in any violation of any provision of the Credit
Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and
the Paying Agent shall give notice of its intent to exercise such
rights to the relevant Grantor or Grantors, (i) the Paying Agent
shall have the right to receive any and all cash dividends,
payments or other Proceeds paid in respect of the Investment
Property and make application thereof to the Obligations in such
order as the Paying Agent may determine, and (ii) any or all of
the Investment Property shall be registered in the name of the
Paying Agent or its nominee, and the Paying Agent or its nominee
may thereafter exercise (x) all voting, corporate and other rights
pertaining to such Investment Property at any meeting of
shareholders of the relevant Issuer or Issuers or otherwise and
(y) any and all rights of conversion, exchange and subscription
and any other rights, privileges or options pertaining to such
Investment Property as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its
discretion any and all of the Investment Property upon the merger,
consolidation, reorganization, recapitalization or other
fundamental change in the corporate or other organizational
structure of any Issuer, or upon the exercise by any Grantor or
the Paying Agent of any right, privilege or option pertaining to
such Investment Property, and in connection therewith, the right
to deposit and deliver any and all of the Investment Property with
any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the Paying
Agent may determine), all without liability except to account for
property actually received by it, but the Paying Agent shall have
no duty to any Grantor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or
delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer
of any Investment Property pledged by such Grantor hereunder to
(i) comply with any instruction received by it from the Paying
Agent in writing that (x) states that an Event of Default has
occurred and is continuing and (y) is otherwise in accordance with
the terms of this Agreement, without any other or further
instructions from such Grantor, and each Grantor agrees that each
Issuer shall be fully protected in so complying, and (ii) unless
otherwise expressly permitted hereby, pay any dividends or other
payments with respect to the Investment Property directly to the
Paying Agent.
6.4 Proceeds to be Turned Over To Paying Agent. In addition
to the rights of the Paying Agent and the Lenders specified in Section 6.1
with respect to payments of Receivables, if an Event of Default shall occur
and be continuing, all Proceeds received by any Grantor consisting of cash,
checks and other near-cash items shall be held by such Grantor in trust for
the Paying Agent and the Lenders, segregated from other funds of such
Grantor, and shall, forthwith upon receipt by such Grantor, be turned over
to the Paying Agent in the exact form received by such Grantor (duly
indorsed by such Grantor to the Paying Agent, if required). All Proceeds
received by the Paying Agent hereunder shall be held by the Paying Agent in
a Collateral Account maintained under its sole dominion and control. All
Proceeds while held by the Paying Agent in a Collateral Account (or by such
Grantor in trust for the Paying Agent and the Lenders) shall continue to be
held as collateral security for all the Obligations and shall not
constitute payment thereof until applied as provided in Section 6.5.
6.5 Application of Proceeds. At such intervals as may be
agreed upon by the Borrower and the Paying Agent, or, if an Event of
Default shall have occurred and be continuing, at any time at the Paying
Agent's election, the Paying Agent may apply all or any part of Proceeds
constituting Collateral, whether or not held in any Collateral Account, in
payment of the Obligations in such order as the Paying Agent may elect, and
any part of such funds which the Paying Agent elects not so to apply and
deems not required as collateral security for the Obligations shall be paid
over from time to time by the Paying Agent to the Borrower or to whomsoever
may be lawfully entitled to receive the same. Any balance of such Proceeds
remaining after the Obligations shall have been Fully Satisfied shall be
paid over to the Borrower or to whomsoever may be lawfully entitled to
receive the same.
6.6 Code and Other Remedies. If an Event of Default shall
occur and be continuing, the Paying Agent, on behalf of the Lenders, may
exercise, in addition to all other rights and remedies granted to them in
this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a
secured party under the New York UCC or any other applicable law. Without
limiting the generality of the foregoing, the Paying Agent, without demand
of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to
or upon any Grantor or any other Person (all and each of which demands,
defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign,
give option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, at any exchange,
broker's board or office of the Paying Agent or any Lender or elsewhere
upon such terms and conditions as it may deem advisable and at such prices
as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Paying Agent or any Lender shall have
the right upon any such public sale or sales, and, to the extent permitted
by law, upon any such private sale or sales, to purchase the whole or any
part of the Collateral so sold, free of any right or equity of redemption
in any Grantor, which right or equity is hereby waived and released. Each
Grantor further agrees, at the Paying Agent's request, to assemble the
Collateral and make it available to the Paying Agent at places which the
Paying Agent shall reasonably select, whether at such Grantor's premises or
elsewhere. The Paying Agent shall apply the net proceeds of any action
taken by it pursuant to this Section 6.6, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or
incidental to the care or safekeeping of any of the Collateral or in any
way relating to the Collateral or the rights of the Paying Agent and the
Lenders hereunder, including, without limitation, reasonable attorneys'
fees and disbursements, to the payment in whole or in part of the
Obligations, in such order as the Paying Agent may elect, and only after
such application and after the payment by the Paying Agent of any other
amount required by any provision of law, including, without limitation,
Section 9-504(1)(c) of the New York UCC, need the Paying Agent account for
the surplus, if any, to any Grantor. To the extent permitted by applicable
law, each Grantor waives all claims, damages and demands it may acquire
against the Paying Agent or any Lender arising out of the exercise by them
of any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least 10 days before such sale or
other disposition.
6.7 Registration Rights. (a) If the Paying Agent shall
determine to exercise its right to sell any or all of the Pledged Stock
pursuant to Section 6.6, and if in the opinion of the Paying Agent it is
necessary or advisable to have the Pledged Stock, or that portion thereof
to be sold, registered under the provisions of the Securities Act, the
relevant Grantor will cause the Issuer thereof to (i) execute and deliver,
and cause the directors and officers of such Issuer to execute and deliver,
all such instruments and documents, and do or cause to be done all such
other acts as may be, in the reasonable opinion of the Paying Agent,
necessary or advisable to register the Pledged Stock, or that portion
thereof to be sold, under the provisions of the Securities Act, (ii) use
its best efforts to cause the registration statement relating thereto to
become effective and to remain effective for a period of one year from the
date of the first public offering of the Pledged Stock, or that portion
thereof to be sold, and (iii) make all amendments thereto and/or to the
related prospectus which, in the reasonable opinion of the Paying Agent,
are necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. Each Grantor agrees to cause such Issuer to
comply with the provisions of the securities or "Blue Sky" laws of any and
all jurisdictions which the Paying Agent shall designate and to make
available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) which will satisfy the provisions of
Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Paying Agent may be
unable to effect a public sale of any or all the Pledged Stock, by
reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be
compelled to resort to one or more private sales thereof to a
restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or
resale thereof. Each Grantor acknowledges and agrees that any such
private sale may result in prices and other terms less favorable
than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed
to have been made in a commercially reasonable manner. The Paying
Agent shall be under no obligation to delay a sale of any of the
Pledged Stock for the period of time necessary to permit the
Issuer thereof to register such securities for public sale under
the Securities Act, or under applicable state securities laws,
even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make
such sale or sales of all or any portion of the Pledged Stock
pursuant to this Section 6.7 valid and binding and in compliance
with any and all other applicable Requirements of Law. Each
Grantor further agrees that a breach of any of the covenants
contained in this Section 6.7 will cause irreparable injury to the
Paying Agent and the Lenders, that the Paying Agent and the
Lenders have no adequate remedy at law in respect of such breach
and, as a consequence, that each and every covenant contained in
this Section 6.7 shall be specifically enforceable against such
Grantor, and such Grantor hereby waives and agrees not to assert
any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has
occurred under the Credit Agreement.
6.8 Waiver; Deficiency. Each Grantor waives and agrees not
to assert any rights or privileges which it may acquire under Section 9-112
of the New York UCC. Each Grantor shall remain liable for any deficiency if
the proceeds of any sale or other disposition of the Collateral are
insufficient to pay its Obligations and the reasonable fees and
disbursements of any attorneys employed by the Paying Agent or any Lender
to collect such deficiency.
Section 7. THE PAYING AGENT
7.1 Paying Agent's Appointment as Attorney-in-Fact, etc. (a)
Each Grantor hereby irrevocably constitutes and appoints the Paying Agent
and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority
in the place and stead of such Grantor and in the name of such Grantor or
in its own name, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement, and, without limiting the
generality of the foregoing, each Grantor hereby gives the Paying Agent the
power and right, on behalf of such Grantor, without notice to or assent by
such Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or
otherwise, take possession of and indorse and collect any
checks, drafts, notes, acceptances or other instruments for
the payment of moneys due under any Receivable or Contract
or with respect to any other Collateral and file any claim
or take any other action or proceeding in any court of law
or equity or otherwise deemed appropriate by the Paying
Agent for the purpose of collecting any and all such moneys
due under any Receivable or Contract or with respect to any
other Collateral whenever payable;
(ii) in the case of any Intellectual Property,
execute and deliver, and have recorded, any and all
agreements, instruments, documents and papers as the Paying
Agent may request to evidence the Paying Agent's and the
Lenders' security interest in such Intellectual Property and
the goodwill and general intangibles of such Grantor
relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or
placed on or threatened against the Collateral, effect any
repairs or any insurance called for by the terms of this
Agreement and pay all or any part of the premiums therefor
and the costs thereof;
(iv) execute, in connection with any sale provided
for in Section 6.6 or 6.7, any indorsements, assignments or
other instruments of conveyance or transfer with respect to
the Collateral; and
(v) (1) direct any party liable for any payment under
any of the Collateral to make payment of any and all moneys
due or to become due thereunder directly to the Paying Agent
or as the Paying Agent shall direct; (2) ask or demand for,
collect, and receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any
time in respect of or arising out of any Collateral; (3)
sign and indorse any invoices, freight or express bills,
bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and
other documents in connection with any of the Collateral;
(4) commence and prosecute any suits, actions or proceedings
at law or in equity in any court of competent jurisdiction
to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; (5)
defend any suit, action or proceeding brought against such
Grantor with respect to any Collateral; (6) settle,
compromise or adjust any such suit, action or proceeding
and, in connection therewith, give such discharges or
releases as the Paying Agent may deem appropriate; (7)
assign any Copyright, Patent or Trademark (along with the
goodwill of the business to which any such Copyright, Patent
or Trademark pertains), throughout the world for such term
or terms, on such conditions, and in such manner, as the
Paying Agent shall in its sole discretion determine; and (8)
generally, sell, transfer, pledge and make any agreement
with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Paying Agent were the
absolute owner thereof for all purposes, and do, at the
Paying Agent's option and such Grantor's expense, at any
time, or from time to time, all acts and things which the
Paying Agent deems necessary to protect, preserve or realize
upon the Collateral and the Paying Agent's and the Lenders'
security interests therein and to effect the intent of this
Agreement, all as fully and effectively as such Grantor
might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Paying Agent agrees that it will not exercise any rights under the power of
attorney provided for in this Section 7.1(a) unless an Event of Default
shall have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of
its agreements contained herein, the Paying Agent, at its option,
but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance, with such agreement.
(c) The reasonable expenses of the Paying Agent incurred in
connection with actions undertaken as provided in this Section
7.1, together with interest thereon at a rate per annum equal to
the highest rate per annum at which interest would then be payable
on any category of past due ABR Loans under the Credit Agreement,
from the date of payment by the Paying Agent to the date
reimbursed by the relevant Grantor, shall be payable by such
Grantor to the Paying Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys
shall lawfully do or cause to be done by virtue hereof. All
powers, authorizations and agencies contained in this Agreement
are coupled with an interest and are irrevocable until this
Agreement is terminated and the security interests created hereby
are released.
7.2 Duty of Paying Agent. The Paying Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Paying Agent
deals with similar property for its own account. Neither the Paying Agent,
any Lender nor any of their respective officers, directors, employees or
agents shall be liable for failure to demand, collect or realize upon any
of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request
of any Grantor or any other Person or to take any other action whatsoever
with regard to the Collateral or any part thereof. The powers conferred on
the Paying Agent and the Lenders hereunder are solely to protect the Paying
Agent's and the Lenders' interests in the Collateral and shall not impose
any duty upon the Paying Agent or any Lender to exercise any such powers.
The Paying Agent and the Lenders shall be accountable only for amounts that
they actually receive as a result of the exercise of such powers, and
neither they nor any of their officers, directors, employees or agents
shall be responsible to any Grantor for any act or failure to act
hereunder, except for their own gross negligence or willful misconduct.
7.3 Execution of Financing Statements. Pursuant to Section
9-402 of the New York UCC and any other applicable law, each Grantor
authorizes the Paying Agent to file or record financing statements and
other filing or recording documents or instruments with respect to the
Collateral without the signature of such Grantor in such form and in such
offices as the Paying Agent determines appropriate to perfect the security
interests of the Paying Agent under this Agreement. A photographic or other
reproduction of this Agreement shall be sufficient as a financing statement
or other filing or recording document or instrument for filing or recording
in any jurisdiction.
7.4 Authority of Paying Agent. Each Grantor acknowledges
that the rights and responsibilities of the Paying Agent under this
Agreement with respect to any action taken by the Paying Agent or the
exercise or non-exercise by the Paying Agent of any option, voting right,
request, judgment or other right or remedy provided for herein or resulting
or arising out of this Agreement shall, as between the Paying Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements
with respect thereto as may exist from time to time among them, but, as
between the Paying Agent and the Grantors, the Paying Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and
valid authority so to act or refrain from acting, and no Grantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
Section 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions
of this Agreement may be waived, amended, supplemented or otherwise
modified except in accordance with Section 10.1 of the Credit Agreement.
8.2 Notices. All notices, requests and demands to or upon
the Paying Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 10.2 of the Credit Agreement; provided that any
such notice, request or demand to or upon any Guarantor shall be addressed
to such Guarantor at its notice address set forth on Schedule 1.
8.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Paying Agent nor any Lender shall by any act (except by a
written instrument pursuant to Section 8.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor
any delay in exercising, on the part of the Paying Agent or any Lender, any
right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Paying Agent or any Lender of
any right or remedy hereunder on any one occasion shall not be construed as
a bar to any right or remedy which the Paying Agent or such Lender would
otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification. (a) Each
Guarantor agrees to pay or reimburse each Lender and the Paying Agent for
all its reasonable costs and expenses incurred in collecting against such
Guarantor under the guarantee contained in Section 2 or otherwise enforcing
or preserving any rights under this Agreement and the other Loan Documents
to which such Guarantor is a party, including, without limitation, the
reasonable fees and disbursements of counsel (including the allocated fees
and expenses of in-house counsel) to each Lender and of counsel to the
Paying Agent.
(b) Each Guarantor agrees to pay, and to save the Paying
Agent and the Lenders harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes which may be payable or
determined to be payable with respect to any of the Collateral or
in connection with any of the transactions contemplated by this
Agreement.
(c) Each Guarantor agrees to pay, and to save the Paying
Agent and the Lenders harmless from, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement to the extent the
Borrower would be required to do so pursuant to Section 10.5 of
the Credit Agreement.
(d) The agreements in this Section 8.4 shall survive
repayment of the Obligations and all other amounts payable under
the Credit Agreement and the other Loan Documents.
8.5 Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of each Grantor and shall inure to the
benefit of the Paying Agent and the Lenders and their successors and
assigns; provided that no Grantor may assign, transfer or delegate any of
its rights or obligations under this Agreement without the prior written
consent of the Paying Agent.
8.6 Set-Off. Each Grantor hereby irrevocably authorizes the
Paying Agent and each Lender at any time and from time to time while an
Event of Default pursuant to Section 8.1(a) of the Credit Agreement shall
have occurred and be continuing, without notice to such Grantor or any
other Grantor, any such notice being expressly waived by each Grantor, to
set-off and appropriate and apply any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any
time held or owing by the Paying Agent or such Lender to or for the credit
or the account of such Grantor, or any part thereof in such amounts as the
Paying Agent or such Lender may elect, against and on account of the
obligations and liabilities of such Grantor to the Paying Agent or such
Lender hereunder and claims of every nature and description of the Paying
Agent or such Lender against such Grantor, in any currency, whether arising
hereunder, under the Credit Agreement, any other Loan Document or
otherwise, as the Paying Agent or such Lender may elect, whether or not the
Paying Agent or any Lender has made any demand for payment and although
such obligations, liabilities and claims may be contingent or unmatured.
The Paying Agent and each Lender shall notify such Grantor promptly of any
such set-off and the application made by the Paying Agent or such Lender of
the proceeds thereof, provided that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of the
Paying Agent and each Lender under this Section 8.6 are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which the Paying Agent or such Lender may have.
8.7 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
8.9 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
8.10 Integration
This Agreement and the other Loan Documents represent the
agreement of the Grantors, the Paying Agent and the Lenders with respect to
the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Paying Agent or any
Lender relative to subject matter hereof and thereof not expressly set
forth or referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
8.12 Submission To Jurisdiction; Waivers. Each Grantor
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any
thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in
any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail),
postage prepaid, to such Grantor at its address referred to in
Section 8.2 or at such other address of which the Paying Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.
8.13 Acknowledgements. Each Grantor hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan
Documents to which it is a party;
(b) neither the Paying Agent nor any Lender has any
fiduciary relationship with or duty to any Grantor arising out of
or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Grantors, on the one
hand, and the Paying Agent and Lenders, on the other hand, in
connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Grantors and
the Lenders.
8.14 Additional Grantors. Each Subsidiary of the Borrower
that is required to become a party to this Agreement pursuant to Section
6.9 of the Credit Agreement shall become a Grantor for all purposes of this
Agreement upon execution and delivery by such Subsidiary of an Assumption
Agreement in the form of Annex 1 hereto.
8.15 Releases. (a) At such time as the Obligations shall
have been Fully Satisfied, the Collateral shall be released from the Liens
created hereby, and this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Paying Agent and each
Grantor hereunder shall terminate, all without delivery of any instrument
or performance of any act by any party, and all rights to the Collateral
shall revert to the Grantors. At the request and sole expense of any
Grantor following any such termination, the Paying Agent shall deliver to
such Grantor any Collateral held by the Paying Agent hereunder, and execute
and deliver to such Grantor such documents as such Grantor shall reasonably
request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Grantor in a transaction permitted by
the Credit Agreement, then the Paying Agent, at the request and
sole expense of such Grantor, shall execute and deliver to such
Grantor all releases or other documents reasonably necessary or
desirable for the release of the Liens created hereby on such
Collateral. At the request and sole expense of the Borrower, a
Subsidiary Guarantor shall be released from its obligations
hereunder in the event that all the Capital Stock of such
Subsidiary Guarantor shall be sold, transferred or otherwise
disposed of in a transaction permitted by the Credit Agreement.
8.16 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
[Rest of page left intentionally blank]
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of
the date first above written.
PNEUMO ABEX CORPORATION
By: /s/ Xxxxx X. Xxxxx
_____________________________
Name: Xxxxx X. Xxxxx
Title: Senior Vice President-
Finance, Treasurer and
Secretary
PVI ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
_____________________________
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
Chief Financial Officer
FLAVORS HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxx
_____________________________
Name: Xxxxx X. Xxxxx
Title: Senior Vice President-
Finance, Treasurer and
Secretary
CONCORD PACIFIC CORPORATION
By: /s/ Xxxxx X. Xxxxx
_____________________________
Name: Xxxxx X. Xxxxx
Title: Senior Vice President-
Finance, Treasurer and
Secretary
EVD HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxx
_____________________________
Name: Xxxxx X. Xxxxx
Title: Senior Vice President-
Finance, Treasurer and
Secretary
Schedule 1
NOTICE ADDRESSES OF GUARANTORS
Schedule 2
DESCRIPTION OF INVESTMENT PROPERTY
Pledged Stock:
Issuer Class of Stock Stock Certificate No. No. of Shares
------------------------------- --------------------- ---------------------------- -------------------------------
Pledged Notes:
Issuer Payee Principal Amount
-------------------------------- ----------------------------- -------------------------------
Schedule 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
[List each office where a financing statement is to be filed]
Patent and Trademark Filings
[List all filings]
Actions with respect to Pledged Stock
Other Actions
[Describe other actions to be taken]
Schedule 4
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Grantor Jurisdiction of Location of Chief
Organization Executive Office
Schedule 5
LOCATIONS OF INVENTORY AND EQUIPMENT
Grantor Locations
Schedule 6
COPYRIGHTS AND COPYRIGHT LICENSES
PATENTS AND PATENT LICENSES
TRADEMARKS AND TRADEMARK LICENSES
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Guarantee and Collateral Agreement dated as of April 17, 2001 (the
"Agreement"), made by the Grantors parties thereto for the benefit of The
Chase Manhattan Bank, as Paying Agent. The undersigned agrees for the
benefit of the Paying Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the
Agreement and will comply with such terms insofar as such terms are
applicable to the undersigned.
2. The undersigned will notify the Paying Agent promptly in
writing of the occurrence of any of the events described in Section 5.7(a)
of the Agreement.
3. The terms of Sections 6.3(c) and 6.7 of the Agreement
shall apply to it, mutatis mutandis, with respect to all actions that may
be required of it pursuant to Section 6.3(c) or 6.7 of the Agreement.
[NAME OF ISSUER]
By:_________________________
Name:
Title:
Address for Notices:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Fax:
Annex 1 to
Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of April [__], 2001 made by
[_________] (the "Additional Grantor"), in favor of The Chase Manhattan
Bank, as Paying Agent (in such capacity, the "Paying Agent") for the banks
and other financial institutions or entities (the "Lenders") parties to the
Credit Agreement referred to below. All capitalized terms not defined
herein shall have the meaning ascribed to them in such Credit Agreement.
W I T N E S S E T H :
WHEREAS, FLAVORS HOLDINGS INC. ("Holdings"), PNEUMO ABEX
CORPORATION (the "Borrower"), the Lenders, the Documentation Agent named
therein and the Paying Agent have entered into a Credit Agreement, dated as
of April 17, 2001(as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the
Borrower and certain of its Affiliates (other than the Additional Grantor)
have entered into the Guarantee and Collateral Agreement, dated as of April
17, 2001 (as amended, supplemented or otherwise modified from time to time,
the "Guarantee and Collateral Agreement") in favor of the Paying Agent for
the benefit of the Lenders;
WHEREAS, the Credit Agreement requires the Additional
Grantor to become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and
deliver this Assumption Agreement in order to become a party to the
Guarantee and Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and
delivering this Assumption Agreement, the Additional Grantor, as provided
in Section 8.14 of the Guarantee and Collateral Agreement, hereby becomes a
party to the Guarantee and Collateral Agreement as a Grantor thereunder
with the same force and effect as if originally named therein as a Grantor
and, without limiting the generality of the foregoing, hereby expressly
assumes all obligations and liabilities of a Grantor thereunder. The
information set forth in Annex 1-A hereto is hereby added to the
information set forth in the Schedules to the Guarantee and Collateral
Agreement. The Additional Grantor hereby represents and warrants that each
of the representations and warranties contained in Section 4 of the
Guarantee and Collateral Agreement is true and correct in all material
respects on and as the date hereof (after giving effect to this Assumption
Agreement) as if made on and as of such date.
2 Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK.
[Rest of page left intentionally blank]
IN WITNESS WHEREOF, the undersigned has caused this
Assumption Agreement to be duly executed and delivered as of the date first
above written.
[ADDITIONAL GRANTOR]
By:_______________________
Name:
Title:
Annex 1-A to
Assumption Agreement
Supplement to Schedule 1
Supplement to Schedule 2
Supplement to Schedule 3
Supplement to Schedule 4
Supplement to Schedule 5
Supplement to Schedule 6
