Exhibit 10.66
-------------
SECURITY AGREEMENT
among
COINMACH CORPORATION
and
BANKERS TRUST COMPANY,
as Collateral Agent
Dated as of January 8, 1997
TABLE OF CONTENTS
Page
ARTICLE I
SECURITY INTERESTS.................. 2
Section 1.1. Grant of Security Interests.................. 2
Section 1.2. Power of Attorney............................ 3
ARTICLE II
GENERAL REPRESENTATIONS,
WARRANTIES AND COVENANTS................... 3
Section 2.1. Necessary Filings............................ 3
Section 2.2. No Liens..................................... 4
Section 2.3. Other Financing Statements................... 4
Section 2.4. Chief Executive Office; Records.............. 4
Section 2.5. Location of Inventory and Equipment.......... 5
Section 2.6. Recourse..................................... 5
Section 2.7. Trade Names; Change of Name.................. 6
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS...... 6
Section 3.1. Additional Representations and Warranties.... 6
Section 3.2. Maintenance of Records....................... 7
Section 3.3. Direction to Account Debtors; Contracting
Parties; etc............................... 7
Section 3.4. Modification of Terms; etc................... 8
Section 3.5. Collection................................... 8
Section 3.6. Instruments.................................. 9
Section 3.7. Further Actions.............................. 9
ARTICLE IV
SPECIAL PROVISIONS CONCERNING MARKS......... 9
Section 4.1. Additional Representations and Warranties.... 9
Section 4.2. Licenses and Assignments..................... 10
-i-
Page
----
Section 4.3. Infringements................................ 10
Section 4.4. Preservation of Marks........................ 10
Section 4.5. Maintenance of Registration.................. 10
Section 4.6. Future Registered Marks...................... 10
Section 4.7. Remedies..................................... 11
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS AND COPYRIGHTS................ 11
Section 5.1. Additional Representations and Warranties.... 11
Section 5.2. Licenses and Assignments..................... 12
Section 5.3. Infringements................................ 12
Section 5.4. Maintenance of Patents....................... 12
Section 5.5. Prosecution of Patent Application............ 12
Section 5.6. Other Patents and Copyrights................. 13
Section 5.7. Remedies..................................... 13
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL......... 13
Section 6.1. Protection of Collateral Agent's Security.... 13
Section 6.2. Warehouse Receipts Non-negotiable............ 14
Section 6.3. Further Actions.............................. 14
Section 6.4. Financing Statements......................... 14
ARTICLE VII
REMEDIES UPON OCCURRENCE OF
EVENT OF DEFAULT................... 15
Section 7.1. Remedies; Obtaining the Collateral Upon
Default.................................... 15
Section 7.2. Remedies; Disposition of the Collateral...... 16
Section 7.3. Waiver of Claims............................. 17
Section 7.4. Application of Proceeds...................... 18
Section 7.5. Remedies Cumulative.......................... 21
Section 7.6. Discontinuance of Proceedings................ 21
-ii-
Page
----
ARTICLE VIII
INDEMNITY...................... 22
Section 8.1. Indemnity.................................... 22
Section 8.2. Indemnity Obligations Secured by Collateral;
Survival................................... 23
ARTICLE IX
DEFINITIONS..................... 24
ARTICLE X
MISCELLANEOUS.................... 29
Section 10.1. Notices...................................... 29
Section 10.2. Waiver; Amendment............................ 31
Section 10.3. Obligations Absolute......................... 31
Section 10.4. Successors and Assigns....................... 31
Section 10.5. Headings Descriptive......................... 32
Section 10.6. Severability................................. 32
Section 10.7. GOVERNING LAW................................ 32
Section 10.8. Pledgor's Duties............................. 32
Section 10.9. Termination; Release......................... 32
Section 10.10. Counterparts................................. 33
Section 10.11. The Collateral Agent......................... 33
ANNEX A Schedule of Permitted Filings
ANNEX B Schedule of Record Locations
ANNEX C Schedule of Inventory and Equipment Locations
ANNEX D Schedule of Trade, Fictitious and Other Names
ANNEX E Schedule of Marks
ANNEX F Schedule of License Agreements and Assignments
ANNEX G Schedule of Patents and Applications
ANNEX H Schedule of Copyrights and Applications
ANNEX I Assignments of Security Interest in United States
Trademarks and Patents
ANNEX J Assignment of Security Interest in United States
Copyrights
-iii-
SECURITY AGREEMENT
------------------
SECURITY AGREEMENT (as amended, modified or supplemented from time to
time, this "Agreement"), dated as of January 8, 1997, by COINMACH CORPORATION
(the "Pledgor") a Delaware corporation having an office at 00 Xxxxxx Xxxx,
Xxxxxx, Xxx Xxxx 00000, in favor of BANKERS TRUST COMPANY, as Collateral Agent
(the "Collateral Agent") for the benefit of (x) the Banks, the Administrative
Agent (as hereinafter defined), the Syndication Agent (as hereinafter defined),
the Documentation Agent (as hereinafter defined) and the Collateral Agent under,
and any other lenders from time to time party to, the Credit Agreement
hereinafter referred to (such Banks, the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Collateral Agent and such other lenders, if
any, are hereinafter called the "Bank Creditors") and (y) if one or more Banks
(or any Affiliate thereof) enter into one or more (i) interest rate protection
agreements (including, without limitation, interest rate swaps, caps, floors,
collars and similar agreements), (ii) foreign exchange contracts, currency swap
agreements or other similar agreements or arrangements designed to protect
against the fluctuations in currency values and/or (iii) other types of hedging
agreements from time to time (collectively, the "Interest Rate Protection or
Other Hedging Agreements") with, or guaranteed by, the Pledgor, any such Bank or
Banks or any Affiliate of such Bank or Banks (even if the respective Bank
subsequently ceases to be a Bank under the Credit Agreement for any reason) so
long as any such Bank or Affiliate participates in the extension of such
Interest Rate Protection or Other Hedging Agreements and their subsequent
assigns, if any (collectively, the "Other Creditors"; together with the Bank
Creditors, the "Secured Creditors"). Except as otherwise defined herein, terms
used herein and defined in the Credit Agreement shall be used herein as so
defined.
R E C I T A L S :
---------------
1. Coinmach Laundry Corporation, the Pledgor, the lenders (the
"Banks") from time to time party thereto, Bankers Trust Company, as
Administrative Agent (together with any successor, the "Administrative Agent"),
First Union National Bank of North Carolina, as Syndication Agent (together with
any successor, the "Syndication Agent") and Xxxxxx Commercial Paper, Inc., as
Documentation Agent (together with any successor, the "Documentation Agent")have
entered into a Credit Agreement, dated as of the date hereof, providing for the
making of Loans and the issuance of, and participation in, Letters of Credit as
contemplated therein (such agreement, as amended, modified, extended, renewed,
replaced, restated or supplemented from time to time, and including any
agreement extending the maturity of, or
Page 2
restructuring all or any portion of the Indebtedness under such agreement or any
successor agreement, the "Credit Agreement").
2. The Pledgor may at any time and from time to time enter into, or
guarantee obligations of its Subsidiaries under, one or more Interest Rate
Protection or Other Hedging Agreements with one or more Other Creditors.
3. It is a condition to each of the above-described extensions of
credit to the Pledgor that the Pledgor shall have executed and delivered this
Agreement.
4. The Pledgor desires to enter into this Agreement in order to
satisfy the condition described in the preceding paragraph.
A G R E E M E N T :
-----------------
NOW, THEREFORE, in consideration of the extensions of credit to be
made to the Pledgor and other benefits accruing to the Pledgor, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor hereby makes the
following representations and warranties to the Collateral Agent for the benefit
of the Secured Creditors and hereby covenants and agrees with the Collateral
Agent for the benefit of the Secured Creditors as follows:
ARTICLE I
SECURITY INTERESTS
Section 1.1. Grant of Security Interests. (a) As security for the
---------------------------
prompt and complete payment and performance when due of all of the Obligations,
the Pledgor does hereby collaterally assign and transfer unto the Collateral
Agent, and does hereby grant to the Collateral Agent for the benefit of the
Secured Creditors, a continuing security interest of first priority (subject to
Liens evidenced by Permitted Filings and other Permitted Liens) in, all of the
right, title and interest of the Pledgor in, to and under all of the following,
whether now existing or hereafter from time to time acquired: (i) each and
every Receivable, (ii) all Contracts, together with all Contract Rights arising
thereunder, (iii) all Inventory, (iv) the Cash Collateral Account established
for the Pledgor and all monies, securities and instruments deposited or required
to be deposited in such Cash Collateral Account, (v) all Equipment, (vi) all
Marks, together with the registrations and right to all renewals thereof, and
the goodwill of the business of the Pledgor
Page 3
symbolized by the Marks, (vii) all Patents and Copyrights, and all reissues,
renewals or extensions thereof, (viii) all computer programs of the Pledgor and
all intellectual property rights therein and all other proprietary information
of the Pledgor, including, but not limited to, Trade Secrets, (ix) all other
Goods, General Intangibles, Chattel Paper, Documents and Instruments (other than
the Pledged Securities), and (x) all Proceeds and products of any and all of the
foregoing (all of the above, collectively, the "Collateral").
(b) The security interests of the Collateral Agent under this
Agreement extend to all Collateral of the kind which is the subject of this
Agreement which the Pledgor may acquire at any time during the continuation of
this Agreement.
Section 1.2. Power of Attorney. The Pledgor hereby constitutes and
-----------------
appoints the Collateral Agent its true and lawful attorney, irrevocably, with
full power after the occurrence of and during the continuance of an Event of
Default (in the name of the Pledgor or as otherwise provided herein), in the
Collateral Agent's reasonable discretion, to take any action and to execute any
instrument which the Collateral Agent may reasonably deem necessary or advisable
to accomplish the purposes of this Agreement, which appointment as attorney is
coupled with an interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
The Pledgor represents, warrants and covenants, as of the date hereof,
which representations, warranties and covenants shall survive execution and
delivery of this Agreement, as follows:
Section 2.1. Necessary Filings. All filings, registrations and
-----------------
recordings necessary or appropriate to create, preserve, protect and perfect the
security interest granted by the Pledgor to the Collateral Agent hereby in
respect of the Collateral, to the knowledge of the Pledgor, have been filed or
concurrently herewith are being filed and the security interest granted to the
Collateral Agent pursuant to this Agreement in and to Collateral constitutes or
shall constitute upon the appropriate filing a perfected security interest
therein prior to the rights of all other Persons therein and subject to no other
Liens (except that the Collateral may be subject to the security interests
evidenced by the financing statements disclosed on Schedule A hereto, but only
----------
to the respective date, if any, set forth on Schedule A (the "Permitted
----------
Filings") and to any other
Page 4
Permitted Liens, and is or shall be entitled to all the rights, priorities and
benefits afforded by the Uniform Commercial Code to the extent complied with or
other relevant law as enacted in any relevant jurisdiction to perfected security
interests.
Section 2.2. No Liens. The Pledgor is, and as to Collateral acquired
--------
by it from time to time after the date hereof the Pledgor will be, the owner of
all Collateral free from any Lien, security interest, encumbrance or other
right, title or interest of any Person (other than Liens created hereby,
Permitted Liens or Liens evidenced by the Permitted Filings), and the Pledgor
shall use its good faith efforts to defend the Collateral against all claims and
demands of all Persons at any time claiming the same or any interest therein
adverse to the Collateral Agent.
Section 2.3. Other Financing Statements. As of the date hereof,
--------------------------
there is no financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) on file or of record in any
relevant jurisdiction covering or purporting to cover any interest of any kind
in the Collateral except as disclosed in Schedule A hereto and as may be filed
----------
in connection with Permitted Liens and so long as any Commitment has not been
terminated or any Letter of Credit or Note remains outstanding or any of the
Obligations remain unpaid or any Interest Rate Protection or Other Hedging
Agreement remains in effect or any obligations are owed with respect thereto,
the Pledgor shall not execute or authorize to be filed in any public office any
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) or statements relating to the Collateral, except
financing statements filed or to be filed in respect of and covering the
security interests granted hereby by the Pledgor or in respect of the Permitted
Liens.
Section 2.4. Chief Executive Office; Records. As of the date hereof,
-------------------------------
the chief executive office of the Pledgor is located at the location indicated
on Schedule B hereto. The Pledgor will not move its chief executive office
----------
except to such new location as the Pledgor may establish in accordance with the
last sentence of this Section 2.4. The originals of all documents evidencing
all Receivables and Contract Rights and Trade Secrets of the Pledgor and the
only original books of account and records of the Pledgor relating thereto are,
and will continue to be, kept at the chief executive office of the Pledgor, at
such other locations shown on Schedule C hereto or at such new locations as the
----------
Pledgor may establish in accordance with the last sentence of this Section 2.4.
All Receivables and Contract Rights of the Pledgor are, and will continue to be,
maintained at, and controlled and directed (including, without
Page 5
limitation, for general accounting purposes) from, the office locations
described above. The Pledgor will not establish a new location for such offices
until (i) it shall have given to the Collateral Agent not less than 30 days'
prior written notice of its intention so to do, clearly describing such new
location and providing such other information in connection therewith as the
Collateral Agent may reasonably request, (ii) with respect to such new location,
it shall have taken all action to maintain the security interest of the
Collateral Agent in the Collateral intended to be granted and perfected hereby
at all times fully perfected and in full force and effect, and (iii) the
Collateral Agent shall have received reasonably satisfactory evidence that all
other actions (including, without limitation, the payment of all filing fees and
taxes, if any, payable in connection with such filings) have been taken, in
order to perfect (and maintain the perfection and priority of) the security
interest granted hereby.
Section 2.5. Location of Inventory and Equipment. All Inventory and
-----------------------------------
Equipment held on the date hereof by the Pledgor is located at one of the
locations shown on Schedule D hereto. The Pledgor agrees that all Inventory and
----------
Equipment now held or subsequently acquired by it shall be kept at (or shall be
in transport to) one of the locations shown on Schedule D hereto or such new
----------
location as the Pledgor may establish in accordance with the last sentence of
this Section 2.5. The Pledgor shall not establish a new location for Inventory
and Equipment until (i) it shall have given to the Collateral Agent not less
than 30 days' prior written notice of its intention so to do, clearly describing
such new location and providing such other information in connection therewith
as the Collateral Agent may request, (ii) with respect to such new location, it
shall have taken all action satisfactory to the Collateral Agent to maintain the
security interest of the Collateral Agent in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect, and
(iii) the Collateral Agent shall have received evidence that all other actions
(including, without limitation, the payment of all filing fees and taxes, if
any, payable in connection with such filings) have reasonably been taken, in
order to perfect (and maintain the perfection and priority of) the security
interest granted hereby.
Section 2.6. Recourse. This Agreement is made with full recourse to
--------
the Pledgor and pursuant to and upon all the warranties, representations,
covenants and agreements on the part of the Pledgor contained herein, in the
other Credit Documents, in the Interest Rate Protection or Other Hedging
Agreements and otherwise in writing in connection herewith or therewith.
Page 6
Section 2.7. Trade Names; Change of Name. The Pledgor does not have
---------------------------
or operate in any jurisdiction under, or in the preceding 12 months has not had
or has not operated in any jurisdiction under, any trade names, fictitious names
or other names (including, without limitation, any names of divisions or
operations) except its legal name and such other trade, fictitious or other
names as are listed on Schedule E hereto. The Pledgor shall not change its
----------
legal name or assume or operate in any jurisdiction under any trade, fictitious
or other name in any manner which might make any financing statement or
continuation statement filed in connection therewith seriously misleading within
the meaning of Section 9-402(7) of the UCC except those names listed on Schedule
--------
E hereto and new names (including, without limitation, any names of divisions or
-
operations) established in accordance with the last sentence of this Section
2.7. The Pledgor shall not assume or operate in any jurisdiction under any new
trade, fictitious or other name that would make any financing statement or
continuation statement filed in connection therewith, seriously misleading
within the meaning of Section 9-402(7) of the UCC until (i) it shall have given
to the Collateral Agent not less than 30 days' prior written notice of its
intention so to do, clearly describing such new name and the jurisdictions in
which such new name shall be used and providing such other information in
connection therewith as the Collateral Agent may reasonably request and (ii)
with respect to such new name, it shall have taken all reasonable action to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect.
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS
Section 3.1. Additional Representations and Warranties. As of the
-----------------------------------------
time when each of its Receivables arises, the Pledgor shall be deemed to have
represented and warranted that such Receivable, and all records, papers and
documents relating thereto (if any) are genuine and in all material respects
what they purport to be, and that all papers and documents (if any) relating
thereto to the actual knowledge of the Pledgor (i) will represent the genuine,
legal, valid and binding obligation of the account debtor evidencing
indebtedness unpaid and owed by the respective account debtor arising out of the
performance of labor or services or the sale or lease and delivery of the
merchandise listed therein, or both, (ii) will be the only original writings
evidencing and embodying such obligation of the account debtor named therein
(other than copies
Page 7
created for general accounting purposes), (iii) will evidence true and valid
obligations, enforceable in accordance with their respective terms and (iv) will
be in compliance and will conform in each case in all material respects with all
applicable federal, state and local laws and applicable laws of any relevant
foreign jurisdiction.
Section 3.2. Maintenance of Records. The Pledgor will keep and
----------------------
maintain at its own cost and expense satisfactory and complete records of its
Receivables and Contracts, including, but not limited to, the originals or
copies of all documentation (including each Contract) with respect thereto,
records of all payments received, all credits granted thereon, all merchandise
returned and all other dealings therewith, and the Pledgor will make the same
available on the Pledgor's premises to the Collateral Agent for inspection, at
the Pledgor's own cost and expense, at any and all reasonable times; provided,
--------
however, if no Event of Default has occurred and is then continuing, Collateral
-------
Agent shall give the Pledgor reasonable prior written notice of any such
inspection. Upon the occurrence and during the continuance of an Event of
Default and upon the reasonable request of the Collateral Agent, the Pledgor
shall, at its own cost and expense, deliver all tangible evidence of its
Receivables and Contract Rights (including, without limitation, all documents
evidencing the Receivables and all Contracts) and such books and records to the
Collateral Agent or to its representatives (copies of which evidence and books
and records may be retained by the Pledgor). Upon the occurrence and during the
continuance of an Event of Default and the delivery by the Collateral Agent of
notice to the Pledgor in accordance with Article X of the Credit Agreement, if
the Collateral Agent so directs, the Pledgor shall legend, in form and manner
reasonably satisfactory to the Collateral Agent, its Receivables and the
Contracts, as well as all books, records and documents of the Pledgor evidencing
or pertaining to such Receivables and Contracts with an appropriate reference to
the fact that such Receivables and Contracts have been assigned to the
Collateral Agent and that the Collateral Agent has a security interest therein.
Section 3.3. Direction to Account Debtors; Contracting Parties; etc.
------------------------------------------------------
Upon the occurrence and during the continuance of an Event of Default and
delivery of notice to the Pledgor in accordance with Article X of the Credit
Agreement, and if the Collateral Agent so directs the Pledgor, to the extent
permitted by applicable law, the Pledgor agrees (x) to cause all payments on
account of the Receivables and Contracts to be made directly to the Cash
Collateral Account, (y) that the Collateral Agent may, at its option, directly
notify the obligors with respect to any Receivables and/or under any Contracts
to make payments with
Page 8
respect thereto as provided in preceding clause (x), and (z) that the Collateral
Agent may enforce collection of any such Receivables and Contracts and may
adjust, settle or compromise the amount of payment thereof, in the same manner
and to the same extent as the Pledgor. Without notice to or assent by the
Pledgor, the Collateral Agent may apply any or all amounts then in, or
thereafter deposited in, the Cash Collateral Account which application shall be
effected in the manner provided in Section 7.4 of this Agreement. The
reasonable costs and expenses (including reasonable attorneys' fees) of
collection, whether incurred by the Pledgor or the Collateral Agent, shall be
borne by the Pledgor.
Section 3.4. Modification of Terms; etc. Except as otherwise
---------------------------
provided in the Credit Agreement, the Pledgor shall not rescind or cancel any
indebtedness evidenced by any Receivable or under any Contract, or modify any
term relating to such indebtedness or make any adjustment with respect thereto,
or extend or renew the same, or compromise or settle any material dispute,
claim, suit or legal proceeding relating thereto, or sell any Receivable or
Contract, or interest therein, without the prior written consent of the
Collateral Agent (not to be unreasonably withheld), except as permitted by
Section 3.5. Except as otherwise provided in the Credit Agreement, the Pledgor
will duly fulfill all obligations on its part to be fulfilled under or in
connection with the Receivables and Contracts and will do nothing to impair in
any material respect the rights of the Collateral Agent in the Receivables or
Contracts.
Section 3.5. Collection. The Pledgor shall endeavor to cause to be
----------
collected from the account debtor named in each of its Receivables or obligor
under any of its Contract, as and when due (including, without limitation,
amounts which are delinquent, such amounts to be collected in accordance with
generally accepted lawful collection procedures) any and all amounts owing under
or on account of such Receivable or Contract, and apply forthwith upon receipt
thereof all such amounts as are so collected to the outstanding balance of such
Receivable or under such Contract, except that, unless an Event of Default has
occurred and is continuing and the Collateral Agent has delivered notice to the
Pledgor in accordance with Article X of the Credit Agreement, the Pledgor may
allow in the ordinary course of business as adjustments to amounts owing under
its Receivables and Contracts (i) an extension or renewal of the time or times
of payment, or settlement for less than the total unpaid balance, as the Pledgor
finds appropriate in accordance with sound business judgment and (ii) a refund
or credit due as a result of returned or damaged merchandise or improperly
performed services. The reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees) of collection, whether incurred by
Page 9
the Pledgor or the Collateral Agent, shall be borne by the Pledgor.
Section 3.6. Instruments. If the Pledgor owns or acquires any
-----------
Instrument constituting Collateral in an amount in excess of $250,000, the
Pledgor will within ten days notify the Collateral Agent thereof, and upon
request by the Collateral Agent will promptly deliver such Instrument to the
Collateral Agent appropriately endorsed to the order of the Collateral Agent as
further security hereunder.
Section 3.7. Further Actions. The Pledgor will, at its own expense,
---------------
make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent
from time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to its Receivables, Contracts, Instruments and other property or
rights covered by the security interest hereby granted, as the Collateral Agent
may reasonably require.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING MARKS
Section 4.1. Additional Representations and Warranties. The Pledgor
-----------------------------------------
represents and warrants that, as of the date hereof, it is the true and lawful
exclusive owner of its Marks listed in Schedule F hereto and that said listed
----------
Marks include all the United States federal registrations or applications
registered in the United States Patent and Trademark Office. The Pledgor
represents and warrants that, to the best of its knowledge, it owns or is
licensed to use or is not prohibited from using all Marks that it uses. The
Pledgor further warrants that it is aware of no third party claim that any
aspect of the Pledgor's present or contemplated business operations infringes or
will infringe any Xxxx. The Pledgor represents and warrants that it is the
owner of record of all United States registrations and applications listed in
Schedule F hereto and that said registrations are valid, subsisting, have not
----------
been cancelled and that the Pledgor is not aware of any third-party claim that
any of said registrations is invalid or unenforceable. The Pledgor hereby
grants to the Collateral Agent an absolute power of attorney to sign, upon the
occurrence and during the continuance of an Event of Default and delivery of
notice to the Pledgor in accordance with Article X of the Credit Agreement, any
document which may be required by the United States Patent and Trademark Office
in order to effect an absolute assignment of all right,
Page 10
title and interest in each Xxxx and associated goodwill, and record the same.
Section 4.2. Licenses and Assignments. Other than the license
------------------------
agreements listed on Schedule G hereto and any extensions or renewals thereof,
----------
the Pledgor hereby agrees not to divest itself of any right under any
Significant Xxxx absent prior written consent of the Collateral Agent, which
consent shall not be unreasonably withheld.
Section 4.3. Infringements. The Pledgor agrees, promptly upon
-------------
learning thereof, to notify the Collateral Agent in writing of the name and
address of, and to furnish such pertinent information that may be available with
respect to, any party who may be infringing or otherwise violating any of the
Pledgor's rights in and to any Significant Xxxx, or with respect to any party
claiming that the Pledgor's use of any Significant Xxxx violates any property
right of that party, in each case to the extent that the Pledgor reasonably
believes that such infringement or violation is material to its business. The
Pledgor further agrees, if consistent with good business practice and unless
otherwise agreed by the Collateral Agent, diligently to prosecute any Person
infringing any Significant Xxxx to the extent that the Pledgor reasonably
believes that such infringement is material to its business.
Section 4.4. Preservation of Marks. The Pledgor agrees to use its
---------------------
Significant Marks in interstate commerce during the time in which this Agreement
is in effect, sufficiently to preserve such Significant Marks as trademarks or
service marks registered under the laws of the United States.
Section 4.5. Maintenance of Registration. The Pledgor shall, at its
---------------------------
own expense, diligently process all documents required by the Trademark Act of
1946, 15 U.S.C. (S)(S) 1051 et seq. to maintain trademark registration,
-- ----
including but not limited to affidavits of use and applications for renewals of
registration in the United States Patent and Trademark Office for all of its
Significant Marks pursuant to 15 U.S.C. (S)(S) 1058(a), 1059 and 1065, and shall
pay all fees and disbursements in connection therewith and shall not abandon any
such filing of affidavit of use or any such application of renewal prior to the
exhaustion of all reasonable administrative and judicial remedies without the
prior written consent of the Collateral Agent, which consent shall not be
unreasonably withheld.
Section 4.6. Future Registered Marks. If any Xxxx registration
-----------------------
issues hereafter to the Pledgor as a result of any application now or hereafter
pending before the United States Patent and Trademark Office, within thirty (30)
days of receipt
Page 11
of such certificate the Pledgor shall deliver a copy of such certificate, and a
grant of security interest in such xxxx to the Collateral Agent, confirming the
grant thereof hereunder, the form of such confirmatory grant to be substantially
the same as the form hereof.
Section 4.7. Remedies. If an Event of Default shall occur and be
--------
continuing, the Collateral Agent may, upon delivery to the Pledgor of written
notice in accordance with Article X of the Credit Agreement, take any or all of
the following actions: (i) declare the entire right, title and interest of the
Pledgor in and to each of the Marks and the goodwill of the business associated
therewith, together with all trademark rights and rights of protection to the
same, vested, in which event such rights, title and interest shall immediately
vest, in the Collateral Agent for the benefit of the Secured Creditors, in which
case the Collateral Agent shall be entitled to exercise the power of attorney
referred to in Section 4.1 to execute, cause to be acknowledged and notarized
and record said absolute assignment with the applicable agency; (ii) take and
use or sell the Marks and the goodwill of the Pledgor's business symbolized by
the Marks and the right to carry on the business and use the assets of the
Pledgor in connection with which the Marks have been used; and (iii) direct the
Pledgor to refrain, in which event the Pledgor shall refrain, from using the
Marks in any manner whatsoever, directly or indirectly, and, if requested by the
Collateral Agent, change the Pledgor's corporate name to eliminate therefrom any
use of any Xxxx and execute such other and further documents that the Collateral
Agent may request to further confirm this and to transfer ownership of the Marks
and registrations and any pending trademark application in the United States
Patent and Trademark Office or any equivalent government agency or office in any
foreign jurisdiction to the Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS AND COPYRIGHTS
Section 5.1. Additional Representations and Warranties. The Pledgor
-----------------------------------------
represents and warrants that to the best of its knowledge, as of the date
hereof, it is the true and lawful exclusive owner of all rights in its Patents
listed in Schedule H hereto and in the Copyrights listed in Schedule I hereto,
---------- ----------
that said Patents include all the United States patents and applications for
United States patents that the Pledgor now owns and that said Copyrights
constitute all the United States Copyrights registered with the United States
Copyright Office and
Page 12
applications for United States copyrights that the Pledgor now owns. The
Pledgor represents and warrants that to the best of its knowledge, as of the
date hereof, it owns or is licensed to practice under all Patents and Copyrights
that it now uses or practices under. The Pledgor further warrants that it is
aware of no third party claim that any aspect of the Pledgor's present or
contemplated business operations infringes or will infringe any Patent or any
Copyright. The Pledgor hereby grants to the Collateral Agent an absolute power
of attorney to sign, upon the occurrence and during the continuance of any Event
of Default and delivery of notice to the Pledgor in accordance with Article X of
the Credit Agreement, any document which may be required by the United States
Patent and Trademark Office or the United States Copyright Office in order to
effect an absolute assignment of all right, title and interest in each Patent
and Copyright, and record the same.
Section 5.2. Licenses and Assignments. Other than the license
------------------------
agreements listed on Schedule F hereto and any extensions or renewals thereof,
----------
the Pledgor hereby agrees not to divest itself of any right under any
Significant Patent or Significant Copyright absent prior written consent of the
Collateral Agent, which consent shall not be unreasonably withheld.
Section 5.3. Infringements. The Pledgor agrees, promptly upon
-------------
learning thereof, to furnish the Collateral Agent in writing with all pertinent
information available to the Pledgor with respect to any infringement or other
violation of the Pledgor's rights in any Significant Patent or Significant
Copyright, or with respect to any claim that practice of any Significant Patent
or Significant Copyright violates any property right of that party, in each case
to the extent that the Pledgor reasonably believes that such infringement or
violation is material to its business. The Pledgor further agrees, consistent
with good business practice and absent direction of the Collateral Agent to the
contrary, diligently to prosecute any Person infringing any Significant Patent
or Significant Copyright to the extent that the Pledgor reasonably believes that
such infringement is material to its business, which consent shall not be
unreasonably withheld.
Section 5.4. Maintenance of Patents. At its own expense, the Pledgor
----------------------
shall make timely payment of all post-issuance fees required pursuant to 35
U.S.C. (S) 41 to maintain in force rights under each Significant Patent.
Section 5.5. Prosecution of Patent Application. At its own expense,
---------------------------------
the Pledgor shall diligently prosecute all applications for Significant Patents
listed in Schedule H hereto and shall not abandon any such application prior to
----------
exhaustion of
Page 13
all reasonable administrative and judicial remedies, absent written consent of
the Collateral Agent, which consent shall not be unreasonably withheld.
Section 5.6. Other Patents and Copyrights. Within 30 days of
----------------------------
acquisition of a Patent or Copyright, or of filing of an application for a
Patent or Copyright, the Pledgor shall deliver to the Collateral Agent a copy of
such Patent or Copyright or such application, as the case may be, with a grant
of security as to such Patent or Copyright, as the case may be, confirming the
grant thereof hereunder, the form of such confirmatory grant to be substantially
the same as the form hereof.
Section 5.7. Remedies. If an Event of Default shall occur and be
--------
continuing and Collateral Agent has delivered notice to the Pledgor in
accordance with Article X of the Credit Agreement, the Collateral Agent may by
written notice to the Pledgor, take any or all of the following actions: (i)
declare the entire right, title, and interest of the Pledgor in each of its
Patents and Copyrights vested, in which event such right, title, and interest
shall immediately vest in the Collateral Agent for the benefit of the Secured
Creditors, in which case the Collateral Agent shall be entitled to exercise the
power of attorney referred to in Section 5.1 to execute, cause to be
acknowledged and notarized and record said absolute assignment with the
applicable agency; (ii) take and practice or sell the Patents and Copyrights;
and (iii) direct the Pledgor to refrain, in which event the Pledgor shall
refrain, from practicing the Patents and Copyrights directly or indirectly, and
the Pledgor shall execute such other and further documents as the Collateral
Agent may request further to confirm this and to transfer ownership of the
Patents and Copyrights to the Collateral Agent for the benefit of the Secured
Creditors.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
Section 6.1. Protection of Collateral Agent's Security. The Pledgor
-----------------------------------------
will not do anything to impair in any material respect the rights of the
Collateral Agent in the Collateral. The Pledgor will at all times keep its
Inventory and Equipment insured in favor of the Collateral Agent, at the
Pledgor's own expense to the extent and in the manner provided in the Credit
Agreement. If the Pledgor shall fail to insure its Inventory and Equipment in
accordance with the preceding sentence, or if the Pledgor shall fail to so
endorse and deposit all policies with respect thereto, the Collateral Agent
shall have the right (but shall be under no obligation), upon prior notice
Page 14
to the Pledgor, to procure such insurance and the Pledgor agrees to promptly
reimburse the Collateral Agent for all reasonable costs and expenses of
procuring such insurance. The Collateral Agent shall, at the time such proceeds
of such insurance are distributed to the Secured Creditors, apply such proceeds
in accordance with Section 7.4 or as otherwise provided in the Credit Agreement.
The Pledgor assumes all liability and responsibility in connection with the
Collateral acquired by it and the liability of the Pledgor to pay the
Obligations shall in no way be affected or diminished by reason of the fact that
such Collateral may be lost, destroyed, stolen, damaged or for any reason
whatsoever unavailable to the Pledgor unless such loss or damage is finally
judicially determined to have been incurred by reason of the gross negligence or
willful misconduct of any Secured Creditor or any agent of any Secured Creditor
or the failure of a Secured Creditor, in exercising its remedies hereunder, to
act in a commercially reasonable manner.
Section 6.2. Warehouse Receipts Non-negotiable. The Pledgor agrees
---------------------------------
that if any warehouse receipt or receipt in the nature of a warehouse receipt is
issued with respect to any of its Inventory, such warehouse receipt or receipt
in the nature thereof shall not be "negotiable" (as such term is used in Section
7-104 of the Uniform Commercial Code as in effect in any relevant jurisdiction
or under other relevant law).
Section 6.3. Further Actions. The Pledgor will, at its own expense,
---------------
make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent
from time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted, which the Collateral Agent
deems reasonably appropriate or advisable to perfect, preserve or protect its
security interest in the Collateral in accordance with the terms hereof.
Section 6.4. Financing Statements. The Pledgor agrees to execute and
--------------------
deliver to the Collateral Agent such financing statements, in form reasonably
acceptable to the Collateral Agent, as the Collateral Agent may from time to
time reasonably request or as are necessary in the reasonable opinion of the
Collateral Agent to establish and maintain a valid, enforceable, first priority
perfected security interest in the Collateral as provided herein and the other
rights and security contemplated hereby all in accordance with the Uniform
Commercial Code as
Page 15
enacted in any and all applicable jurisdictions or any other applicable law.
The Pledgor will pay any applicable filing fees, recordation taxes and related
expenses. The Pledgor authorizes the Collateral Agent to file any such
financing statements without the signature of the Pledgor where permitted by
law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
Section 7.1. Remedies; Obtaining the Collateral Upon Default. The
-----------------------------------------------
Pledgor agrees that, if any Event of Default shall have occurred and be
continuing and the Collateral Agent shall have delivered to the Pledgor notice
in accordance with Article X of the Credit Agreement, then and in every such
case, subject to any mandatory requirements of applicable law then in effect,
the Collateral Agent, in addition to any rights now or hereafter existing under
applicable law, shall have all rights as a secured creditor under the Uniform
Commercial Code in all applicable jurisdictions and may also (subject to laws
and regulations governing the national security of the United States):
(a) personally, or by agents or attorneys, immediately retake
possession of the Collateral or any part thereof, from the Pledgor or any
other Person who then has possession of any part thereof with or without
notice or process of law, and for that purpose may enter upon the Pledgor's
premises where any of the Collateral is located and remove the same and use
in connection with such removal any and all services, supplies, aids and
other facilities of the Pledgor; possession of machinery shall, however, be
subject to the terms of the Location Leases; and
(b) instruct the obligor or obligors on any agreement, instrument or
other obligation (including, without limitation, the Receivables and the
Contracts) constituting the Collateral to make any payment required by the
terms of such agreement, instrument or other obligation directly to the
Collateral Agent and may exercise any and all remedies of the Pledgor in
respect of such Collateral; and
(c) withdraw all monies, securities and instruments in the Cash
Collateral Account for application to the Obligations in accordance with
Section 7.4; and
(d) sell, assign or otherwise liquidate, or direct the Pledgor to
sell, assign or otherwise liquidate, any or all of its Collateral or any
part thereof, and take possession of the proceeds of any such sale or
liquidation; and
Page 16
(e) take possession of the Collateral or any part thereof, by directing
the Pledgor in writing to deliver the same to the Collateral Agent at any
commercially reasonable place or places designated by the Collateral Agent,
in which event the Pledgor shall at its own expense:
(i) forthwith cause the Collateral pledged by it to be moved to
the place or places so designated by the Collateral Agent and there
delivered to the Collateral Agent, and
(ii) store and keep any Collateral so delivered to the Collateral
Agent at such place or places pending further action by the Collateral
Agent as provided in Section 7.2, and
(iii) while the Collateral shall be so stored and kept, provide
such guards and maintenance services as shall be necessary to protect
the same and to preserve and maintain them in good condition; and
(f) license or sublicense (to the extent not in violation of the
license), whether on an exclusive or nonexclusive basis, any Marks, Patents
or Copyrights included in the Collateral for such term and on such
conditions and in such manner as the Collateral Agent shall in its
commercially reasonable judgment determine;
it being understood that the Pledgor's obligation so to deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction, the Collateral Agent shall be entitled to a
decree requiring specific performance by the Pledgor of said obligation.
Section 7.2. Remedies; Disposition of the Collateral. Any Collateral
---------------------------------------
repossessed by the Collateral Agent under or pursuant to Section 7.1 and any
other Collateral whether or not so repossessed by the Collateral Agent, may be
sold, assigned, leased or otherwise disposed of under one or more contracts or
as an entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at
such place or places and on such terms as the Collateral Agent may, in
compliance with any mandatory requirements of applicable law, determine;
provided that such terms shall be commercially reasonable. Any of the
Collateral may be sold, leased or otherwise disposed of, in the condition in
which the same existed when taken by the Collateral Agent or after any
commercially reasonable overhaul or repair made by or at the direction of the
Collateral Agent. Any such disposition which shall be a private sale or other
private proceedings permitted by
Page 17
such requirements shall be made upon not less than 10 days' written notice to
the Pledgor specifying the time at which such disposition is to be made and the
intended sale price or other consideration therefor, and shall be subject, for
the 10 days after the giving of such notice, to the right of the Pledgor or any
nominee of the Pledgor to acquire the Collateral involved at a price or for such
other consideration at least equal to the intended sale price or other
consideration so reasonably specified. Any such disposition which shall be a
public sale permitted by such requirements shall be made upon not less than 10
days' written notice to the Pledgor specifying the time and place of such sale
and, in the absence of applicable requirements of law, shall be by public
auction (which may, at the Collateral Agent's option, be subject to reserve),
after publication of notice of such auction not less than 10 days prior thereto
in two newspapers in general circulation in the City of New York. To the extent
permitted by any such requirement of law, the Collateral Agent and the Secured
Creditors may bid for and become the purchaser of the Collateral or any item
thereof, offered for sale in accordance with this Section without accountability
to the Pledgor. If, under mandatory requirements of applicable law, the
Collateral Agent shall be required to make disposition of the Collateral within
a period of time which does not permit the giving of notice to the Pledgor as
hereinabove specified, the Collateral Agent need give the Pledgor only such
notice of disposition as shall be reasonably practicable in view of such
mandatory requirements of applicable law. The Pledgor agrees to do or cause to
be done all such other acts and things as may be reasonably necessary to make
such sale or sales of all or any portion of the Collateral valid and binding and
in compliance with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales, all at the Pledgor's reasonable expense.
Section 7.3. Waiver of Claims. Except as otherwise provided in this
----------------
Agreement, THE PLEDGOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S TAKING
POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE COLLATERAL,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY
PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH PLEDGOR WOULD OTHERWISE
HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE,
and the Pledgor hereby further waives, to the extent permitted by law:
(a) all damages occasioned by such taking of possession except any
damages which are the direct result of the Collateral Agent's gross
negligence or willful
Page 18
misconduct or failure to act, in exercising its remedies hereunder, in a
commercially reasonable manner;
(b) all other requirements as to the time, place and terms of sale or
other requirements with respect to the enforcement of the Collateral
Agent's rights hereunder; and
(c) all rights of redemption, appraisement, valuation, stay, extension
or moratorium now or hereafter in force under any applicable law in order
to prevent or delay the enforcement of this Agreement or the absolute sale
of the Collateral or any portion thereof, and the Pledgor, for itself and
all who may claim under it, insofar as it or they now or hereafter lawfully
may, hereby waives the benefit of all such laws unless such action or
threatened action is not commercially reasonable.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the Pledgor therein and thereto, and
shall be a perpetual bar both at law and in equity against the Pledgor and
against any and all Persons claiming or attempting to claim the Collateral so
sold, optioned or realized upon, or any part thereof, from, through and under
the Pledgor other than any Collateral remaining after payment in full of the
Obligations.
Section 7.4. Application of Proceeds. (a) All moneys collected by
-----------------------
the Collateral Agent (or, to the extent the Pledge Agreement or the Mortgage to
which the Pledgor is a party requires proceeds of Collateral under such
agreement to be applied in accordance with the provisions of this Agreement, the
Pledgee or Mortgagee under such other agreement) upon any sale or other
disposition of the Collateral, together with all other moneys received by the
Collateral Agent hereunder, shall be applied as follows:
(i) first, to the payment of all amounts owing the Collateral Agent of
the type described in clauses (iii) and (iv) of the definition of
"Obligations";
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Primary Obligations shall be paid to the Secured Creditors as provided in
Section 7.4(f), with each Secured Creditor receiving an amount equal to
such outstanding Primary Obligations or, if the proceeds are insufficient
to pay in full all such Primary Obligations, its Pro Rata Share of the
amount remaining to be distributed;
Page 19
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Secondary Obligations shall be paid to the Secured Creditors as
provided in Section 7.4(f), with each Secured Creditor receiving an amount
equal to its outstanding Secondary Obligations or, if the proceeds are
insufficient to pay in full all such Secondary Obligations, its Pro Rata
Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, and
following the termination of this Agreement pursuant to Section 10.9(a)
hereof, to the Pledgor or to whomever may be lawfully entitled to receive
such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall mean,
when calculating a Secured Creditor's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid amount of such Secured Creditor's Primary Obligations
or Secondary Obligations, as the case may be, and the denominator of which is
the then outstanding amount of all Primary Obligations or Secondary Obligations,
as the case may be, (y) "Primary Obligations" shall mean (i) in the case of the
Credit Agreement Obligations, all principal of, and interest on, all Loans, all
Unpaid Drawings theretofore made (together with all interest accrued thereon),
and the aggregate Stated Amounts of all Letters of Credit issued (or deemed
issued) under the Credit Agreement, and all Fees and (ii) in the case of the
Other Obligations, all amounts due under the Interest Rate Protection or Other
Hedging Agreements (other than indemnities, fees (including, without limitation,
reasonable attorneys' fees) and similar obligations and liabilities) and (z)
"Secondary Obligations" shall mean all Obligations other than Primary
Obligations.
(c) When payments to Secured Creditors are based upon their respective
Pro Rata Shares, the amounts received by such Secured Creditors hereunder shall
be applied (for purposes of making determinations under this Section 7.4 only)
(i) first, to their Primary Obligations and (ii) second, to their Secondary
Obligations. If any payment to any Secured Creditor of its Pro Rata Share of
any distribution would result in overpayment to such Secured Creditor, such
excess amount shall instead be immediately distributed in respect of the unpaid
Primary Obligations or Secondary Obligations, as the case may be, of the other
Secured Creditors, with each Secured Creditor whose Primary Obligations or
Secondary Obligations, as the case may be, have
Page 20
not been paid in full to receive an amount equal to such excess amount
multiplied by a fraction the numerator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of such Secured
Creditor and the denominator of which is the unpaid Primary Obligations or
Secondary Obligations, as the case may be, of all Secured Creditors entitled to
such distribution.
(d) Each of the Secured Creditors agrees and acknowledges that if the
Bank Creditors are to receive a distribution on account of undrawn amounts with
respect to Letters of Credit issued (or deemed issued) under the Credit
Agreement (which shall only occur after all outstanding Loans and Unpaid
Drawings with respect to such Letters of Credit have been paid in full), such
amounts shall be paid to the Administrative Agent under the Credit Agreement and
held by it, for the equal and ratable benefit of the Bank Creditors, as cash
security for the repayment of Obligations owing to the Bank Creditors as such.
If any amounts are held as cash security pursuant to the immediately preceding
sentence, then upon the termination of all outstanding Letters of Credit, and
after the application of all such cash security to the repayment of all
Obligations owing to the Bank Creditors after giving effect to the termination
of all such Letters of Credit, if there remains any excess cash, such excess
cash shall be distributed by the Collateral Agent in accordance with Section
7.4(a) hereof.
(e) Except as set forth in Section 7.4(d), all payments required to be
made hereunder shall be made (x) if to the Bank Creditors, to the Administrative
Agent under the Credit Agreement for the account of the Bank Creditors, and (y)
if to the Other Creditors, to the trustee, paying agent or other similar
representative (each a "Representative") for the Other Creditors or, in the
absence of such a Representative, directly to the Other Creditors.
(f) For purposes of applying payments received in accordance with this
Section 7.4, the Collateral Agent shall be entitled to rely upon (i) the
Administrative Agent under the Credit Agreement and (ii) the Representative for
the Other Creditors or, in the absence of such a Representative, upon the Other
Creditors for a determination (which the Administrative Agent, each
Representative for any Secured Creditors and the Secured Creditors agree (or
shall agree) to provide upon request of the Collateral Agent) of the outstanding
Primary Obligations and Secondary Obligations owed to the Bank Creditors or the
Other Creditors, as the case may be. Unless it has actual knowledge (including
by way of written notice from a Bank Creditor or an Other Creditor) to the
contrary, the Administrative Agent and each Representative, in furnishing
information pursuant to the
Page 21
preceding sentence, and the Collateral Agent, in acting hereunder, shall be
entitled to assume that no Secondary Obligations are outstanding. Unless it has
actual knowledge (including by way of written notice from an Other Creditor) to
the contrary, the Collateral Agent, in acting hereunder, shall be entitled to
assume that no Interest Rate Protection or Other Hedging Agreements are in
existence.
(g) It is understood and agreed that the Pledgor shall remain liable
to the extent of any deficiency between the amount of the proceeds of the
Collateral hereunder and the aggregate amount of the sums referred to in clauses
(i) through (iii), inclusive, of Section 7.4(a), except to the extent that such
proceeds are not applied by the Collateral Agent in accordance with this
Agreement and the Credit Agreement.
Section 7.5. Remedies Cumulative. Each and every right, power and
-------------------
remedy hereby specifically given to the Collateral Agent shall be in addition to
every other right, power and remedy specifically given under this Agreement, the
Interest Rate Protection or Other Hedging Agreements, the other Credit Documents
or now or hereafter existing at law or in equity, or by statute and each and
every right, power and remedy whether specifically herein given or otherwise
existing may be exercised from time to time or simultaneously and as often and
in such order as may be deemed expedient by the Collateral Agent. All such
rights, powers and remedies shall be cumulative and the exercise or the
beginning of exercise of one shall not be deemed a waiver of the right to
exercise of any other or others. No delay or omission of the Collateral Agent
in the exercise of any such right, power or remedy, renewal or extension of any
of the Obligations and no course of dealing between the Pledgor and the
Collateral Agent or any holder of any of the Obligations shall impair any such
right, power or remedy or shall be construed to be a waiver of any Default or
Event of Default or an acquiescence therein. No notice to or demand on the
Pledgor in any case shall entitle it to any other or further notice or demand in
similar or other circumstances or constitute a waiver of any of the rights of
the Collateral Agent to any other or further action in any circumstances without
notice or demand. In the event that the Collateral Agent shall bring any suit
to enforce any of its rights hereunder and shall be entitled to judgment, then
in such suit the Collateral Agent may recover expenses, including reasonable
attorneys' fees, and the amounts thereof shall be included in such judgment.
Section 7.6. Discontinuance of Proceedings. In case the Collateral
-----------------------------
Agent shall have instituted any proceeding to enforce any right, power or remedy
under this Agreement by foreclosure, sale, entry or otherwise, and such
proceeding shall
Page 22
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Collateral Agent, then and in every such case the Pledgor, the
Collateral Agent and each holder of any of the Obligations shall be restored to
their former positions and rights hereunder with respect to the Collateral
subject to the security interest created under this Agreement, and all rights,
remedies and powers of the Collateral Agent shall continue as if no such
proceeding had been instituted.
ARTICLE VIII
INDEMNITY
Section 8.1. Indemnity. (a) The Pledgor agrees to indemnify,
---------
reimburse and hold the Collateral Agent, each Secured Creditor and their
respective successors, assigns, employees, agents and servants (hereinafter in
this Section 8.1 referred to individually as "Indemnitee," and collectively as
"Indemnities") harmless from any and all liabilities, obligations, damages,
injuries, penalties, claims, demands, actions, suits, judgments and any and all
costs, expenses or disbursements (including reasonable attorneys' fees and
expenses) (for the purposes of this Section 8.1 the foregoing are collectively
called "expenses") of whatsoever kind and nature imposed on, asserted against or
incurred by any of the Indemnities arising out of this Agreement, [any Interest
Rate Protection or Other Hedging Agreement,] any other Credit Document or any
other document executed in connection herewith and therewith or in any other way
connected with the administration of the transactions contemplated hereby and
thereby or the enforcement of any of the terms of, or the preservation of any
rights under any thereof, or in any way relating to or arising out of the
manufacture, ownership, ordering, purchase, delivery, control, acceptance,
lease, financing, possession, operation, condition, sale, return or other
disposition, or use of the Collateral (including, without limitation, latent or
other defects, whether or not discoverable), any contract claim or, to the
maximum extent permitted under applicable law, the violation of the laws of any
country, state or other governmental body or unit, or any tort (including,
without limitation, claims arising or imposed under the doctrine of strict
liability, or for or on account of injury to or the death of any Person
(including any Indemnitee), or property damage); provided that no Indemnitee
shall be indemnified pursuant to this Section 8.1(a) for expenses to the extent
finally judicially determined to have been incurred by reason of the gross
negligence or willful misconduct of such Indemnitee. The Pledgor agrees that
upon written notice by any Indemnitee of the assertion of such a liability,
obligation, damage, injury, penalty, claim, demand, action, suit or judgment,
the Pledgor
Page 23
shall assume full responsibility for the defense thereof. Each Indemnitee
agrees to use its best efforts to promptly notify the Pledgor of any such
assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a), the Pledgor
agrees to pay, or reimburse the Collateral Agent for any and all reasonable
fees, costs and expenses of whatever kind or nature incurred in connection with
the creation, preservation or protection of the Collateral Agent's Liens on, and
security interest in, the Collateral, including, without limitation, all
reasonable fees and taxes in connection with the recording or filing of
instruments and documents in public offices, payment or discharge of any taxes
or Liens upon or in respect of the Collateral, premiums for insurance with
respect to the Collateral and all other fees, costs and expenses in connection
with protecting, maintaining or preserving the Collateral and the Collateral
Agent's interest therein, whether through judicial proceedings or otherwise, or
in defending or prosecuting any actions, suits or proceedings arising out of or
relating to the Collateral as set forth herein and in the Credit Agreement.
(c) Without limiting the application of Section 8.1(a) or (b), the
Pledgor agrees to pay, indemnify and hold each Indemnitee harmless from and
against any loss, costs, damages and expenses which such Indemnitee may suffer,
expend or incur in consequence of or growing out of any material
misrepresentation by the Pledgor in this Agreement, any Interest Rate Protection
or Other Hedging Agreement, any other Credit Document or in any writing
contemplated by or made or delivered pursuant to or in connection with this
Agreement, any Interest Rate Protection or Other Hedging Agreement or any other
Credit Document as set forth herein and in the Credit Agreement.
(d) If and to the extent that the obligations of the Pledgor under
this Section 8.1 are unenforceable for any reason, the Pledgor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
Section 8.2. Indemnity Obligations Secured by Collateral; Survival.
-----------------------------------------------------
Any amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnification obligations of the Pledgor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment of all the
Notes issued under the Credit Agreement, the termination of all Interest Rate
Protection or Other Hedging Agreements and the payment of all other Obligations
and notwithstanding the discharge thereof.
Page 24
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified. Such
definitions shall be equally applicable to the singular and plural forms of the
terms defined.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Agreement" shall mean this Security Agreement as the same may be
modified, supplemented or amended from time to time in accordance with its
terms.
"Bank Creditor" shall have the meaning provided in the first paragraph
of this Agreement.
"Banks" shall have the meaning provided in the first WHEREAS clause of
this Agreement.
"Cash Collateral Account" shall mean a non-interest bearing cash
collateral account maintained with __________________ for the benefit of the
Secured Creditors.
"Chattel Paper" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Class" shall have the meaning provided in Section 10.2 of this
Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a) of this
Agreement.
"Contract Rights" shall mean all rights of the Pledgor (including,
without limitation, all rights to payment) under each Contract.
"Contracts" shall mean all contracts between the Pledgor and one or
more additional parties (including, without limitation, (i) each partnership
agreement to which the Pledgor is a party and (ii) any Interest Rate Protection
or Other Hedging Agreements), but excluding (x) licenses to the extent that the
terms thereof prohibit the assignment of, or granting of a security interest in,
such licenses and (y) location contracts which have not, with the Collateral
Agent's approval, been assigned to the Collateral Agent.
Page 25
"Copyrights" shall mean any United States copyright which the Pledgor
now or hereafter has registered with the United States Copyright Office, as well
as any application for a United States copyright registration now or hereafter
made with the United States Copyright Office by the Pledgor.
"Credit Agreement" shall have the meaning provided in the first
paragraph of this Agreement.
"Credit Agreement Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"Default" shall mean any event which, with notice or lapse of time, or
both, would constitute an Event of Default.
"Documents" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by the Pledgor and, in any event, shall include,
but shall not be limited to, all machinery, equipment, furnishings and movable
trade fixtures now or hereafter owned by the Pledgor and any and all additions,
substitutions and replacements of any of the foregoing, wherever located,
together with all attachments, components, parts, equipment and accessories
installed thereon or affixed thereto.
"Event of Default" shall mean any Event of Default under, and as
defined in, the Credit Agreement and shall in any event, without limitation,
include any payment default on any of the Obligations, after the expiration of
any applicable grace and cure periods.
"General Intangibles" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York and
shall in any event include all of the Pledgor's claims, rights, powers,
privileges, authority, options, security interests, liens and remedies under any
partnership agreement to which the Pledgor is a party or with respect to any
partnership of which the Pledgor is a partner.
"Goods" shall have the meaning provided in the Uniform Commercial Code
as in effect on the date hereof in the State of New York.
"Indemnitee" shall have the meaning provided in Section 8.1 of this
Agreement.
Page 26
"Instrument" shall have the meaning provided in Article 9 of the
Uniform Commercial Code as in effect on the date hereof in the State of New York
but shall not include any Location Leases.
"Interest Rate Protection or Other Hedging Agreements" shall have the
meaning provided in the first paragraph of this Agreement.
"Inventory" shall mean merchandise, inventory and goods, and all
additions, substitutions and replacements thereof, wherever located, together
with all goods, supplies, incidentals, packaging materials, labels, materials
and any other items used or usable in manufacturing, processing, packaging or
shipping same; in all stages of production -- from raw materials through work-
in-process to finished goods -- and all products and proceeds of whatever sort
and wherever located and any portion thereof which may be returned, rejected,
reclaimed or repossessed by the Collateral Agent from the Pledgor's customers,
and shall specifically include all "inventory" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by the Pledgor.
"Marks" shall mean any trademarks and service marks now held or
hereafter acquired by the Pledgor, which are registered in the United States
Patent and Trademark Office or in any similar office or agency of the United
States or any state thereof or any political subdivision thereof and any
application for such trademarks and service marks, as well as any unregistered
marks used by the Pledgor in the United States and trade dress including logos,
designs, trade names, company names, business names, fictitious business names
and other business identifiers in connection with which any of these registered
or unregistered marks are used in the United States.
"Obligations" shall mean (i) (x) the principal of and interest on the
Notes issued, and Loans made, under the Credit Agreement, and all reimbursement
obligations and Unpaid Drawings with respect to the Letters of Credit under the
Credit Agreement and (y) all other obligations and indebtedness (including,
without limitation, indemnities, Fees and interest thereon) of the Pledgor to
the Bank Creditors now existing or hereafter incurred under, arising out of, or
in connection with the Credit Agreement and the other Credit Documents and the
due performance and compliance by the Pledgor with all of the terms, conditions
and agreements contained in the Credit Agreement and the other Credit Documents
(all such principal, interest, obligations and liabilities being herein
collectively called the "Credit Agreement Obligations"); (ii) all obligations
and liabilities owing by the Pledgor to the Other Creditors under, or with
Page 27
respect to, any Interest Rate Protection or Other Hedging Agreement, whether
such Interest Rate Protection or Other Hedging Agreement is now in existence or
hereafter arising, and the due performance and compliance by the Pledgor with
all of the terms, conditions and agreements contained therein (all such
obligations and liabilities described in this clause (ii) being herein
collectively called the "Other Obligations"); (iii) any and all sums reasonably
advanced by the Collateral Agent in order to preserve the Collateral or preserve
its security interest in the Collateral in accordance with the terms hereof and
the other Credit Documents; (iv) in the event of any proceeding for the
collection or enforcement of any indebtedness, obligations, or liabilities of
the Pledgor referred to in clauses (i) and (ii), after an Event of Default shall
have occurred and be continuing and the Collateral Agent has given notice under
Article X of the Credit Agreement, the commercially reasonable expenses of re-
taking, holding, preparing for sale or lease, selling or otherwise disposing of
or realizing on the Collateral, or of any exercise by the Collateral Agent of
its rights hereunder, together with reasonable attorneys' fees and court costs
in accordance with the terms hereof and the other Credit Documents; and (v) all
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement under Section 8.1 of this Agreement. It is acknowledged and
agreed that the "Obligations" shall include extensions of credit of the types
described above, whether outstanding on the date of this Agreement or extended
from time to time after the date of this Agreement.
"Other Creditors" shall have the meaning provided in the first
paragraph of this Agreement.
"Other Obligations" shall have the meaning provided in the definition
of "Obligations" in this Article IX.
"Patents" shall mean any United States patent now or hereafter owned
by the Pledgor, as well as any application for a United States patent now or
hereafter owned by the Pledgor.
"Permitted Filings" shall have the meaning provided in Section 2.1 of
this Agreement.
"Permitted Liens" shall have the meaning provided in the Credit
Agreement.
"Pledgor" shall have the meaning provided in the first paragraph of
this Agreement.
"Primary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
Page 28
"Pro Rata Share" shall have the meaning provided in Section 7.4(c) of
this Agreement.
"Proceeds" shall have the meaning provided in the Uniform Commercial
Code as in effect in the State of New York on the date hereof or under other
relevant law and, in any event, shall include, but not be limited to, (i) any
and all proceeds of any insurance, indemnity, warranty or guaranty payable to
the Collateral Agent or the Pledgor from time to time with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever) made or due and
payable to the Pledgor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Collateral by any governmental authority (or any person acting under color of
governmental authority) and (iii) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
"Receivables" shall mean any "account" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by the Pledgor and, in any event, shall include,
but shall not be limited to, all of the Pledgor's rights to payment for goods
sold or leased or services performed by the Pledgor, whether now in existence or
arising from time to time hereafter, including, without limitation, rights
evidenced by an account, note, contract, security agreement, chattel paper, or
other evidence of indebtedness or security, together with (i) all security
pledged, assigned, hypothecated or granted to or held by the Pledgor to secure
the foregoing, (ii) all of the Pledgor's right, title and interest in and to any
goods, the sale of which gave rise thereto, (iii) all guarantees, endorsements
and indemnifications on, or of, any of the foregoing, (iv) all powers of
attorney for the execution of any evidence of indebtedness or security or other
writing in connection therewith, (v) all books, records, ledger cards, and
invoices relating thereto, (vi) all evidences of the filing of financing
statements and other statements and the registration of other instruments in
connection therewith and amendments thereto, notices to other creditors or
secured parties, and certificates from filing or other registration officers,
(vii) all credit information, reports and memoranda relating thereto, and (viii)
all other writings related in any way to the foregoing.
"Representative" shall have the meaning provided in Section 7.4 of
this Agreement.
"Required Secured Creditors" shall mean (i) the Required Banks (or, to
the extent required by Section 13.12 of the Credit Agreement, all of the Banks)
under the Credit
Page 29
Agreement so long as any Credit Agreement Obligations remain outstanding and
(ii) in any situation not covered by the preceding clause (i), the holders of a
majority of the outstanding principal amount of the Other Obligations.
"Requisite Creditors" shall have the meaning provided in Section 10.2.
"Secondary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Significant Copyrights" shall mean those Copyrights which the Pledgor
believes in its reasonable judgment to be material to its business.
"Secured Creditors" shall have the meaning provided in the first
paragraph of this Agreement.
"Significant Marks" shall mean those Marks which the Pledgor believes
in its reasonable judgment to be material to its business.
"Significant Patents" shall mean those Patents which the Pledgor
believes in its reasonable judgment to be material to its business.
"Termination Date" shall have the meaning provided in Section 10.9 of
this Agreement.
"Trade Secrets" shall mean any material know-how, technology, product
formulations, procedures and product and manufacturing specifications or
standards now or hereafter utilized in the Pledgor's business.
ARTICLE X
MISCELLANEOUS
Section 10.1. Notices. All such notices and communications hereunder
-------
shall be telecopied or delivered by messenger or overnight courier service and
all such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, be effective when delivered
to the telegraph company, cable company or overnight courier, as the case may
be, or sent by telex or telecopier and when mailed shall be effective three
Business Days following deposit in the mail with proper postage, except that
notices and communications to the Collateral Agent shall not be effective until
received by the Collateral Agent. All notices,
Page 30
requests, demands or other communications shall be in writing and addressed as
follows:
(a) if to the Pledgor, at:
Coinmach Corporation
00 Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention:
with a copy to:
Coinmach Corporation
-------------------------
Charlotte, North Carolina
Attention:
______________
with a copy to:
Xxxxxxxx Kill & Olick, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
(b) if to the Collateral Agent:
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Prior
(c ) if to any Bank Creditor, either (x) to the Administrative Agent,
at the address of the Administrative Agent specified in the Credit
Agreement or (y) at such address as such Bank Creditor shall have specified
in the Credit Agreement;
(d) if to any Other Creditor, either (x) to the Representative for the
Other Creditors, at such address as such Representative may have provided
to the Pledgor and the Collateral Agent from time to time, or (y) directly
to the Other Creditors at such address as the Other Creditors shall have
specified in writing to the Pledgor and the Collateral Agent;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
Page 31
Section 10.2. Waiver; Amendment. None of the terms and conditions of
-----------------
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by the Pledgor and the Collateral Agent
(with the written consent of the Required Banks, or to the extent required by
Section 13.12 of the Credit Agreement, all the Banks); provided, however, that
-------- -------
any change, waiver, modification or variance affecting the rights and benefits
of a single Class of Secured Creditors (and not all Secured Creditors in a like
or similar manner) shall require the written consent of the Requisite Creditors
of such affected Class. For the purpose of this Agreement, the term "Class"
shall mean each class of Secured Creditors, i.e., whether (y) the Bank Creditors
----
as holders of the Credit Agreement Obligations or (z) the Other Creditors as the
holders of the Other Obligations; and the term "Requisite Creditors" of any
Class shall mean each of (x) with respect to the Credit Agreement Obligations,
the Required Banks and (y) with respect to the Other Obligations, the holders of
51% of all obligations outstanding from time to time under the Interest Rate
Protection Agreements or Other Hedging Agreements.
Section 10.3. Obligations Absolute. The obligations of the Pledgor
--------------------
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of the Pledgor; (b) any
exercise or non-exercise, or any waiver of, any right, remedy, power or
privilege under or in respect of this Agreement, any other Credit Document [or
any Interest Rate Protection or Other Hedging Agreement] except as specifically
set forth in a waiver granted pursuant to Section 10.2 hereof; or (c) any
amendment to or modification of any Credit Document or any Interest Rate
Protection or Other Hedging Agreement or any security for any of the
Obligations; whether or not the Pledgor shall have notice or knowledge of any of
the foregoing.
Section 10.4. Successors and Assigns. This Agreement shall be
----------------------
binding upon the parties hereto and their respective successors and assigns and
shall inure to the benefit of the Collateral Agent, each Secured Creditor and
the Pledgor and their respective successors and assigns, provided that the
Pledgor may not transfer or assign any or all of its rights or obligations
hereunder without the written consent of the Required Secured Creditors and no
Secured Creditor shall assign its rights hereunder except in accordance with the
Credit Agreement. All agreements, statements, representations and warranties
made by the Pledgor herein or in any certificate or other instrument delivered
by the Pledgor or on its behalf under this Agreement shall be considered to have
been relied upon by the Secured Creditors and shall survive the execution and
delivery of this
Page 32
Agreement, the other Credit Documents and the Interest Rate Protection or Other
Hedging Agreements regardless of any investigation made by the Secured Creditors
or on their behalf.
Section 10.5. Headings Descriptive. The headings of the several
--------------------
sections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
Section 10.6. 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.
SECTION 10.7. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
-------------
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Section 10.8. Pledgor's Duties. It is expressly agreed, anything
----------------
herein contained to the contrary notwithstanding, that the Pledgor shall remain
liable to perform all of the obligations, if any, assumed by it with respect to
the Collateral and the Collateral Agent shall not have any obligations or
liabilities with respect to any Collateral by reason of or arising out of this
Agreement, nor shall the Collateral Agent be required or obligated in any manner
to perform or fulfill any of the obligations of the Pledgor under or with
respect to any Collateral except to the extent directly resulting from the
Collateral Agent's gross negligence or willful misconduct or failure to act, in
exercising its remedies hereunder, in a commercially reasonable manner.
Section 10.9. Termination; Release. (a) After the Termination Date,
--------------------
this Agreement shall terminate and the Collateral Agent, at the request and
expense of the Pledgor, will promptly execute and deliver to the Pledgor a
proper instrument or instruments (including Uniform Commercial Code termination
statements on form UCC-3) acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to the Pledgor (without
recourse and without any representation or warranty) such of the Collateral of
the Pledgor as may be in the possession of the Collateral Agent and as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement. As used in this Agreement, "Termination Date" shall mean the date
upon which the Commitments and all Interest Rate Protection or Other Hedging
Agreements have
Page 33
been terminated, no Note under the Credit Agreement is outstanding (and all
Loans have been repaid in full), all Letters of Credit have been terminated and
all Obligations then owing have been paid in full.
(b) In the event that any part of the Collateral is sold in connection
with a sale permitted by Section 9.02 or in connection with an investment made
by the Pledgor in accordance with Section 9.05(j) of the Credit Agreement or is
otherwise released at the direction of the Required Banks (or all Banks if
required by Section 13.12 of the Credit Agreement) and the proceeds of such sale
or sales or from such release are applied in accordance with, and to the extent
required by, the provisions of Section 4.02 of the Credit Agreement, to the
extent required to be so applied, such Collateral will be sold free and clear of
the Liens created by this Agreement and the Collateral Agent, at the request and
expense of the Pledgor, will duly assign, transfer and deliver to the Pledgor
(without recourse and without any representation or warranty) such of the
Collateral as is then being (or has been) so sold or released and as may be in
the possession of the Collateral Agent and has not theretofore been released
pursuant to this Agreement.
(c) At any time that the Pledgor desires that the Collateral Agent
take any action to acknowledge or give effect to any release of Collateral
pursuant to the foregoing Section 10.9(b), it shall deliver to the Collateral
Agent a certificate signed by its chief financial officer stating that the
release of the respective Collateral is permitted pursuant to Section 10.9(a) or
(b).
(d) The Collateral Agent shall have no liability whatsoever to any
Secured Creditor as a result of any release of Collateral by it in accordance
with this Section 10.9.
Section 10.10. Counterparts. This Agreement may be executed in any
------------
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set
of counterparts executed by all the parties hereto shall be lodged with the
Pledgor and the Collateral Agent.
Section 10.11. The Collateral Agent. The Collateral Agent will hold
--------------------
in accordance with this Agreement all items of the Collateral at any time
received under this Agreement. It is expressly understood and agreed by the
parties hereto and each Secured Creditor, by accepting the benefits of this
Agreement acknowledges and agrees that the obligations of the Collateral Agent
as holder of the Collateral and interests therein and with
Page 34
respect to the disposition thereof, and otherwise under this Agreement, are only
those expressly set forth in this Agreement. The Collateral Agent shall act
hereunder on the terms and conditions set forth in Section 12 of the Credit
Agreement.
Page 35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
COINMACH CORPORATION,
as Pledgor
By:/s/ Xxxxxx X. Xxxxx
_____________________________
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
BANKERS TRUST COMPANY,
as Collateral Agent
By:/s/ Xxxxxxxx Xxxxx
_____________________________
Name: Xxxxxxxx Xxxxx
Title: Vice President
SCHEDULE A
PERMITTED FILINGS
1. Kwik Wash Laundries L.P. has provided seller financing in connection with
six laundromat store locations (three in Austin, three in Dallas and one in
Houston, Texas). All such financings are secured by liens on such
laundromat stores.
2. Borrower's computer system and related equipment are pledged as security
under capital leases pursuant to a rollover agreement with IBM Credit
Corporation, Master Agreement Number HR11512, dated August 28, 1995.
3. The Inter-Tel 36 Telephone System including all substitutions,
modifications and proceeds thereof are covered by a UCC-1 Financing
statement which states that the property rental property and that the UCC-1
was filed only to make the rental a matter of public record. The secured
party was Inter-Tel Leasing, Inc. before assigned to Xxxxxx Financial, Inc.
4. The Tie Ultracom AT Telephone System including all substitutions,
modifications and proceeds thereof are covered by a UCC-1 Financing
statement which states that the property rental property and that the UCC-1
was filed only to make the rental a matter of public record. The secured
party was Inter-Tel Leasing, Inc.
5. Xxxxxx United Bank, as Secured Party, UCC-1, File Number 94-1030, File
Date: April 14, 1994 (Borrower will have this lien removed after the
Closing Date)
SCHEDULE B
CHIEF EXECUTIVE OFFICES
1. 00 Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
2. 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
SCHEDULE C
RECORD LOCATIONS
1. 00 Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
2. 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
SCHEDULE D
LOCATIONS OF INVENTORY AND EQUIPMENT
Alabama
Arizona
Arkansas
California
Connecticut
Delaware
District of Columbia
Florida
Georgia
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maryland
Michigan
Minnesota
Mississippi
Missouri
Nebraska
New Jersey
New York
North Carolina
Ohio
Oklahoma
Pennsylvania
South Carolina
South Dakota
Tennessee
Texas
Virginia
West Virginia
Wisconsin
SCHEDULE E
TRADE NAMES, FICTITIOUS NAMES OR OTHER NAMES
1. Coinmach Corporation uses the following names:
(a) Hi-Rise Laundry Equipment Company or any variation thereof
(b) Allied Laundry Equipment Company or any variation thereof
(c) Solon Automated Services, Inc. or any variation thereof
(d) Kwik-Wash Laundries, L.P. or any variation thereof
2. The Coinmach Corporation was incorporated in the State of Delaware on
January 19, 1995. On January 31, 1995, The Coinmach Corporation purchased
all of the partnership interests of Coinmach Industries Co., L.P. and Super
Laundry Equipment Co., L.P. from CIC I Acquisition Corp. and Coinmach
Holding Corp. Coinmach Corporation is the surviving and renamed
corporation resulting from the merger of The Coinmach Corporation with and
into Solon Automated Services, Inc. on November 30, 1995. Certain of the
names of the foregoing entities may be used or referenced to in the
operations of Coinmach Corporation.
3. Coinmach Corporation has the following two subsidiaries:
(a) Super Laundry Equipment Corp. which does business as Wasco Laundry
Equipment Company and Luca Laundry Equipment Company
(b) Grand Wash & Dry Launderette, Inc.
SCHEDULE F
MARKS
1. The service xxxx "Flexivend"
SCHEDULE G
LICENSE AGREEMENTS
None.
SCHEDULE H
PATENTS AND APPLICATIONS
None.
SCHEDULE I
COPYRIGHTS
None.
ANNEX J
to
Security Agreement
------------------
ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS AND PATENTS
---------------------------------------------
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which
are hereby acknowledged, Coinmach Corporation, a corporation with principal
offices at 00 Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000, ("the Assignor"), hereby
assigns and grants to Bankers Trust Company, as Collateral Agent, with principal
offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Assignee"), a
security interest in (i) all of Assignor's right, title and interest in and to
the United States trademarks, trademark registrations and trademark applications
(the "Marks") set forth on Schedule A attached hereto, (ii) all of Assignor's
----------
right, title and interest in and to the United States patents (the "Patents")
set forth on Schedule B attached hereto, in each case together with (iii) all
----------
Proceeds (as such term is defined in the Security Agreement referred to below)
and products of the Marks and Patents, (iv) the goodwill of the businesses
symbolized by the Marks and (v) all causes of action arising prior to or after
the date hereof for infringement of any of the Marks and Patents or unfair
competition regarding the same.
THIS ASSIGNMENT is made to secure the full and prompt performance and
payment of all the Obligations of Assignor, as such term is defined in the
Security Agreement between Assignor, Assignee and certain other entities party
thereto, dated as of January 8, 1997 (as amended from time to time, the
"Security Agreement"). Upon the occurrence of the Termination Date (as defined
in the Security Agreement), the Assignee shall, upon such satisfaction, execute,
acknowledge, and deliver to Assignor an instrument in writing releasing the
security interest in the Marks and Patents acquired under this Assignment.
This Assignment has been granted in conjunction with the security
interest granted to the Assignee under the Security Agreement. The rights and
remedies of the Assignee with respect to the security interest granted herein
are without prejudice to, and are in addition to those set forth in the Security
Agreement, all terms and provisions of which are incorporated herein by
reference. In the event that any provisions of this Assignment are deemed to
conflict with the Security Agreement, the provisions of the Security Agreement
shall govern.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the 8th day of January, 1997.
COINMACH CORPORATION, as Assignor
By:__________________________________
Name:
Title:
BANKERS TRUST COMPANY, as
Collateral Agent, Assignee
By:__________________________________
Name:
Title:
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of January, 1997, before me personally came
_________________ who, being by me duly sworn, did state as follows: that he is
_______________ of Coinmach Corporation, that he is authorized to execute the
foregoing Assignment on behalf of said corporation and that he did so by
authority of the Board of Directors of said corporation.
_________________________
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of January, 1997, before me personally came
_____________________ who, being by me duly sworn, did state as follows: that
he is __________________ of Bankers Trust Company, that he is authorized to
execute the foregoing Assignment on behalf of said corporation and that he did
so by authority of the Board of Directors of said corporation.
____________________________
Notary Public
SCHEDULE A
----------
XXXX REG. NO. REG. DATE
---- -------- ---------
SCHEDULE B
----------
PATENT PATENT NO. ISSUE DATE
------ ---------- ----------
ANNEX K
to
Security Agreement
------------------
ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
WHEREAS, Coinmach Corporation, a Delaware corporation, having its
chief executive office at 00 Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000, (the
"Assignor") is the owner of all right, title and interest in and to the United
States copyrights and associated United States copyright registrations and
applications for registration set forth in Schedule A attached hereto;
----------
WHEREAS, BANKERS TRUST COMPANY, as Collateral Agent, having its
principal offices at 000 Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000 (the "Assignee"),
desires to acquire a security interest in, and lien on, said copyrights and
copyright registrations and applications therefor and the goodwill of the
business symbolized by said copyrights; and
WHEREAS, Assignor is willing to assign to the Assignee, and to grant
to the Assignee a security interest in and lien upon the copyrights and
copyright registrations and applications therefor described above;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and subject to the terms and conditions of the
Security Agreement, dated as of January 8, 1997, between Assignor, the Assignee
and certain other entities party thereto (as amended from time to time, the
"Security Agreement"), Assignor hereby assigns to the Assignee, and grants to
the Assignee a security interest in and a lien upon, the copyrights and
copyright registrations and applications therefor set forth in Schedule A
----------
attached hereto and the goodwill of the business symbolized by said copyrights.
This Assignment has been granted in conjunction with the security
interest granted to the Assignee under the Security Agreement. The rights and
remedies of the Assignee with respect to the security interest granted herein
are without prejudice to, and are in addition to those set forth in the Security
Agreement, all terms and provisions of which are incorporated herein by
reference. In the event that any provisions of this Assignment are deemed to
conflict with the Security Agreement, the provisions of the Security Agreement
shall govern.
Executed at New York, New York, the 8th day of January, 1997.
COINMACH CORPORATION, as Assignor
By__________________________
Name:
Title:
BANKERS TRUST COMPANY, as
Collateral Agent,
Assignee
By__________________________
Name:
Title:
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of January, 1997 before me personally came
_______________, who being duly sworn, did depose and say that he is
___________________ of Coinmach Corporation, that he is authorized to execute
the foregoing Assignment on behalf of said corporation and that he did so by
authority of the Board of Directors of said corporation.
_________________________
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of January, 1997 before me personally came
_______________, who being duly sworn, did depose and say that he is
___________________ of Bankers Trust Company, that he is authorized to execute
the foregoing Assignment on behalf of said corporation and that he did so by
authority of the Board of Directors of said corporation.
_________________________
Notary Public
SCHEDULE A
----------
U.S. COPYRIGHTS
---------------
REGISTRATION PUBLICATION
NUMBERS DATE COPYRIGHT TITLE
-------------- ---------------- ---------------
