Exhibit D
SECURITY AGREEMENT
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This SECURITY AGREEMENT (this "Agreement") dated as of September 30,
1998, is made by Inamed Corporation, a Florida corporation (the "Obligor"),
and APPALOOSA MANAGEMENT, L.P., as collateral agent (the "Collateral
Agent") for the benefit of the holders of the Obligor's 10.00% Senior
Secured Notes due March 31, 1999 or, at the option of the Obligor exercised
as provided therein, September 1, 2000 (the "Notes").
RECITALS
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A. Pursuant to the Note Purchase Agreement, dated as of the date
hereof (as amended, supplemented, restated or otherwise modified from time
to time, the "Note Purchase Agreement"), among the purchasers listed on
Exhibit A thereto (the "Purchasers"), the Collateral Agent and the Obligor,
the Purchasers are purchasing Notes from the Obligor in the aggregate
principal amount of $8,000,000 and Warrants to acquire up to 590,000 shares
of Common Stock with an exercise price of $6.50 per share (the "Loan
Warrants");
B. As a condition, and material inducement, to the Purchasers'
agreement to purchase the Notes and the Loan Warrants, the Purchasers
required that the Obligor deliver this Agreement to the Collateral Agent;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Obligor agrees with
the Collateral Agent as follows:
Article I. Definitions and Interpretation.
1.01 Certain Defined Terms. Unless otherwise defined, all capitalized
terms used in this Agreement that are defined in the Note Purchase
Agreement (including those terms incorporated therein by reference) shall
have the respective meanings assigned to them in the Note Purchase
Agreement. In addition, the following terms shall have the following
meanings under this Agreement:
"Accounts" shall have the meaning assigned to that term in Section
2.01(b).
"Breast Implant Litigation" shall mean the litigation in the United
States District Court for the Northern District of Alabama, Southern
Division stylized as "Silicone Gel Breast Implant Products Liability
Litigation (MDL926)."
"Capitalized Lease" shall mean, with respect to any Person, any lease
or any other agreement for the use of property which, in accordance with
generally accepted accounting principles, should be capitalized on the
lessee's or user's balance sheet.
"Capitalized Lease Obligation" of any Person shall mean and include,
as of any date as of which the amount thereof is to be determined, the
amount of the liability capitalized or disclosed (or which should be
disclosed) in a balance sheet of such Person in respect of a Capitalized
Lease of such Person.
"Casualty Event" shall mean, with respect to any property of any
Person, any loss of or damage to, or any condemnation or other taking of,
such property for which such Person or any of its Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other
compensation.
"Collateral" shall have the meaning assigned to that term in Section
2.01.
"Collateral Account" shall have the meaning assigned to that term in
Section 3.01.
"Copyright Collateral" shall mean all Copyrights, whether now owned or
hereafter acquired by the Obligor.
"Copyrights" shall mean, collectively, (a) all copyrights, copyright
registrations and applications for copyright registrations, (b) all
renewals and extensions of all copyrights, copyright registrations and
applications for copyright registration and (c) all rights, now existing or
hereafter coming into existence, (i) to all income, royalties, damages and
other payments (including in respect of all past, present or future
infringements) now or hereafter due or payable under or with respect to any
of the foregoing, (ii) to xxx for all past, present and future
infringements with respect to any of the foregoing and (iii) otherwise
accruing under or pertaining to any of the foregoing throughout the world.
"Documents" shall have the meaning assigned to that term in Section
2.01(f).
"Equipment" shall have the meaning assigned to that term in Section
2.01(e).
"Equity Rights" shall mean, with respect to any Person, any
outstanding subscriptions, options, warrants, commitments, preemptive
rights or agreements of any kind (including any stockholders' or voting
trust agreements) for the issuance, sale, registration or voting of, or
outstanding securities convertible into, any additional shares of capital
stock of any class, or partnership or other ownership interests of any type
in, such Person.
"Event of Default" shall mean each of the happenings or circumstances
enumerated in Section 7.1 of the Note Purchase Agreement.
"Holder" shall mean, at any time of reference, a Person in whose name
a Note is registered in the Note Register at such time.
"Indebtedness" shall mean, with respect to any Person, (i) all
obligations of such Person for borrowed money, or with respect to deposits
or advances of any kind, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (iii) all obligations of
such Person under conditional sale or other title retention agreements
relating to property purchased by such Person, (iv) all obligations of such
Person issued or assumed as the deferred purchase price of property or
services (other than accounts payable to suppliers and similar accrued
liabilities incurred in the ordinary course of business and paid in a
manner consistent with industry practice), (v) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any lien or security
interest on property owned or acquired by such Person whether or not the
obligations secured thereby have been assumed, (vi) all Capitalized Lease
Obligations of such Person, (vii) all guarantees of such Person, (viii) all
obligations (including but not limited to reimbursement obligations)
relating to the issuance of letters of credit for the account of such
Person, (ix) all obligations arising out of foreign exchange contracts, and
(x) all obligations arising out of interest rate and currency swap
agreements, cap, floor and collar agreements, interest rate insurance,
currency spot and forward contracts and other agreements or arrangements
designed to provide protection against fluctuations in interest or currency
exchange rates.
"Instruments" shall have the meaning assigned to that term in Section
2.01(c).
"Intellectual Property" means (a) all inventions (whether patentable
or unpatentable and whether or not reduced to practice), all improvements
thereon, and all Patents, patent applications and patent disclosures,
together with all reissuances, continuations, continuations-in-part,
revisions, extensions and reexaminations thereof, (b) all Trademarks,
service marks, trade dress, logos, trade names and corporate names,
together with all translations, adaptations, derivations and combinations
thereof and including all goodwill associated therewith, and all
applications, registrations and renewals in connection therewith, (c) all
copyrightable works, all Copyrights and all applications, registrations and
renewals in connection therewith, (d) all mask works and all applications,
registrations and renewals in connection therewith, (e) all trade secrets
and confidential business information (including ideas, research and
development, know-how, formulas, compositions, manufacturing and production
processes and techniques, technical data, designs, drawings,
specifications, customer and supplier lists, pricing and cost information
and business and marketing plans and proposals), (f) all computer software
(including data and related documentation), (g) all other proprietary
rights, (h) all copies and tangible embodiments of the foregoing (in
whatever form or medium) and (i) all licenses or agreements in connection
with the foregoing.
"Inventory" shall have the meaning assigned to that term in Section
2.01(d).
"Issuers" shall mean, collectively, each Subsidiary, directly or
indirectly, of the Obligor that is the issuer (as defined in the Uniform
Commercial Code) of any shares of capital stock now owned or hereafter
acquired by the Obligor.
"Loan Documents" shall mean the Note Purchase Agreement, the Notes,
this Agreement, the Guarantee and Security Agreement, dated as of the date
hereof, between certain Subsidiaries of the Obligor and the Collateral
Agent, the Guarantee Agreement, dated as of the date hereof, made by
certain Subsidiaries of the Obligor in favor of the Holders, the
Registration Rights Agreement, dated as of the date hereof, by and between
the Obligor and the Purchasers and the Intercreditor Agreement, dated as of
the date hereof, by and between the Collateral Agent and the Trustee.
"Loan Warrants" shall have the meaning assigned to that term in the
Recitals.
"Make-Whole Amount" shall have the meaning assigned to that term in
the Note Purchase Agreement.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the property, business, prospects (including, without limitation, the
prospects for the settlement of the Breast Implant Litigation), operations,
earnings, assets, liabilities or the condition (financial or otherwise) of
the Obligor and its Subsidiaries taken as a whole, whether or not in the
ordinary course of business, (b) the ability of the Obligor to perform its
obligations under any of the Loan Documents to which it is a party, (c) the
validity or enforceability of any of the Loan Documents, (d) the rights,
remedies, powers and privileges of the Holders under any of the Loan
Documents or (e) the timely payment of the Secured Obligations.
"Motor Vehicles" shall mean motor vehicles, tractors, trailers and
other like property, whether or not the title to any such property is
governed by a certificate of title or ownership.
"Note Register" shall have the meaning ascribed thereto in the Note
Purchase Agreement.
"Obligations" shall mean the principal and interest due under the
Notes and all other obligations and liabilities of the Obligor to the
Holders of every nature whatsoever now existing or hereafter arising,
including, without limitation, all prepayment premiums, indemnities,
reimbursement obligations, fees, costs and expenses, arising under or in
connection the Loan Documents (including, without limitation, any interest
accruing subsequent to (or that would accrue but for) the commencement of
any proceeding involving the bankruptcy, insolvency, reorganization,
liquidation, receivership or the like of the Obligor), and any and all
expenses which may be incurred by the Holders in collecting any or all of
the obligations of the Obligor under this Agreement and/or enforcing any
rights under this Agreement.
"Patent Collateral" shall mean all Patents, whether now owned or
hereafter acquired
by the Obligor.
"Patents" shall mean, collectively, (a) all patents and patent
applications, (b) all reissues, divisions, continuations, renewals,
extensions and continuations-in-part of all patents or patent applications
and (c) all rights, now existing or hereafter coming into existence, (i) to
all income, royalties, damages, and other payments (including in respect of
all past, present and future infringements) now or hereafter due or payable
under or with respect to any of the foregoing, (ii) to xxx for all past,
present and future infringements with respect to any of the foregoing and
(iii) otherwise accruing under or pertaining to any of the foregoing
throughout the world, including all inventions and improvements described
or discussed in all such patents and patent applications.
"Permitted Investments" shall mean (a) direct obligations of the
United States of America, or of any of its agencies, or obligations
guaranteed as to principal and interest by the United States of America, or
of any of its agencies, in either case maturing not more than 90 days from
the date of acquisition of such obligation; (b) deposit accounts in, and
certificates of deposit, repurchase agreements or bankers acceptances of
any bank or trust company organized under the laws of the United States of
America or any state or licensed to conduct a banking or trust business in
the United States of America or any state and having capital, surplus and
undivided profits of at least $35,000,000, maturing not more than 90 days
from the date of acquisition; (c) commercial paper rated A-1 or better or
P-1 by Standard & Poor's Corporation or Xxxxx'x Investors Services, Inc.,
respectively, maturing not more than 90 days from the date of acquisition;
and (d) money market funds sponsored by commercial or investment banks
unaffiliated with the Obligor.
"Person" shall mean any individual, firm, corporation, limited
liability company, partnership, company or other entity, and shall include
any successor (by merger or otherwise) of such entity.
"Pledged Debt" shall have the meaning assigned to that term in Section
2.01(a).
"Pledged Stock" shall have the meaning assigned to that term in
Section 2.01(a).
"SEC" shall mean the United States Securities and Exchange Commission.
"Secured Obligations" shall mean any and all obligations of the
Obligor at any time and from time to time for the performance of its
agreements, covenants and undertakings under or in respect of the Loan
Documents.
"Securities Collateral" means the Stock Collateral and the Pledged
Debt.
"Signing Date" shall mean the date on which the Obligor shall sign and
deliver this Agreement.
"Stock Collateral" shall have the meaning assigned to that term in
Section 2.01(a).
"Trademark Collateral" shall mean all Trademarks, whether now owned or
hereafter acquired by the Obligor. Notwithstanding the foregoing, the
Trademark Collateral shall not include any Trademark which would be
rendered invalid, abandoned, void or unenforceable by reason of its being
included as part of the Trademark Collateral.
"Trademarks" shall mean, collectively, (a) all trade names, trademarks
and service marks, logos, trademark and service xxxx registrations and
applications for trademark and service xxxx registrations, (b) all renewals
and extensions of any of the foregoing and (c) all rights, now existing or
hereafter coming into existence, (i) to all income, royalties, damages and
other payments (including in respect of all past, present and future
infringements) now or hereafter due or payable under or with respect to any
of the foregoing, (ii) to xxx for all past, present and future
infringements with respect to any of the foregoing and (iii) otherwise
accruing under or pertaining to any of the foregoing throughout the world,
together, in each case, with the product lines and goodwill of the business
connected with the use of, or otherwise symbolized by, each such trade
name, trademark and service xxxx.
"Trustee" shall mean Santa Xxxxxxx Bank & Trust.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as in
effect in the State of New York from time to time or, by reason of
mandatory application, any other applicable jurisdiction.
1.02 Interpretation. In this Agreement, unless otherwise indicated,
the singular includes the plural and plural the singular; words importing
either gender include the other gender; references to statutes or
regulations are to be construed as including all statutory or regulatory
provisions consolidating, amending or replacing the statute or regulation
referred to; references to "writing" include printing, typing, lithography
and other means of reproducing words in a tangible visible form; the words
"including," "includes" and "include" shall be deemed to be followed by the
words "without limitation"; references to articles, sections (or
subdivisions of sections), exhibits, annexes or schedules are to this
Agreement; references to agreements and other contractual instruments shall
be deemed to include all subsequent amendments, extensions and other
modifications to such instruments (without, however, limiting any
prohibition on any such amendments, extensions and other modifications by
the terms of any Loan Document); and references to Persons include their
respective permitted successors and assigns and, in the case of
governmental Persons, Persons succeeding to their respective functions and
capacities.
Article II. Collateral.
2.01 Grant. As collateral security for the prompt payment in full when
due (whether at stated maturity, by acceleration or otherwise) and
performance of the Secured Obligations, the Obligor hereby pledges and
grants to the Collateral Agent, for the ratable benefit of the Holders a
security interest in all of the Obligor's right, title and interest in and
to the following property, whether now owned or hereafter acquired by the
Obligor and whether now existing or hereafter coming into existence
including, without limitation, all real and personal property and interests
in real and personal property (collectively, the "Collateral"):
(a)(i) all of the shares of capital stock of the Issuers now
owned or hereafter acquired by the Obligor as set forth in Schedule 2.01
together with in each case the certificates representing the same
(collectively, the "Pledged Stock"); (ii) all shares, securities, moneys or
property representing a dividend on, or a distribution or return of capital
in respect of, any of the Pledged Stock, resulting from a split-up,
revision, reclassification or other like change of any of the Pledged Stock
or otherwise received in exchange for any of the Pledged Stock and all
Equity Rights issued to the holders of, or otherwise in respect of, any of
the Pledged Stock; and (iii) without affecting the obligations of the
Obligor under any provision prohibiting such action under any Loan
Document, in the event of any consolidation or merger in which any Issuer
is not the surviving corporation, all shares of each class of the capital
stock of the successor corporation (unless such successor corporation is
the Obligor itself) formed by or resulting from such consolidation or
merger (collectively, and together with the property described in clauses
(i) and (ii) above, the "Stock Collateral"); (iv) the Indebtedness
described in Annex I and issued by the obligors named therein (the "Pledged
Debt"); (v) all additional Indebtedness for money borrowed or for the
deferred purchase price of property from time to time owed to the Obligor
by any obligor of the Pledged Debt, and all additional Indebtedness in
excess of $25,000 for money borrowed or for the deferred purchase price of
property from time to time owed to the Obligor by any other Person who,
after the date of this Agreement, becomes, as a result of any occurrence, a
Subsidiary of the Obligor or an Affiliate of the Obligor (any such
Indebtedness being "Additional Debt"); (vi) all notes or other instruments
evidencing the Indebtedness referred to in clauses (iv) and (v) above;
(b) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of the Obligor constituting a right to the payment
of money, whether or not earned by performance, including all moneys due
and to become due to the Obligor in repayment of any loans or advances
(including loans and advances to Subsidiaries of the Obligor), in payment
for goods (including Inventory and Equipment) sold or leased or for
services rendered, in payment of tax refunds and in payment of any
guarantee of any of the foregoing (collectively, the "Accounts");
(c) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of the Obligor evidencing,
representing, arising from or existing in respect of, relating to, securing
or otherwise supporting the payment of, any of the Accounts (collectively,
the "Instruments");
(d) all inventory (as defined in the Uniform Commercial Code) and
all other goods (including Motor Vehicles) of the Obligor that are held by
the Obligor for sale, lease or furnishing under a contract of service
(including to its Subsidiaries or Affiliates), that are so leased or
furnished or that constitute raw materials, work in process or material
used or consumed in its business, including all spare parts and related
supplies, all goods obtained by the Obligor in exchange for any such goods,
all products made or processed from any such goods and all substances, if
any, commingled with or added to any such goods (collectively, the
"Inventory");
(e) all equipment (as defined in the Uniform Commercial Code) and
all other goods (including Motor Vehicles) of the Obligor that are used or
bought for use primarily in its business, including all spare parts and
related supplies, all goods obtained by the Obligor in exchange for any
such goods, all substances, if any, commingled with or added to such goods
and all upgrades and other improvements to such goods, in each case to the
extent not constituting Inventory (collectively, the "Equipment");
(f) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of the Obligor covering, evidencing or representing
Inventory or Equipment (collectively, the "Documents");
(g) all contracts and other agreements of the Obligor relating to
the sale or other disposition of all or any part of the Inventory,
Equipment or Documents and all rights, warranties, claims and benefits of
the Obligor against any Person arising out of, relating to or in connection
with all or any part of the Inventory, Equipment or Documents of the
Obligor, including any such rights, warranties, claims or benefits against
any Person storing or transporting any such Inventory or Equipment or
issuing any such Documents;
(h) all other accounts or general intangibles of the Obligor not
constituting Accounts, including, to the extent related to all or any part
of the other Collateral, all books, correspondence, credit files, records,
invoices, tapes, cards, computer runs and other papers and documents in the
possession or under the control of the Obligor or any computer bureau or
service company from time to time acting for the Obligor;
(i) the balance from time to time in the Collateral Account;
(j) all other tangible and intangible property of the Obligor,
including all Intellectual Property; and
(k) all proceeds and products in whatever form of all or any part
of the other Collateral, including all proceeds of insurance and all
condemnation awards and all other compensation for any Casualty Event with
respect to all or any part of the other Collateral (together with all
rights to recover and proceed with respect to the same), and all
accessories to, substitutions for and replacements of all or any part of
the other Collateral.
2.02 Intellectual Property. For the purpose of enabling the Collateral
Agent to exercise its rights, remedies, powers and privileges under Article
VI at such time or times as the Collateral Agent shall be lawfully entitled
to exercise such rights, remedies, powers and privileges, and for no other
purpose, the Obligor hereby grants to the Collateral Agent, to the extent
assignable, an irrevocable, nonexclusive license (exercisable without
payment of royalty or other compensation to the Obligor) to use, assign,
license or sublicense any of the Intellectual Property of the Obligor,
together with reasonable access to all media in which any of the licensed
items may be recorded or stored and to all computer programs used for the
compilation or printout of such items.
2.03 Perfection. Concurrently with the execution and delivery of this
Agreement, the Obligor shall (i) file such financing statements and other
documents in such offices as shall be necessary or as the Collateral Agent
may request to perfect and establish the first priority (subject only to
Liens permitted under Section 6.7 of the Note Purchase Agreement) of the
Liens granted by this Agreement (including promptly filing the Assignment
for Security--Trademarks and Patents, in the form executed on the date
hereof by the Obligor, in the United States Patent and Trademark Office),
(ii) deliver and pledge to the Collateral Agent any and all Instruments,
endorsed or accompanied by such instruments of assignment and transfer in
such form and substance as the Collateral Agent may request, (iii) cause
the Collateral Agent (to the extent requested by the Collateral Agent) to
be listed as the lienholder on all certificates of title or ownership
relating to Motor Vehicles owned by the Obligor and deliver to the
Collateral Agent originals of all such certificates of title or ownership
for the Motor Vehicles together with the odometer statements for each
respective Motor Vehicle, (iv) deliver and pledge to the Collateral Agent
all certificates for the Pledged Stock and notes, instruments or other
documents evidencing the Pledged Debt, accompanied by undated stock or bond
powers, as the case may be, duly executed in blank and (v) take all such
other actions as shall be necessary or as the Collateral Agent may request
to perfect and establish the first priority (subject only to such Permitted
Liens) of the Liens granted by this Agreement. The Collateral Agent shall
have the right, at any time in its discretion and with notice to the
Obligor, to transfer to or to register in its name or in the name of any of
its nominees any or all of the Pledged Stock or Pledged Debt.
2.04 Preservation and Protection of Security Interests. The Obligor
shall:
(a) upon the acquisition after the Signing Date by the Obligor of
any Securities Collateral, promptly either (x) transfer and deliver to the
Collateral Agent all such Securities Collateral (together with the
certificates or instruments representing such Securities Collateral
securities duly endorsed in blank or accompanied by undated powers duly
executed in blank) or (y) take such other action as the Collateral Agent
shall deem necessary or appropriate to perfect, and establish the priority
of, the Liens granted by this Agreement in such Securities Collateral;
(b) upon the acquisition after the Signing Date by the Obligor of
any Instrument, promptly deliver and pledge to the Collateral Agent all
such Instruments, endorsed or accompanied by such instruments of assignment
and transfer in such form and substance as the Collateral Agent may
request;
(c) upon the acquisition after the Signing Date by the Obligor of
any Equipment or Motor Vehicle covered by a certificate of title or
ownership, promptly cause the Collateral Agent to be listed as the
lienholder on such certificate of title and within 45 days of the
acquisition of such property deliver evidence of the same to the Collateral
Agent;
(d) upon the Obligor's acquiring, or otherwise becoming entitled
to the benefits of, any Copyright (or copyrightable material), Patent (or
patentable invention), Trademark (or associated goodwill) or other
Intellectual Property or upon or prior to the Obligor's filing, either
directly or through any agent, licensee or other designee, of any
application with any governmental Person for any Copyright, Patent,
Trademark, or other Intellectual Property, in each case after the Signing
Date, execute and deliver such contracts, agreements and other instruments
as the Collateral Agent may request to evidence, validate, perfect and
establish the first priority (subject only to Liens permitted under Section
6.7 of the Note Purchase Agreement) of the Liens granted by this Agreement
in such and any related Intellectual Property; and
(e) give, execute, deliver, file or record any and all financing
statements, notices, contracts, agreements or other instruments, obtain any
and all governmental approvals and take any and all steps that may be
necessary or as the Collateral Agent may request to create, perfect,
establish the first priority (subject only to Liens permitted under Section
6.7 of the Note Purchase Agreement) of, or to preserve the validity,
perfection or first priority (subject only to such Permitted Liens) of, the
Liens granted by this Agreement or to enable the Collateral Agent to
exercise and enforce its rights, remedies, powers and privileges under this
Agreement with respect to such Liens, including causing any or all of the
Securities Collateral to be transferred of record into the name of the
Collateral Agent or its nominee (and the Collateral Agent agrees that if
any Securities Collateral is transferred into its name or the name of its
nominee, the Collateral Agent will thereafter promptly give to the Obligor
copies of any notices and communications received by it with respect to the
Stock Collateral pledged by the Obligor), provided that notices to account
debtors in respect of any Accounts or Instruments shall be subject to the
provisions of Section 3.02(b).
2.05 Attorney-in-Fact. (a) Subject to the rights of the Obligor under
Sections 2.06, 2.07, 2.08 and 2.09, the Collateral Agent is hereby
appointed the attorney-in-fact of the Obligor for the purpose of carrying
out the provisions of this Agreement and taking any action and executing
any instruments which the Collateral Agent may deem necessary or advisable
to accomplish the purposes of this Agreement, to preserve the validity,
perfection and first priority (subject only to Liens permitted under
Section 6.7 of the Note Purchase Agreement) of the Liens granted by this
Agreement and, following any Default, to exercise its rights, remedies,
powers and privileges under this Agreement. This appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without
limiting the generality of the foregoing, the Collateral Agent shall be
entitled under this Agreement upon the occurrence and continuation of any
Event of Default (or, in respect of Section 3.02(b), any Default) (i) to
ask, demand, collect, xxx for, recover, receive and give receipt and
discharge for amounts due and to become due under and in respect of all or
any part of the Collateral; (ii) to receive, endorse and collect any
Instruments or other drafts, instruments, documents and chattel paper in
connection with clause (i) above (including any draft or check representing
the proceeds of insurance or the return of unearned premiums); (iii) to
file any claims or take any action or proceeding that the Collateral Agent
may deem necessary or advisable for the collection of all or any part of
the Collateral, including the collection of any compensation due and to
become due under any contract or agreement with respect to all or any part
of the Collateral; and (iv) to execute, in connection with any sale or
disposition of the Collateral under Article VI, any endorsements,
assignments, bills of sale or other instruments of conveyance or transfer
with respect to all or any part of the Collateral. In any suit, proceeding
or action brought by the Collateral Agent relating to any Account, contract
or Instrument for any sum owing thereunder, or to enforce any provision of
any Account, contract or Instrument, the Obligor will save, indemnify and
keep the Collateral Agent harmless from and against all expense, loss or
damage suffered by reason of any defense, set-off, counterclaim, recoupment
or reduction or liability whatsoever of the obligor thereunder, arising out
of a breach by the Obligor of any obligation thereunder or arising out of
any other agreement, Indebtedness or liability at any time owing to, or in
favor of, such obligor or its successors from the Obligor, and all such
obligations of the Obligor shall be and remain enforceable against and only
against the Obligor and shall not be enforceable against the Collateral
Agent.
(b) Without limiting the rights and powers of the Collateral
Agent under Section 2.05(a), the Obligor hereby appoints the Collateral
Agent as its attorney-in-fact, effective the Signing Date and terminating
upon the termination of this Agreement, for the purpose of (i) executing on
behalf of the Obligor title or ownership applications for filing with
appropriate state agencies to enable Motor Vehicles now owned or hereafter
acquired by the Obligor to be retitled and the Collateral Agent to be
listed as lienholder as to such Motor Vehicles, (ii) filing such
applications with such state agencies and (iii) executing such other
documents and instruments on behalf of, and taking such other action in the
name of, the Obligor as the Collateral Agent may deem necessary or
advisable to accomplish the purposes of this Agreement (including the
purpose of creating in favor of the Collateral Agent a first priority
perfected lien on the Motor Vehicles and exercising the rights and remedies
of the Collateral Agent under Article VI). This appointment as
attorney-in-fact is irrevocable and coupled with an interest.
(c) Without limiting the rights and powers of the Collateral
Agent under Section 2.05(a), the Obligor hereby appoints the Collateral
Agent as its attorney-in-fact, effective the Signing Date and terminating
upon the termination of this Agreement, for the purpose of executing and
filing all such contracts, agreements and other documents as are
contemplated by Section 2.04(d). This appointment as attorney-in-fact is
irrevocable and coupled with an interest.
2.06 Special Provisions Relating to Securities Collateral. (a) So long
as no Event of Default shall have occurred and be continuing, the Obligor
shall have the right to exercise all voting, consensual and other powers of
ownership pertaining to the Securities Collateral for all purposes not
inconsistent with the terms of any Loan Document, provided that the Obligor
agrees that it will not vote the Securities Collateral in any manner that
is inconsistent with the terms of any Loan Document; and the Collateral
Agent shall, at the Obligor' expense, execute and deliver to the Obligor or
cause to be executed and delivered to the Obligor all such proxies, powers
of attorney, dividends and other orders and other instruments, without
recourse, as the Obligor may reasonably request for the purpose of enabling
the Obligor to exercise the rights and powers which it is entitled to
exercise pursuant to this Section 2.06(a).
(b) So long as no Event of Default shall have occurred and be
continuing, the Obligor shall be entitled to receive and retain any
dividends or distributions on the Securities Collateral paid in cash.
(c) If any Event of Default shall have occurred and be
continuing, and whether or not the Holders or the Collateral Agent exercise
any available right to declare any Secured Obligation due and payable or
seek or pursue any other right, remedy, power or privilege available to
them under applicable law, this Agreement or any other Loan Document, all
dividends and other distributions on the Securities Collateral shall be
paid directly to the Collateral Agent and retained by it in the Collateral
Account as part of the Securities Collateral, subject to the terms of this
Agreement, and, if the Collateral Agent shall so request, the Obligor
agrees to execute and deliver to the Collateral Agent appropriate
additional dividend, distribution and other orders and instruments to that
end, provided that if such Event of Default is cured, any such dividend or
distribution paid to the Collateral Agent prior to such cure shall, upon
request of the Obligor (except to the extent applied to the Secured
Obligations), be returned by the Collateral Agent to the Obligor.
2.07 Use of Intellectual Property. Subject to such action not
otherwise constituting a Default and so long as no Event of Default shall
have occurred and be continuing, the Obligor will be permitted to exploit,
use, enjoy, protect, license, sublicense, assign, sell, dispose of or take
other actions with respect to the Intellectual Property in the ordinary
course of the business of the Obligor. In furtherance of the foregoing, so
long as no Event of Default shall have occurred and be continuing, the
Collateral Agent shall from time to time, upon the request of the Obligor,
execute and deliver any instruments, certificates or other documents, in
the form so requested, which the Obligor shall have certified are
appropriate (in its reasonable judgment) to allow it to take any action
permitted above (including relinquishment of the license provided pursuant
to Section 2.02 as to any specific Intellectual Property). The exercise of
rights, remedies, powers and privileges under Article VI by the Collateral
Agent shall not terminate the rights of the holders of any licenses or
sublicenses theretofore granted by the Obligor in accordance with the first
sentence of this Section 2.07.
2.08 Instruments. So long as no Default or Event of Default shall have
occurred and be continuing, the Obligor may retain for collection in the
ordinary course of business any Instruments obtained by it in the ordinary
course of business, and the Collateral Agent shall, promptly upon the
request, and at the expense of the Obligor, make appropriate arrangements
for making any Instruments pledged by the Obligor available to the Obligor
for purposes of presentation, collection or renewal. Any such arrangement
shall be effected, to the extent deemed appropriate by the Collateral
Agent, against trust receipt or like document.
2.09 Use of Collateral. So long as no Event of Default shall have
occurred and be continuing, the Obligor shall, in addition to its rights
under Sections 2.06, 2.07 and 2.08 hereof and Section 6.17 of the Note
Purchase Agreement, in respect of the Collateral contemplated in those
sections, be entitled to use and possess the other Collateral and to
exercise its rights, title and interest in all contracts, agreements,
licenses and governmental approvals, subject to the rights, remedies,
powers and privileges of the Collateral Agent under Articles III and VI and
to such use, possession or exercise not otherwise constituting a Default.
2.10 Rights and Obligations. (a) The Obligor shall remain liable to
perform its duties and obligations under the contracts and agreements
included in the Collateral in accordance with their respective terms to the
same extent as if this Agreement had not been executed and delivered. The
exercise by the Collateral Agent of any right, remedy, power or privilege
in respect of this Agreement shall not release the Obligor from any of its
duties and obligations under such contracts and agreements and the Obligor
shall save, indemnify and keep the Collateral Agent harmless from and
against all expense, loss or damage suffered by reason of such exercise.
The Collateral Agent shall have no duty, obligation or liability under such
contracts and agreements or with respect to any governmental approval
included in the Collateral by reason of this Agreement or any other Loan
Document, nor shall the Collateral Agent be obligated to perform any of the
duties or obligations of the Obligor under any such contract or agreement
or any such governmental approval or to take any action to collect or
enforce any claim (for payment) under any such contract or agreement or
governmental approval.
(b) No Lien granted by this Agreement in the Obligor's right,
title and interest in any contract, agreement or governmental approval
shall be deemed to be a consent by the Collateral Agent to any such
contract, agreement or governmental approval.
(c) No reference in this Agreement to proceeds or to the sale or
other disposition of Collateral shall authorize the Obligor to sell or
otherwise dispose of any Collateral except to the extent otherwise
expressly permitted by the terms of any Loan Document.
(d) The Collateral Agent shall not be required to take steps
necessary to preserve any rights against prior parties to any part of the
Collateral.
2.11 Release of Motor Vehicles. So long as no Default shall have
occurred and be continuing, upon the request of, and at the expense of, the
Obligor, the Collateral Agent shall execute and deliver to the Obligor such
instruments as the Obligor shall reasonably request to remove the notation
of the Collateral Agent as lienholder on any certificate of title for any
Motor Vehicle; provided that any such instruments shall be delivered, and
the release shall be effective, only upon receipt by the Collateral Agent
of a certificate from the Obligor stating that the Motor Vehicle the Lien
on which is to be released is to be sold or has suffered a casualty loss
(with title passing to the appropriate casualty insurance company in
settlement of the claim for such loss).
2.12 Termination. When all Secured Obligations shall have been
indefeasibly paid in full, this Agreement shall terminate, and the
Collateral Agent shall, at the expense of the Obligor, forthwith cause to
be assigned, transferred and delivered, against receipt but without any
recourse, warranty or representation whatsoever, any remaining Collateral
and money received in respect of the Collateral, to or on the order of the
Obligor and to be released, canceled and granted back all licenses and
rights referred to in Section 2.02. The Collateral Agent shall also, at the
expense of the Obligor, execute and deliver to the Obligor upon such
termination such Uniform Commercial Code termination statements,
certificates for terminating the Liens on the Motor Vehicles and such other
documentation as shall be reasonably requested by the Obligor to effect the
termination and release of the Liens granted by this Agreement on the
Collateral.
Article III. Cash Proceeds of Collateral.
3.01 Collateral Account. There is hereby established with the
Collateral Agent a cash collateral account (the "Collateral Account") in
the name and under the exclusive domain and control of the Collateral Agent
into which there shall be deposited from time to time the cash proceeds of
any of the Collateral (including proceeds resulting from insurance or
condemnation) required to be delivered to the Collateral Agent pursuant to
this Agreement and into which the Obligor may from time to time deposit any
additional amounts which it wishes to pledge to the Collateral Agent as
additional collateral security under this Agreement. The balance from time
to time in the Collateral Account shall constitute part of the Collateral
and shall not constitute payment of the Secured Obligations until applied
as provided in this Agreement. If any Event of Default shall have occurred
and be continuing, the Collateral Agent may in its discretion apply
(subject to collection) the balance from time to time outstanding to the
credit of the Collateral Account to the payment of the Secured Obligations
in the manner specified in Article VI. The balance from time to time in the
Collateral Account shall be subject to withdrawal only as provided in this
Agreement.
3.02 Certain Proceeds. (a) If any Default or Event of Default shall
have occurred and be continuing, the Obligor shall, upon request of the
Collateral Agent, promptly notify (and the Obligor hereby authorizes the
Collateral Agent so to notify) each account debtor in respect of any
Accounts or Instruments that such Collateral has been assigned to the
Collateral Agent under this Agreement and that any payments due or to
become due in respect of such Collateral are to be made directly to the
Collateral Agent. All such payments made to the Collateral Agent shall be
immediately deposited in the Collateral Account.
(b) The Obligor agrees that if the proceeds of any Collateral
(including payments made in respect of Accounts and Instruments) shall be
received by it following the occurrence and during the continuation of a
Default, the Obligor shall as promptly as possible deposit such proceeds
into the Collateral Account. Until so deposited, all such proceeds shall be
held in trust by the Obligor for and as the property of the Collateral
Agent and shall not be commingled with any other funds or property of the
Obligor.
3.03 Investment of Balance in Collateral Account. Amounts on deposit
in the Collateral Account shall be invested from time to time in such
Permitted Investments as the Obligor (or, if any Default or Event of
Default shall have occurred and be continuing, the Collateral Agent) shall
determine. All such investments shall be held in the name and be under the
control of the Collateral Agent. At any time after the occurrence and
during the continuance of an Event of Default, the Collateral Agent may in
its discretion at any time and from time to time elect to liquidate any
such investments and to apply or cause to be applied the proceeds of such
action to the payment of the Secured Obligations in the manner specified in
Article VI.
Article IV. Representations and Warranties.
The Obligor hereby represents and warrants to the Collateral Agent for
the benefit of the Holders as follows:
4.01 Title. The Obligor is the sole beneficial owner of the Collateral
in which it purports to xxxxx x Xxxx pursuant to this Agreement, and,
except as set forth in Schedule 4.01, such Collateral is free and clear of
all Liens. The first priority Liens granted by this Agreement in favor of
the Collateral Agent for the benefit of the Collateral Agent and the
Holders have attached and, upon filing of the respective financing
statements in the jurisdictions listed on Annex II, this Agreement is
effective to create a perfected first priority security interest in all of
such Collateral prior to all other Liens. With respect to the Pledged
Stock, the Pledged Debt and the cash in the Collateral Account, the pledge
of such Collateral pursuant to this Agreement creates a valid and perfected
first priority security interest in such Collateral in favor of the
Collateral Agent for the benefit of the Holders.
4.02 Securities Collateral. (a) The Pledged Stock presently owned by
the Obligor is duly authorized, validly existing, fully paid and
nonassessable, and none of such Pledged Stock is subject to any contractual
restriction, or any restriction under the charter or by-laws of the
respective Issuer of such Pledged Stock, upon the transfer of such Pledged
Stock (except for any such restriction contained in any Loan Document). The
Pledged Debt pledged by the Obligor has been duly authorized, authenticated
or issued and delivered, and is the legal, valid and binding obligation of
the issuers thereof, and is not in default. The Pledged Debt constitutes
all of the outstanding Indebtedness for money borrowed or for the deferred
purchase price of property owed to the Obligor by any of its Subsidiaries
or Affiliates.
(b) The Pledged Stock pledged by the Obligor constitutes all of
the issued and outstanding shares of capital stock of any class of the
Issuers beneficially owned by the Obligor on the Signing Date (whether or
not registered in the name of the Obligor).
4.03 Intellectual Property. (a) Except pursuant to licenses and other
user agreements entered into by the Obligor in the ordinary course of
business, the Obligor owns and possesses the right to use, and has done
nothing to authorize or enable any other Person to use, any Copyright,
Patent or Trademark constituting Intellectual Property.
(b) The Obligor owns any Trademarks registered in the United
States of America to which the last sentence of the definition of Trademark
Collateral applies.
4.04 Goods. Any goods now or hereafter manufactured or otherwise
produced by the Obligor or any of its Subsidiaries included in the
Collateral have been and will be produced in compliance with the
requirements of the Fair Labor Standards Act.
Article V. Covenants.
5.01 Books and Records. The Obligor shall: (a) keep full and accurate
books and records relating to the Collateral and stamp or otherwise xxxx
such books and records in such manner as the Collateral Agent may
reasonably require in order to reflect the Liens granted by this Agreement;
(b) furnish to the Collateral Agent from time to time (but, unless a
Default shall have occurred and be continuing, no more frequently than
quarterly) statements and schedules further identifying and describing the
Copyright Collateral, the Patent Collateral and the Trademark Collateral
and such other reports in connection with the Copyright Collateral, the
Patent Collateral and the Trademark Collateral, as the Collateral Agent may
reasonably request, all in reasonable detail; (c) prior to filing, either
directly or through an agent, licensee or other designee, any application
for any Copyright, Patent or Trademark, furnish to the Collateral Agent
prompt notice of such proposed filing; and (d) permit representatives of
the Collateral Agent, upon reasonable notice, at any time during normal
business hours to inspect and make abstracts from its books and records
pertaining to the Collateral, permit representatives of the Collateral
Agent to be present at the Obligor's place of business to receive copies of
all communications and remittances relating to the Collateral and forward
copies of any notices or communications received by the Obligor with
respect to the Collateral, all in such manner as the Collateral Agent may
reasonably request.
5.02 Removals, Etc. Without at least 30 days' prior written notice to
the Collateral Agent, the Obligor shall (i) not maintain any of its books
and records with respect to the Collateral at any office or maintain its
principal place of business at any place, or permit any Inventory or
Equipment to be located anywhere, other than (a) at the address initially
indicated for notices to it under Article VII, (b) at one of the other
business locations presently owned or operated by the Obligor or any of its
Affiliates and identified in Annex II or III or (c) in transit from one of
such locations to another, or (ii) change its corporate name, or the name
under which it does business, from the name shown on the signature pages to
this Agreement, provided that the Company shall be permitted to consummate
the reincorporation merger whereby the Company would merge with a Delaware
Subsidiary of the Company to change the Company's state of incorporation
from Florida to Delaware (as described in the Notice of Special Meeting of
Stockholders and Proxy Statement filed by the Company with the SEC on
September 18, 1998).
5.03 Stock Collateral. The Obligor will cause the Stock Collateral to
constitute at all times 100% of the total number of shares of each class of
capital stock of each Issuer then outstanding. The Obligor shall cause all
such shares to be duly authorized, validly issued, fully paid and
nonassessable and to be free of any contractual restriction or any
restriction under the charter or bylaws of the respective Issuer of such
Stock Collateral, upon the transfer of such Stock Collateral (except for
any such restriction contained in any Loan Document). The Obligor agrees
that it will (i) cause each issuer of the Pledged Stock not to issue any
shares of stock or other securities in addition to or in substitution for
the Pledged Stock, (ii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all additional shares of capital
stock issued to the Obligor (the "Additional Stock") and any and all
Additional Debt, and (iii) promptly (and in any event within three business
days) deliver to the Collateral Agent an amendment to this Agreement, duly
executed by the Obligor, in respect of the Additional Shares or Additional
Debt, together with all certificates, notes or other instruments
representing or evidencing the same. The Obligor agrees that all Additional
Shares and Additional Debt listed on any such amendment delivered to the
Collateral Agent shall for all purposes hereunder constitute Pledged Stock
and Pledged Debt, respectively, and (iii) is deemed to have made, upon such
delivery, the representations and warranties contained in Article IV hereof
with respect to such Collateral.
5.04 Intellectual Property. (a) The Obligor (either itself or through
licensees) will, for each Trademark, (i) to the extent consistent with past
practice and good business judgment, continue to use such Trademark on each
and every trademark class of goods applicable to its current line as
reflected in its current catalogs, brochures and price lists in order to
maintain such Trademark in full force and effect free from any claim of
abandonment for nonuse, (ii) maintain as in the past the quality of
products and services offered under such Trademark, (iii) employ such
Trademark with the appropriate notice of registration and (iv) not (and not
permit any licensee or sublicensee to) do any act or knowingly omit to do
any act whereby any Trademark material to the conduct of its business may
become invalidated.
(b) The Obligor (either itself or through licensees) will not do
any act or knowingly omit to do any act whereby any Patent material to the
conduct of its business may become abandoned or dedicated.
(c) The Obligor shall notify the Collateral Agent immediately if
it knows or has reason to know that any Intellectual Property material to
the conduct of its business may become abandoned or dedicated, or of any
adverse determination or development (including the institution of, or any
such determination or development in, any proceeding before any
governmental Person) regarding the Obligor's ownership of any Intellectual
Property material to its business, its right to copyright, patent or
register the same (as the case may be), or its right to keep, use and
maintain the same.
(d) The Obligor will take all necessary steps that are consistent
with good business practices in any proceeding before any appropriate
governmental Person to maintain and pursue each application relating to any
Intellectual Property (and to obtain the relevant registrations) and to
maintain each registration material to the conduct of its business,
including payment of maintenance fees, filing of applications for renewal,
affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings.
(e) In the event that any Intellectual Property material to the
conduct of its business is infringed, misappropriated or diluted by a third
party, the Obligor shall notify the Collateral Agent within ten days after
it learns of such event and shall, if consistent with good business
practice, promptly xxx for infringement, misappropriation or dilution, seek
temporary restraints and preliminary injunctive relief to the extent
practicable, seek to recover any and all damages for such infringement,
misappropriation or dilution and take such other actions as are appropriate
under the circumstances to protect such Collateral.
(f) The Obligor shall prosecute diligently any application for
any Intellectual Property pending as of the date of this Agreement or
thereafter made until the termination of this Agreement, make application
on uncopyrighted but copyrightable material, unpatented but patentable
inventions and unregistered but registerable Trademarks and preserve and
maintain all rights in applications for any Intellectual Property;
provided, however, that the Obligor shall have no obligation to make any
such application if making such application would be unnecessary or
imprudent in the good faith business judgment of the Obligor. Any expenses
incurred in connection with such an application shall be borne by the
Obligor.
(g) The Collateral Agent shall have the right but shall in no way
be obligated to bring suit in its own name to enforce the Copyrights,
Patents and Trademarks and any license under such Intellectual Property, in
which event the Obligor shall, at the request of the Collateral Agent, do
any and all lawful acts and execute and deliver any and all proper
documents required by the Collateral Agent in aid of such enforcement
action.
Article VI. Remedies.
6.01 Events of Default, Etc. If any Event of Default shall have
occurred and be continuing:
(a) the Collateral Agent in its discretion may require the
Obligor to, and the Obligor shall, assemble the Collateral owned by it at
such place or places, reasonably convenient to both the Collateral Agent
and the Obligor, designated in the Collateral Agent's request;
(b) the Collateral Agent in its discretion may make any
reasonable compromise or settlement it deems desirable with respect to any
of the Collateral and may extend the time of payment, arrange for payment
in installments, or otherwise modify the terms of, all or any part of the
Collateral;
(c) the Collateral Agent in its discretion may, in its name or in
the name of the Obligor or otherwise, demand, xxx for, collect or receive
any money or property at any time payable or receivable on account of or in
exchange for all or any part of the Collateral, but shall be under no
obligation to do so;
(d) the Collateral Agent in its discretion may, upon five
business days' prior written notice to the Obligor of the time and place,
with respect to all or any part of the Collateral which shall then be or
shall thereafter come into the possession, custody or control of the
Collateral Agent, or its agents, sell, lease or otherwise dispose of all or
any part of such Collateral, at such place or places as the Collateral
Agent deems best, for cash, for credit or for future delivery (without
thereby assuming any credit risk) and at public or private sale, without
demand of performance or notice of intention to effect any such disposition
or of time or place of any such sale (except such notice as is required
above or by applicable statute and cannot be waived), and the Collateral
Agent or any other Person may be the purchaser, lessee or recipient of any
or all of the Collateral so disposed of at any public sale (or, to the
extent permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of the Obligor, any
such demand, notice and right or equity being hereby expressly waived and
released. In the event of any sale, license or other disposition of any of
the Trademark Collateral, the goodwill connected with and symbolized by the
Trademark Collateral subject to such disposition shall be included, and the
Obligor shall supply to the Collateral Agent or its designee, for inclusion
in such sale, assignment or other disposition, all Intellectual Property
relating to such Trademark Collateral. The Collateral Agent may, without
notice or publication, adjourn any public or private sale or cause the same
to be adjourned from time to time by announcement at the time and place
fixed for the sale, and such sale may be made at any time or place to which
the sale may be so adjourned; and
(e) the Collateral Agent shall have, and in its discretion may
exercise, all of the rights, remedies, powers and privileges with respect
to the Collateral of a secured party under the Uniform Commercial Code
(whether or not the Uniform Commercial Code is in effect in the
jurisdiction where such rights, remedies, powers and privileges are
asserted) and such additional rights, remedies, powers and privileges to
which a secured party is entitled under the laws in effect in any
jurisdiction where any rights, remedies, powers and privileges in respect
of this Agreement or the Collateral may be asserted, including the right,
to the maximum extent permitted by law, to exercise all voting, consensual
and other powers of ownership pertaining to the Collateral as if the
Collateral Agent were the sole and absolute owner of the Collateral (and
the Obligor agrees to take all such action as may be appropriate to give
effect to such right).
The proceeds of, and other realization upon, the Collateral by
virtue of the exercise of remedies under this Section 6.01 and of the
exercise of the license granted to the Collateral Agent in Section 2.02
shall be applied in accordance with Section 6.04.
6.02 Deficiency. If the proceeds of, or other realization upon, the
Collateral by virtue of the exercise of remedies under Section 6.01 and of
the exercise of the license granted to the Collateral Agent in Section 2.02
are insufficient to cover the costs and expenses (including attorneys fees)
of such exercise and the payment in full of the other Secured Obligations,
the Obligor shall remain liable for any deficiency.
6.03 Private Sale. (a) The Collateral Agent shall incur no liability
as a result of the sale, lease or other disposition of all or any part of
the Collateral at any private sale pursuant to Section 6.01 conducted in a
commercially reasonable manner. The Obligor hereby waives any claims
against the Collateral Agent arising by reason of the fact that the price
at which the Collateral may have been sold at such a private sale was less
than the price which might have been obtained at a public sale or was less
than the aggregate amount of the Secured Obligations, even if the
Collateral Agent accepts the first offer received and does not offer the
Collateral to more than one offeree.
(b) The Obligor recognizes that, by reason of certain
prohibitions contained in the Securities Act and applicable state
securities laws, the Collateral Agent may be compelled, with respect to any
sale of all or any part of the Collateral, to limit purchasers to those who
will agree, among other things, to acquire the Collateral for their own
account, for investment and not with a view to distribution or resale. The
Obligor acknowledges that any such private sales may be at prices and on
terms less favorable to the Collateral Agent than those obtainable through
a public sale without such restrictions, and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have
been made in a commercially reasonable manner and that the Collateral Agent
shall have no obligation to engage in public sales and no obligation to
delay the sale of any Collateral for the period of time necessary to permit
the respective Issuer of such Collateral to register it for public sale.
6.04 Application of Proceeds. Except as otherwise expressly provided
in this Agreement and except as provided below in this Section 6.04, the
proceeds of, or other realization upon, all or any part of the Collateral
by virtue of the exercise of remedies under Section 6.01 or of the exercise
of the license granted in Section 2.02, and any other cash at the time held
by the Collateral Agent under Article III or this Article VI, shall be
applied by the Collateral Agent:
First, to the payment of the costs and expenses of such exercise of
remedies, including reasonable out-of-pocket costs and expenses of the
Collateral Agent, the fees and expenses of its agents and counsel and all
other expenses incurred and advances made by the Collateral Agent in that
connection;
Second, to the Collateral Agent for amounts due and unpaid on the
Notes for principal and interest and all other amounts due and unpaid under
the Loan Documents including the Make-Whole Amount; and
Third, to the Obligor or any other obligor on the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
As used in this Article VI, "proceeds" of Collateral shall mean cash,
securities and other property realized in respect of, and distributions in
kind of, Collateral, including any property received under any bankruptcy,
reorganization or other similar proceeding as to the Obligor or any issuer
of, or account debtor or other obligor on, any of the Collateral.
Article VII. Miscellaneous.
7.01 Waiver. No failure on the part of the Collateral Agent or any
Holder to exercise and no delay in exercising, and no course of dealing
with respect to, any right, remedy, power or privilege under this Agreement
shall operate as a waiver of such right, remedy, power or privilege, nor
shall any single or partial exercise of any right, remedy, power or
privilege under this Agreement preclude any other or further exercise of
any such right, remedy, power or privilege or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and
privileges provided in this Agreement are cumulative and not exclusive of
any rights, remedies, powers and privileges provided by law.
7.02 Notices. All notices and communications to be given under this
Agreement shall be deemed given, if in writing and delivered personally, by
telecopy or sent by registered mail, postage prepaid to:
if to the Obligor: Inamed Corporation
0000 Xxxxxx Xxxxxx Xxxxxxx, #000
Xxx Xxxxx, Xxxxxx
Attention: Xxxx Xxxxx
if to the Collateral Agent: Appaloosa Management, L.P.
00 Xxxx Xx., 0xx Xxxxx
Xxxxxxx, N.J. 07928
Attention: Xxxxx Xxxxx
7.03 Expenses, Etc. The Obligor agrees to pay or to reimburse the
Collateral Agent for all costs and expenses (including reasonable
attorney's fees and expenses) that may be incurred by the Collateral Agent
in any effort to enforce any of the provisions of Article VI, or any of the
obligations of the Obligor in respect of the Collateral or in connection
with (a) the preservation of the Lien of, or the rights of the Collateral
Agent under this Agreement or (b) any actual or attempted sale, lease,
disposition, exchange, collection, compromise, settlement or other
realization in respect of, or care of, the Collateral, including all such
costs and expenses (and reasonable attorney's fees and expenses) incurred
in any bankruptcy, reorganization, workout or other similar proceeding.
7.04 Amendments. This Agreement may be amended as to the Collateral
Agent and its respective successors and assigns, and the Obligor may take
any action herein prohibited, or omit to perform any act required to be
performed by it, if the Obligor shall obtain the written consent of the
Collateral Agent. This Agreement may not be waived, changed, modified, or
discharged orally, but only by an agreement in writing signed by the party
or parties against whom enforcement of any waiver, change, modification or
discharge is sought or by parties with the right to consent to such waiver,
change, modification or discharge on behalf of such party.
7.05 Successors and Assigns. All covenants and agreements contained
herein shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
7.06 Survival. All covenants, agreements, representations and
warranties contained herein and in any certificates delivered pursuant
hereto in connection with the transactions contemplated hereby shall
survive the Closing and the delivery of the Loan Documents, regardless of
any investigation made by or on behalf of any party.
7.07 Agreements Superseded. Except with respect to express references
to other Loan Documents, this Agreement supersedes all prior agreements and
understandings, written or oral, among the parties with respect to the
subject matter of this Agreement.
7.08 Severability. If any term, provision, covenant or restriction of
this Agreement or any exhibit hereto is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement and such
exhibits shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. It is hereby stipulated and declared to
be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable.
7.09 Captions. The table of contents and captions and section headings
appearing in this Agreement are included solely for convenience of
reference and are not intended to affect the interpretation of any
provision of this Agreement.
7.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been
signed by each party and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
7.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW
OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A
JURISDICTION OTHER THAN SUCH STATE.
7.12 Submission to Jurisdiction. If any action, proceeding or
litigation shall be brought by the Collateral Agent in order to enforce any
right or remedy under this Agreement, the Obligor hereby consents and will
submit, and will cause each of its Subsidiaries to submit, to the
jurisdiction of any state or federal court of competent jurisdiction
sitting within the area comprising the Southern District of New York on the
date of this Agreement. The Obligor hereby irrevocably waives any
objection, including, but not limited to, any objection to the laying of
venue or based on the grounds of forum non conveniens, which it may now or
hereafter have to the bringing of any such action, proceeding or litigation
in such jurisdiction.
7.13. Service of Process. Nothing herein shall affect the right of the
Collateral Agent to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against the Obligor in
any other jurisdiction.
7.14. WAIVER OF JURY TRIAL. THE OBLIGOR HEREBY WAIVES ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS
AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
INAMED CORPORATION
By: /s/ Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: Executive V.P.
APPALOOSA MANAGEMENT, L.P.
By: /s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title:
