EXHIBIT 10.57
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
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(USA Industries, Incorporated)
THIS AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT ("Agreement")
dated as of May 17, 2000, is by and between USA INDUSTRIES, INCORPORATED, an
Alabama corporation ("Debtor"), whose address is ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and whose Tax I.D. No. is ▇▇-▇▇▇▇▇▇▇, and THE
▇▇▇▇▇▇▇▇▇ FOUNDATION ("Secured Party") whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
R E C I T A L S:
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A. Karts International Incorporated ("Borrower") is, concurrently
herewith, entering into that certain Amended and Restated Loan Agreement dated
as of May 17, 2000, with the Secured Party (such agreement, as it may be
amended, renewed, extended, restated, replaced, substituted, supplemented or
otherwise modified from time to time, is referred to herein as the "Loan
Agreement").
B. The execution and delivery of this Agreement is required by the
terms of the Loan Agreement and is a condition to the availability of the Loan
to Borrower pursuant to the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, and in order to induce the Secured Party to make the Loan
under the Loan Agreement, the parties hereto hereby agree as follows:
ARTICLE 1
Definitions
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Section 1.1 Definitions. As used in this Agreement, the following terms
have the following meanings:
"Account" means any "account", as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor and, in any event, shall include, without limitation, each of
the following, whether now owned or hereafter acquired by Debtor: (a)
all rights of Debtor to payment for goods sold or leased, services
rendered or the license of Intellectual Property, whether or not earned
by performance; (b) all accounts receivable of Debtor; (c) all rights
of Debtor to receive any payment of money or other form of
consideration; (d) all security pledged, assigned or granted to or held
by Debtor to secure any of the foregoing; (e) all guaranties of, or
indemnifications with respect to, any of the foregoing; (f) all rights
of Debtor as an unpaid seller of goods or services, including, but not
limited to, all rights of stoppage in transit, replevin, reclamation
and resale; and (g) all rights to brokerage commissions.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 1
"Broker" means any "broker," as such term is defined in
Article or Chapter 8 of the UCC, and in any event shall include, but
not be limited to, any Person defined as a broker or dealer under the
federal securities laws, but without excluding a bank acting in that
capacity.
"Capital Stock" means corporate stock and any and all
securities, shares, partnership interests, limited partnership
interests, limited liability company interests, membership interests,
equity interests, participations, rights or other equivalents (however
designated) of corporate stock or any of the foregoing issued by any
entity (whether a corporation, a partnership, a limited liability
company or another entity) and includes, without limitation, securities
convertible into Capital Stock and rights or options to acquire Capital
Stock.
"Chattel Paper" means any "chattel paper," as such term is
defined in Article or Chapter 9 of the UCC, now owned or hereafter
acquired by Debtor.
"Clearing Corporation" means any "clearing corporation," as
such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any (a) Person that is
registered as a "clearing agency" under the federal securities laws,
(b) federal reserve bank, or (c) other Person that provides clearance
or settlement services with respect to Financial Assets that would
require it to register as a clearing agency under the federal
securities laws but for an exclusion or exemption from the registration
requirement, if its activities as a clearing corporation, including,
without limitation, promulgation of rules, are subject to regulation by
a federal or state governmental authority.
"Collateral" has the meaning specified in Section 2.1.
"Commodity Account" means any "commodity account," as such
term is defined in Article or Chapter 9 of the UCC, now owned or
hereafter acquired by Debtor, including, without limitation, all
accounts maintained by a Commodity Intermediary in which a Commodity
Contract is carried for Debtor.
"Commodity Contract" means any "commodity contract," as such
term is defined in Article or Chapter 9 of the UCC, and includes,
without limitation, a commodity futures contract, a commodity option,
or other contract that, in each case, is (a) traded on or subject to
the rules of a board of trade that has been designated as a contract
market for such a contract pursuant to the federal commodities laws, or
(b) traded on a foreign commodity board of trade, exchange or market,
and is carried on the books of a Commodity Intermediary for a Commodity
Customer.
"Commodity Customer" means any "commodity customer" as such
term is defined in Article or Chapter 9 of the UCC, and includes,
without limitation, any Person for whom a Commodity Intermediary
carries a Commodity Contract on its books.
"Commodity Intermediary" means any "commodity intermediary,"
as such term is defined in Article or Chapter 9 of the UCC, including,
without limitation, (a) a Person who is registered as a futures
commission merchant under the federal commodities laws, or (b) a Person
who in the ordinary course of its business provides clearance or
settlement services for a board of trade that has been designated as a
contract market pursuant to the federal commodities laws.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 2
"Copyright License" means any written agreement now or
hereafter in existence granting to Debtor any right to use any
Copyright including, without limitation, the agreements identified on
Schedule 1.
"Copyright Security Agreement" means a copyright security
agreement, executed and delivered by Debtor to Secured Party,
substantially in the form of Exhibit A, as such agreement may be
amended, supplemented or otherwise modified from time to time.
"Copyrights" means all of the following: (a) all copyrights,
works protectable by copyright, copyright registrations and copyright
applications of Debtor, including, without limitation, those set forth
on Schedule 1; (b) all renewals, extensions and modifications thereof;
(c) all income, royalties, damages, profits and payments relating to or
payable under any of the foregoing; (d) the right to ▇▇▇ for past,
present or future infringements of any of the foregoing; (e) all other
rights and benefits relating to any of the foregoing throughout the
world; and (f) all goodwill associated with and symbolized by any of
the foregoing; in each case, whether now owned or hereafter acquired by
Debtor.
"Deposit Accounts" means any and all deposit accounts
(including cash collateral accounts), bank accounts or investment
accounts now owned or hereafter acquired or opened by Debtor,
including, without limitation, those set forth on Schedule 2, and any
account which is a replacement or substitute for any of such accounts,
together with all monies, Instruments, certificates, checks, drafts,
wire transfer receipts and other property deposited therein and all
balances therein and all investments made with funds deposited therein
or otherwise held in connection therewith, including, without
limitation, indebtedness (howsoever evidenced) and/or securities issued
or guaranteed by the government of the U.S., certificates of deposit
and all contract rights, General Intangibles, contracts, Instruments,
Investment Property, Security Entitlements, Financial Assets, Commodity
Contracts and other Documents now or hereafter existing with respect
thereto, including, but not limited to, any and all renewals,
extensions, reissuances and replacements and substitutions therefor
with all earnings, profits or other Proceeds therefrom in the form of
interest or otherwise, from time to time representing, evidencing,
deposited into or held in the Deposit Accounts.
"Document" means any "document," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor, including, without limitation, all documents of title and all
receipts covering, evidencing or representing goods now owned or
hereafter acquired by Debtor.
"Entitlement Holder" means any "entitlement holder", as such
term is defined in Article or Chapter 8 of the UCC, and in any event
shall include, but not be limited to, any Person identified in the
records of a Securities Intermediary as the Person having a Security
Entitlement against the Securities Intermediary, including, without
limitation, any Person who acquires a security entitlement under
Article or Chapter 8 of the UCC.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 3
"Equipment" means any "equipment," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor and, in any event, shall include, without limitation, all
machinery, equipment, furniture, fixtures, trade fixtures, trailers,
rolling stock, vessels, aircraft and vehicles now owned or hereafter
acquired by Debtor 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.
"Financial Asset" means any "financial asset," as such term is
defined in Article or Chapter 8 of the UCC, and in any event shall
include, but not be limited to, any (a) Security, (b) obligation of a
Person or a share, participation or other interest in a Person or in
property or an enterprise of a Person, which is, or is of a type, dealt
in or traded on financial markets, or which is recognized in any area
in which it is issued or dealt in as a medium for investment, and (c)
any property that is held by a Securities Intermediary for another
Person in a Securities Account if the Securities Intermediary has
expressly agreed with the other Person that the property is to be
treated as a Financial Asset under Article or Chapter 8 of the UCC.
"General Intangibles" means any "general intangibles," as such
term is defined in Article or Chapter 9 of the UCC, now owned or
hereafter acquired by Debtor and, in any event, shall include, without
limitation, each of the following, whether now owned or hereafter
acquired by Debtor: (a) all of Debtor's service marks, trade names,
trade secrets, registrations, goodwill, franchises, licenses, permits,
proprietary information, customer lists, designs and inventions; (b)
all of Debtor's books and records, data, plans, manuals, computer
software, computer tapes, computer disks, computer programs, source
codes, object codes, management information systems and all rights of
Debtor to retrieve data and other information from third parties; (c)
all of Debtor's contract rights, partnership interests, joint venture
interests, securities, deposit accounts, investment accounts and
certificates of deposit; (d) all rights of Debtor to payment under
letters of credit and similar agreements; (e) all tax refunds and tax
refund claims of Debtor; (f) all choses in action and causes of action
of Debtor (whether arising in contract, tort or otherwise and whether
or not currently in litigation) and all judgments in favor of Debtor;
(g) all rights and claims of Debtor under warranties and indemnities;
and (h) all rights of Debtor under any insurance, surety or similar
contract or arrangement.
"Governmental Authority" means any nation or government, any
state, provincial or political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee" by any Person means any indebtedness, liability or
obligation, contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any
indebtedness, liability or obligation, direct or indirect, contingent
or otherwise, of such Person (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or other
obligation (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions
or otherwise) or (b) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other indebtedness, liability
or obligation as to the payment thereof or to protect the obligee
against loss in respect thereof (in whole or in part), provided that
the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business. The term "Guarantee" used
as a verb has a corresponding meaning. The amount of any Guarantee
shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee is
made or, if not stated or determinable, the maximum anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder).
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 4
"Instrument" means any "instrument," as such term is defined
in Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor, and, in any event, shall include all promissory notes, drafts,
bills of exchange and trade acceptances of Debtor, whether now owned or
hereafter acquired.
"Intellectual Property" means the Copyrights, Copyright
Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses.
"Inventory" means any "inventory," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor, and, in any event, shall include, without limitation, each of
the following, whether now owned or hereafter acquired by Debtor: (a)
all goods and other personal property of Debtor that are held for sale
or lease or to be furnished under any contract of service; (b) all raw
materials, work-in-process, finished goods, inventory, supplies and
materials of Debtor; (c) all wrapping, packaging, advertising and
shipping materials of Debtor; (d) all goods that have been returned to,
repossessed by or stopped in transit by Debtor; and (e) all Documents
evidencing any of the foregoing.
"Investment Property" means any "investment property," as such
term is defined in Article or Chapter 9 of the UCC, now owned or
hereafter acquired by Debtor, and, in any event, shall include, without
limitation, each of the following, whether now owned or hereafter
acquired by Debtor: (a) the Securities Accounts and other Investment
Property described on Schedule 3; (b) any Security or Capital Stock,
whether certificated or uncertificated; (c) any Security Entitlement;
(d) any Securities Account; (e) any Commodity Contract; and (f) any
Commodity Account.
"Issuer" means any "issuer," as such term is defined in
Article or Chapter 8 of the UCC, and in any event shall include, but
not be limited to, any Person that, with respect to an obligation on or
a defense to a Security, (a) places or authorizes the placing of its
name on a Security Certificate, other than as authenticating trustee,
registrar, transfer agent or the like, to evidence a share,
participation or other interest in its property or in an enterprise, or
to evidence its duty to perform an obligation represented by the
certificate; (b) creates a share, participation or other interest in
its property or in an enterprise, or undertakes an obligation, that is
an Uncertificated Security; (c) directly or indirectly creates a
fractional interest in its rights or property, if the fractional
interest is represented by a Security Certificate; or (d) becomes
responsible for, or in the place of, another Issuer.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 5
"License" means any permit, certificate, approval, order,
license or other authorization.
"Obligations" means the "Obligations," as such term is defined
in the Loan Agreement, and the obligations, indebtedness and
liabilities of Debtor under this Agreement and any other Loan Document
to which Debtor may be a party.
"Patent License" means any written agreement now or hereafter
in existence granting to Debtor any right to use any invention on which
a Patent is in existence including, without limitation, the agreements
described on Schedule 1.
"Patent Security Agreement" means a patent security agreement
executed and delivered by Debtor to Secured Party, substantially in the
form of Exhibit B, as such agreement may be amended, supplemented or
otherwise modified from time to time.
"Patents" means all of the following: (a) all patents, patent
applications and patentable inventions of Debtor, including, without
limitation, those set forth on Schedule 1, and all of the inventions
and improvements described and claimed therein; (b) all continuations,
divisions, renewals, extensions, modifications, substitutions,
continuations-in- part or reissues of any of the foregoing; (c) all
income, royalties, profits, damages, awards and payments relating to or
payable under any of the foregoing; (d) the right to ▇▇▇ for past,
present and future infringements of any of the foregoing; (e) all other
rights and benefits relating to any of the foregoing throughout the
world; and (f) all goodwill associated with any of the foregoing; in
each case, whether now owned or hereafter acquired by Debtor.
"Person" means any individual, corporation, trust,
association, company, partnership, joint venture, limited liability
company, joint stock company, Governmental Authority or other entity.
"Pledged Collateral" has the meaning specified in Section
4.16(b)(i).
"Pledged Shares" means all Capital Stock now or hereafter
owned by Debtor, including, without limitation, the shares of Capital
Stock described on Schedule 4.
"Proceeds" means any "proceeds," as such term is defined in
Article or Chapter 9 of the UCC and, in any event, shall include, but
not be limited to, (a) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to Debtor from time to time
with respect to any of the Collateral, (b) any and all payments (in any
form whatsoever) made or due and payable to Debtor 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, or purporting to act, for or on behalf
of any Governmental Authority), and (c) any and all other amounts from
time to time paid or payable under or in connection with any of the
Collateral.
"Securities Account" means any "securities account," as such
term is defined in Article or Chapter 8 of the UCC, and in any event
shall include, but not be limited to, any account to which a Financial
Asset is or may be credited in accordance with an agreement under which
the Person maintaining the account undertakes to treat the Person for
whom the account is maintained as entitled to exercise the rights that
comprise the Financial Asset.
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(USA Industries, Incorporated) - Page 6
"Securities Intermediary" means any "securities intermediary,"
as such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any (a) Clearing
Corporation, or (b) Person, including a bank or Broker, that in the
ordinary course of its business maintains Securities Accounts for
others and is acting in that capacity.
"Security" means any "security," as such term is defined in
Article or Chapter 8 of the UCC and, in any event, shall include, but
not be limited to, any obligation of an Issuer or a share,
participation or other interest in an Issuer or in property or an
enterprise of an Issuer (a) which is represented by a Security
Certificate in bearer or registered form, or the transfer of which may
be registered upon books maintained for that purpose by or on behalf of
the Issuer, (b) which is one of a class or series or by its terms is
divisible into a class or series of shares, participations, interests
or obligations, and (c) which (i) is, or is of a type, dealt in or
traded on securities exchanges or securities markets, or (ii) is a
medium for investment and by its terms expressly provides that it is a
security governed by Article or Chapter 8 of the UCC.
"Security Certificate" means any "security certificate," as
such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any certificate
representing a Security.
"Security Entitlement" means any "security entitlement," as
such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any of the rights and
property interests of an Entitlement Holder with respect to a Financial
Asset.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which at least a majority of the
outstanding shares of stock or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors (or Persons performing similar functions) of such corporation
or entity (irrespective of whether or not at the time, in the case of a
corporation, stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled
by such Person or one or more of its Subsidiaries or by such Person and
one or more of its Subsidiaries.
"Trademark License" means any written agreement now or
hereafter in existence granting to Debtor any right to use any
Trademark, including, without limitation, the agreements identified on
Schedule 1.
"Trademark Security Agreement" means a trademark security
agreement executed and delivered by Debtor to Secured Party,
substantially in the form of Exhibit C, as such agreement may be
amended, supplemented or otherwise modified from time to time.
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(USA Industries, Incorporated) - Page 7
"Trademarks" means all of the following: (a) all trademarks,
trade names, corporate names, company names, business names, fictitious
business names, trade styles, service marks, logos, other business
identifiers, prints and labels on which any of the foregoing have
appeared or appear, all registrations and recordings thereof and all
applications in connection therewith, including, without limitation,
registrations, recordings and applications in the United States Patent
and Trademark Office or in any similar office or agency of the U.S.,
any state thereof or any other country or any political subdivision
thereof, including, without limitation, those described in Schedule 1;
(b) all reissues, extensions and renewals thereof; (c) all income,
royalties, damages and payments now or hereafter relating to or payable
under any of the foregoing, including, without limitation, damages or
payments for past or future infringements of any of the foregoing; (e)
the right to ▇▇▇ for past, present and future infringements of any of
the foregoing; (f) all rights corresponding to any of the foregoing
throughout the world; and (g) all goodwill associated with and
symbolized by any of the foregoing; in each case, whether now owned or
hereafter acquired by Debtor.
"UCC" means the Uniform Commercial Code as in effect in the
State of Texas; provided, that if, by applicable law, the perfection or
effect of perfection or non-perfection of the security interest created
hereunder in any Collateral is governed by the Uniform Commercial Code
as in effect on or after the date hereof in any other jurisdiction,
"UCC" means the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such
perfection or the effect of perfection or non-perfection.
"Uncertificated Security" means any "uncertificated security,"
as such term is defined in Article or Chapter 8 of the UCC, and in any
event shall include, but not be limited to, any Security that is not
represented by a certificate.
"U.S." means the United States of America.
Section 1.2 Other Definitional Provisions. Terms used herein that are
defined in the Loan Agreement and are not otherwise defined herein shall have
the meanings therefor specified in the Loan Agreement. References to "Sections,"
"subsections," "Exhibits" and "Schedules" shall be to Sections, subsections,
Exhibits and Schedules, respectively, of this Agreement unless otherwise
specifically provided. All definitions contained in this Agreement are equally
applicable to the singular and plural forms of the terms defined. All references
to statutes and regulations shall include any amendments of the same and any
successor statutes and regulations. References to particular sections of the UCC
should be read to refer also to parallel sections of the Uniform Commercial Code
as enacted in each state or other jurisdiction where any portion of the
Collateral is or may be located.
ARTICLE 2
Security Interest
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Section 2.1 Security Interest. As collateral security for the prompt
payment and performance in full when due of the Obligations (whether at stated
maturity, by acceleration or otherwise), Debtor hereby pledges and assigns (as
collateral) to Secured Party, and grants to Secured
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
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Party a continuing lien on and security interest in, all of Debtor's right,
title and interest in and to the following, whether now owned or hereafter
arising or acquired and wherever located (collectively, the "Collateral"):
(a) all Accounts;
(b) all Chattel Paper;
(c) all Instruments;
(d) all General Intangibles;
(e) all Documents;
(f) all Equipment (including, without limitation, Equipment at
the locations set forth on Schedule 5 hereto);
(g) all Inventory (including, without limitation, Inventory at
the locations set forth on Schedule 5 hereto);
(h) all Intellectual Property;
(i) all Investment Property, and the certificates and all
dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed or distributable in
respect of or in exchange for any or all of such Investment Property;
(j) all Deposit Accounts;
(k) the Pledged Shares and the certificates representing the
Pledged Shares, all additional Capital Stock of the Subsidiaries of
Debtor and all dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed or
distributable in respect of or in exchange for any or all of the
Pledged Shares or such additional Capital Stock, and all rights,
interests and other property, including, without limitation, General
Intangibles, relating to any or all of the Pledged Shares, such
additional Capital Stock and such dividends, cash, instruments and
other property;
(l) all indebtedness from time to time owed to Debtor by its
Subsidiaries and the instruments evidencing such indebtedness, and all
interest, cash, instruments and other property from time to time
received, receivable or otherwise distributed or distributable in
respect of or in exchange for any or all of such indebtedness;
(m) all proceeds, in cash or otherwise, of any of the property
described in the foregoing clauses (a) through (l) and all liens,
security, rights, remedies and claims of Debtor with respect thereto;
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(USA Industries, Incorporated) - Page 9
(n) all other goods and personal property of Debtor of any
kind or character, whether tangible or intangible, including, without
limitation, any and all rights in and claims under insurance policies,
judgments and rights thereunder, and tort claims; and
(o) all Proceeds and products of any or all of the foregoing.
Section 2.2 Debtor Remains Liable. Notwithstanding anything to the
contrary contained herein, (a) Debtor shall remain liable under the contracts,
agreements, documents and instruments included in the Collateral to the extent
set forth therein to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed, (b) the exercise by
Secured Party of any of its rights or remedies hereunder shall not release
Debtor from any of its duties or obligations under the contracts, agreements,
documents and instruments included in the Collateral, and (c) Secured Party
shall not have any indebtedness, liability or obligation under any of the
contracts, agreements, documents and instruments included in the Collateral by
reason of this Agreement, and Secured Party shall not be obligated to perform
any of the obligations or duties of Debtor thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
Section 2.3 Delivery of Collateral. All certificates or instruments
representing or evidencing the Pledged Shares, any Instruments or Chattel Paper
or any other Collateral including, without limitation, any Investment Property,
promptly upon Debtor gaining any rights therein, shall be delivered to and held
by or on behalf of Secured Party pursuant hereto in suitable form for transfer
by delivery, or accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance reasonably satisfactory to
Secured Party. After the occurrence and during the continuation of an Event of
Default, Secured Party shall have the right at any time to exchange certificates
or instruments representing or evidencing any Pledged Collateral in its
possession for certificates or instruments of smaller or larger denominations.
ARTICLE 3
Representations and Warranties
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To induce Secured Party to enter into this Agreement and the other Loan
Documents, Debtor represents and warrants that:
Section 3.1 Title. Debtor is, and with respect to Collateral acquired
after the date hereof Debtor will be, the legal and beneficial owner of the
Collateral free and clear of any Lien or other encumbrance, except for Liens
otherwise expressly permitted by Secured Party in the Loan Agreement or any
other Loan Document (hereinafter "Permitted Liens").
Section 3.2 Accounts. Unless Debtor has given Secured Party written
notice to the contrary, whenever the security interest granted hereunder
attaches to an Account, Debtor shall be deemed to have represented and warranted
to Secured Party as to each of its Accounts at the time of its creation that, to
the best of Debtor's knowledge (a) each Account is genuine and in all respects
what it purports to be, (b) each Account represents the legal, valid and binding
obligation of the account debtor evidencing indebtedness unpaid and owed by such
account debtor, (c) except for defenses and business disputes arising in the
ordinary course of business which in the aggregate are not material, the amount
of each Account represented as owing is the correct amount actually and
unconditionally owing except for normal trade discounts granted in the ordinary
course of business, and (d) except for defenses and business disputes arising in
the ordinary course of business which in the aggregate are not material, no
Account is subject to any offset, counterclaim or other defense.
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Section 3.3 Financing Statements. No financing statement, security
agreement or other Lien instrument covering all or any part of the Collateral is
on file in any public office, except as may have been filed in favor of Secured
Party pursuant to this Agreement and except for financing statements evidencing
Permitted Liens. Except as otherwise disclosed on Schedule 6 hereto, Debtor does
not do business and has not done business within the past five (5) years under a
trade name or any name other than its legal name set forth at the beginning of
this Agreement.
Section 3.4 Principal Place of Business. The principal place of
business and chief executive office of Debtor, and the office where Debtor keeps
its books and records, is located at the address of Debtor shown at the
beginning of this Agreement.
Section 3.5 Location of Collateral. All Inventory (except Inventory in
transit) and Equipment (other than vehicles) of Debtor is located at the places
specified on Schedule 5 hereto. If any such location is leased by Debtor, the
name and address of the landlord leasing such location is identified on Schedule
5 hereto. All Inventory (except Inventory in transit) and Equipment will be
located only at (a) the specific locations which are described as locations for
such types of Inventory and Equipment on Schedule 5 hereto or (b) subject to the
requirements of this Agreement, such other locations as may be expressly
identified by Debtor from time to time as locations for such types of Inventory
and Equipment, which identification shall be set forth in a written notice given
by Debtor to Secured Party at least 30 days prior to the date upon which any
such Inventory or Equipment is located at such location. Debtor has exclusive
possession and control of its Inventory and Equipment. None of the Inventory
(other than Inventory in transit as to which all Documents evidencing such
Inventory have been delivered to Secured Party) or Equipment (other than
vehicles) of Debtor is evidenced by a Document (including, without limitation, a
negotiable document of title). All Instruments, Chattel Paper and Security
Certificates of Debtor have been delivered to Secured Party.
Section 3.6 Perfection. Upon the filing of Uniform Commercial Code
financing statements in the jurisdictions listed on Schedule 7, the filing of a
Patent Security Agreement (if any) and a Trademark Security Agreement (if any)
with the United States Patent and Trademark Office, the filing of a Copyright
Security Agreement (if any) with the United States Copyright Office, and upon
Secured Party's obtaining possession of the Pledged Shares and all other
Instruments, Chattel Paper and Security Certificates of Debtor, the security
interest in favor of Secured Party created herein will constitute a valid and
perfected Lien upon and security interest in the Collateral (except for (a)
vehicles covered by certificates of title, and (b) other Property excluded from
the application of Article or Chapter 9 of the UCC by Section 9-104 of the UCC),
subject to no equal or prior Liens except for those Liens (if any) which
constitute Permitted Liens and are permitted by the Loan Agreement to have equal
or greater priority.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 11
Section 3.7 Inventory. All production (if any) and purchase of
Inventory by Debtor has been in compliance with all requirements of the Fair
Labor Standards Act.
Section 3.8 Intellectual Property.
(a) All of the Intellectual Property is subsisting, valid and
enforceable. The information contained on Schedule 1 hereto is true,
correct and complete. All Intellectual Property existing on the date
hereof is identified on Schedule 1 hereto.
(b) Debtor is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to the Intellectual
Property free and clear of any Liens, including, without limitation,
any pledges, assignments, licenses, user agreements and covenants by
Debtor not to ▇▇▇ third Persons, other than Permitted Liens.
(c) No claim has been made that the use of any of the
Intellectual Property violates or may violate the rights of any third
Person.
(d) Each of the Patents and Trademarks identified on Schedule
1 hereto has been properly registered with the United States Patent and
Trademark Office and each of the Copyrights identified on Schedule 1
hereto has been properly registered with the United States Copyright
Office.
Section 3.9 Pledged Shares and Instruments.
(a) The Pledged Shares have been duly authorized and validly
issued and are fully paid and nonassessable under the laws of the
jurisdiction of incorporation or organization of the issuers thereof.
To the best knowledge of Debtor, the Instruments have been duly
authorized and validly issued and constitute legal and enforceable
indebtedness of the makers or issuers thereof.
(b) Debtor is the legal and beneficial owner of the Pledged
Shares and the Instruments, free and clear of any Lien (other than the
Lien created by this Agreement), and Debtor has not sold, granted any
option with respect to, assigned, transferred or otherwise disposed of
any of its rights or interest in or to the Pledged Shares or the
Instruments.
(c) On the date hereof, the Pledged Shares constitute the
percentage of the issued and outstanding Capital Stock of the issuers
thereof indicated on Schedule 4, as such Schedule 4 may from time to
time be supplemented, amended or modified.
Section 3.10 Investment Property. As of the Closing Date, Schedule 3
contains a complete and accurate description of all Investment Property owned by
Debtor.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 12
ARTICLE 4
Covenants
Debtor covenants and agrees with Secured Party that until the
Obligations are paid and performed in full:
Section 4.1 Encumbrances. Debtor shall not create, permit or suffer to
exist, and shall defend the Collateral against, any Lien or other encumbrance on
the Collateral except for those Permitted Liens (if any) which are permitted to
attach to the Collateral in accordance with the Loan Agreement, and shall defend
Debtor's rights in the Collateral and Secured Party's pledge and collateral
assignment of and security interest in the Collateral against the claims and
demands of all Persons. Debtor shall do nothing to impair the rights of Secured
Party in the Collateral.
Section 4.2 Modification of Accounts. Debtor shall, in accordance with
prudent business practices, endeavor to collect or cause to be collected from
each account debtor under its Accounts, as and when due, any and all amounts
owing under such Accounts. Without the prior written consent of Secured Party,
Debtor shall not, other than in the ordinary course of business and pursuant to
customary business practices in Debtor's industry, (a) grant any extension of
time for any payment with respect to any of the Accounts, (b) compromise,
compound or settle any of the Accounts for less than the full amount thereof,
(c) release, in whole or in part, any Person liable for payment of any of the
Accounts, (d) allow any credit or discount for payment with respect to any
Account other than trade discounts granted in the ordinary course of business,
or (e) release any Lien or Guarantee securing any Account.
Section 4.3 Disposition of Collateral. Except as expressly permitted by
the terms of the Loan Agreement, Debtor shall not sell, lease, assign (by
operation of law or otherwise) or otherwise dispose of, or grant any option with
respect to, the Collateral or any part thereof without the prior written consent
of Secured Party.
Section 4.4 Further Assurances. At any time and from time to time, upon
the request of Secured Party, and at the sole expense of Debtor, Debtor shall
promptly execute and deliver all such further agreements, documents and
instruments and take such further action as Secured Party may reasonably deem
necessary or appropriate to preserve and perfect its security interest in and
pledge and collateral assignment of the Collateral and carry out the provisions
and purposes of this Agreement or to enable Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any of the Collateral,
and, to the extent any of the Collateral at any time constitutes Investment
Property, then Debtor shall cause Secured Party to obtain "control," as defined
in Article or Chapter 8 of the UCC, of such Collateral in one (or more, if
Secured Party reasonably so requests) of the manners prescribed in Section 8-106
of the UCC. Debtor and Secured Party agree that the grant of the security
interest in the Investment Property pursuant to this Agreement shall have the
effect of a delivery of such securities to Secured Party pursuant to Section
8-301 of the UCC, and the effect of a taking of delivery by Secured Party of
such Collateral in accordance with Section 8- 302 of the UCC. Except as
otherwise expressly permitted by the terms of the Loan Agreement relating to
disposition of assets and except for Permitted Liens, Debtor agrees to defend
the title to the Collateral and the Lien thereon of Secured Party against the
claim of any other Person and to maintain and preserve such Lien. Without
limiting the generality of the foregoing, Debtor shall (a) execute and deliver
to Secured Party such financing statements as Secured Party may from time to
time require; (b) deliver and pledge to Secured Party all Documents (including,
without limitation, all documents of title) evidencing Inventory or Equipment
(except for certificates of title covering vehicles) and cause Secured Party to
be named as lienholder on all such Documents; (c) deliver and pledge to Secured
Party all Instruments and Chattel Paper of Debtor with any necessary
endorsements; and (d) execute and deliver to Secured Party such other
agreements, documents and instruments as Secured Party may require to perfect
and maintain the validity, effectiveness and priority of the Liens intended to
be created by the Loan Documents. Debtor authorizes Secured Party to file one or
more financing or continuation statements, and amendments thereto, relating to
all or any part of the Collateral without the signature of Debtor where
permitted by law. A carbon, photographic or other reproduction of this Agreement
or of any financing statement covering the Collateral or any part thereof shall
be sufficient as a financing statement and may be filed as a financing
statement.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 13
Section 4.5 Insurance. Debtor will, at its own expense, maintain
insurance with respect to all Collateral in such amounts, against such risks, in
such form and with such insurers, as shall be satisfactory to Secured Party from
time to time. If requested by Secured Party, each policy for property damage
insurance shall provide for all proceeds thereof to be paid directly to Secured
Party. If requested by Secured Party, each policy of insurance maintained by
Debtor shall (i) name Debtor and Secured Party as insured parties thereunder
(without any representation or warranty by or obligation upon Secured Party) as
their interests may appear, (ii) contain the agreement by the insurer that all
proceeds of such policy shall be payable to Secured Party notwithstanding any
action, inaction or breach of representation or warranty by Debtor, (iii)
provide that there shall be no recourse against Secured Party for payment of
premiums or other amounts with respect thereto, and (iv) provide that at least
ten (10) days prior written notice of cancellation or of lapse shall be given to
Secured Party by the insurer. Debtor will, if requested by Secured Party,
deliver to Secured Party original or duplicate policies of such insurance and,
as often as Secured Party may reasonably request, a report of a reputable
insurance broker with respect to such insurance. Debtor will also, at the
request of Secured Party, duly execute and deliver instruments of assignment of
such insurance policies and cause the respective insurers to acknowledge notice
of such assignment. All insurance payments in respect of loss of or damage to
any Collateral shall be paid to Secured Party, as provided for in this
paragraph, and applied as Secured Party in its sole discretion deems
appropriate.
Section 4.6 Bailees. If any of the Collateral is at any time in the
possession or control of any warehouseman, bailee or any of Debtor's agents or
processors, Debtor shall, at the request of Secured Party, notify such
warehouseman, bailee, agent or processor of the security interest created
hereunder and shall instruct such Person to hold such Collateral for Secured
Party's account subject to Secured Party's instructions.
Section 4.7 Inspection Rights. Debtor shall permit Secured Party and
its representatives to examine, inspect and audit the Collateral and to examine,
inspect and audit Debtor's books and records at any reasonable time, and as the
Secured Party may desire. Secured Party may at any time and from time to time
contact account debtors to verify the existence, amounts and terms of the
Accounts.
Section 4.8 Mortgagee and Landlord Waivers or Subordinations. Subject
to the provisions of the Loan Agreement, Debtor shall cause each mortgagee of
real property owned by Debtor and each landlord of real property leased by
Debtor to execute and deliver instruments satisfactory in form and substance to
Secured Party by which such mortgagee or landlord waives or subordinates its
rights, if any, in any of the Collateral.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 14
Section 4.9 Corporate Changes. Debtor shall not change its name,
identity or corporate structure in any manner that might make any financing
statement filed in connection with this Agreement seriously misleading unless
Debtor shall have given Secured Party thirty (30) days prior written notice
thereof and shall have taken all action deemed necessary or appropriate by
Secured Party to protect its Liens and the perfection and priority thereof.
Debtor shall not change its principal place of business, chief executive office
or the place where it keeps its books and records unless it shall have given
Secured Party thirty (30) days prior written notice thereof and shall have taken
all action deemed necessary or appropriate by Secured Party to cause its
security interest in the Collateral to be perfected with the priority required
by this Agreement.
Section 4.10 Books and Records; Information. Debtor shall keep accurate
and complete books and records of the Collateral and Debtor's business and
financial condition in accordance with GAAP. Debtor shall from time to time at
the request of Secured Party deliver to Secured Party such information regarding
the Collateral and Debtor as Secured Party may reasonably request, including,
without limitation, lists and descriptions of the Collateral and evidence of the
identity and existence of the Collateral. To the extent required by Section 4.4
of this Agreement, Debtor shall ▇▇▇▇ its books and records to reflect the
security interest of Secured Party under this Agreement.
Section 4.11 Equipment and Inventory.
(a) Debtor shall keep the Equipment (other than vehicles) and
Inventory (other than Inventory in transit) at the locations specified
on Schedule 5 hereto or at such other places within the U.S. where all
action required to perfect Secured Party's security interest in the
Equipment and Inventory with the priority required by this Agreement
shall have been taken; provided that if any Equipment (other than
vehicles) or Inventory (other than Inventory in transit) is being
relocated to any jurisdiction where the security interest of Secured
Party under this Agreement has not been previously perfected, then in
such case Debtor shall deliver prompt (and in any event within not less
than thirty (30) days) notice thereof to Secured Party.
(b) Debtor shall maintain the Equipment and Inventory in good
condition and repair (ordinary wear and tear of the Equipment
excepted). Debtor shall not permit any waste or destruction of the
Equipment or Inventory or any part thereof. Debtor shall not permit the
Equipment or Inventory to be used in violation of any law, rule or
regulation or the terms of any policy of insurance. Debtor shall not
use or permit any of the Equipment or Inventory to be used in any
manner or for any purpose that would impair its value or expose it to
unusual risk.
(c) Debtor shall comply with all requirements of the Fair
Labor Standards Act in producing or purchasing Inventory.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 15
(d) Within forty-five (45) days of the end of each of Debtor's
fiscal quarters, Debtor shall provide Secured Party with a report
setting forth in reasonable detail any change during such preceding
fiscal quarter of the location of any Equipment or Inventory (unless
such location is one of the locations already specified on Schedule 5
hereto).
Section 4.12 Warehouse Receipts Non-Negotiable. Debtor agrees that if
any warehouse receipt or receipt in the nature of a warehouse receipt is issued
in respect of any of the Collateral, such warehouse receipt or receipt in the
nature thereof shall not be "negotiable" (as such term is used in Section 7-104
of the UCC) unless such warehouse receipt or receipt in the nature thereof is
delivered to Secured Party.
Section 4.13 Notification. Debtor shall promptly notify Secured Party
of (a) any Lien, encumbrance or claim (other than Permitted Liens) that has
attached to or been made or asserted against any of the Collateral, (b) any
material change in any of the Collateral, including, without limitation, any
material damage to or loss of Collateral, and (c) the occurrence of any other
event or condition (including, without limitation, matters as to Lien priority)
that could have a material adverse effect on the Collateral or the security
interest created hereunder.
Section 4.14 Collection of Accounts. Debtor shall cause all collections
of Accounts and sales of Inventory to be conducted in compliance with the terms
of the Loan Agreement. In addition all cash proceeds (including, without
limitation, all Proceeds of Collateral) shall be deposited directly, as
received, into one or more of the Deposit Accounts. Debtor agrees that all
Proceeds of Collateral deposited in any collection account or concentration
account shall at all times continue to be Collateral under the terms of this
Agreement. Debtor shall cause each of the Deposit Accounts to be collaterally
assigned, on a first priority basis, to Secured Party as security for the
payment and performance of the Obligations pursuant to agreements in form and
substance reasonably satisfactory to Secured Party which have been acknowledged
and agreed to by the depository banks on or before June 17, 2000.
Section 4.15 Intellectual Property. Except with the written consent of
Secured Party:
(a) Debtor shall prosecute diligently all applications in
respect of Intellectual Property, now or hereafter pending;
(b) Debtor shall make federal applications on all of its
unpatented but patentable inventions and all of its registrable but
unregistered Copyrights and Trademarks other than any immaterial
Patents, Trademarks and Copyrights which are not useful in Debtor's
business;
(c) Debtor shall preserve and maintain all of its rights in
the Intellectual Property and shall protect the Intellectual Property
from infringement, unfair competition, cancellation or dilution by all
appropriate action, including, without limitation, the commencement and
prosecution of legal proceedings to recover damages for infringement
and to defend and preserve its rights in the Intellectual Property;
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 16
(d) Debtor shall not abandon any of the Intellectual Property
except for any immaterial Intellectual Property which is not useful in
Debtor's business;
(e) Debtor shall not sell or assign any of its interest in, or
grant any license under (except as permitted by Section 5.5), any of
the Intellectual Property and shall maintain the quality of any and all
products and services with respect to which the Intellectual Property
is used. Debtor shall not enter into any agreement regarding
Intellectual Property, including, but not limited to, any licensing
agreement not permitted by Section 5.5, that is or may be inconsistent
with Debtor's obligations under this Agreement or any of the other Loan
Documents;
(f) If Debtor shall obtain rights to or become entitled to the
benefit of any Intellectual Property not identified on Schedule 1
hereto, Debtor shall give Secured Party prompt written notice thereof
and the provisions of this Agreement shall automatically apply thereto
and Debtor hereby authorizes Secured Party to modify or update Schedule
1 hereto to include any such new Intellectual Property;
(g) Upon the occurrence of any event that would require any
addition to or modification of Schedule 1 hereto or upon the request of
Secured Party, Debtor shall furnish to Secured Party statements and
schedules further identifying the Intellectual Property and such other
items in connection with the Intellectual Property as Secured Party may
request. Promptly upon the request of Secured Party, Debtor shall
modify this Agreement by amending Schedule 1 hereto to include any
Intellectual Property that becomes part of the Collateral;
(h) If an Event of Default shall have occurred and be
continuing, Debtor shall use its best efforts to obtain any consents,
waivers or agreements necessary to enable Secured Party to exercise its
rights and remedies with respect to the Intellectual Property; and
(i) Debtor shall, at the request of Secured Party, execute and
deliver to Secured Party a Copyright Security Agreement, a Patent
Security Agreement, a Trademark Security Agreement and all other
agreements, documents, instruments and other items as may be necessary
for Secured Party to file such agreements with the United States
Copyright Office, the United States Patent and Trademark Office and any
similar domestic or foreign office, department or agency. Debtor will,
at any time and from time to time upon the request of Secured Party,
execute and deliver to Secured Party all such other agreements,
documents, instruments and other items as may be necessary or
appropriate for Secured Party to create and perfect its security
interest in the Intellectual Property and to make all appropriate
filings with respect thereto.
Section 4.16 Voting Rights, Distributions, Etc.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) Debtor shall be entitled to exercise any and all
voting and other consensual rights (including, without
limitation, the right to give consents, waivers and
notifications in respect of any of the Pledged Collateral)
pertaining to any of the Pledged Collateral or any part
thereof; provided, however, that without the prior written
consent of Secured Party, no vote shall be cast or consent,
waiver or ratification given or action taken which would (x)
be inconsistent with or violate any provision of this
Agreement or any other Loan Document or (y) amend, modify or
waive any term, provision or condition of the certificate of
incorporation, by-laws, certificate of formation, operating
agreement or other charter document or other agreement
relating to, evidencing, providing for the issuance of or
securing any Collateral; and provided further that Debtor
shall give Secured Party at least five (5) Business Days'
prior written notice in the form of an officer's certificate
of the manner in which it intends to exercise, or the reasons
for refraining from exercising, any voting or other consensual
rights pertaining to the Collateral or any part thereof which
might have a material adverse effect on the value of the
Collateral or any part thereof; and
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 17
(ii) Unless an Event of Default shall have occurred
and be continuing, Debtor shall be entitled to receive and
retain any and all dividends and interest paid in respect of
any of the Collateral to the extent permitted by the Loan
Agreement. During the continuance of any Default, any
dividends, interest or other distributions (whether in cash,
securities, property or otherwise) received by Debtor with
respect to any Pledged Collateral shall be held by Debtor in
trust for the benefit of Secured Party and, upon the request
of Secured Party, shall be delivered promptly to Secured Party
to hold as Collateral or shall be applied by Secured Party
toward payment of the Obligations, as Secured Party may in its
discretion determine. If such Default is waived or cured to
the satisfaction of Secured Party, any such distributions
shall be returned promptly to Debtor (provided that no other
Default or Event of Default exists). If such Default remains
uncured and becomes an Event of Default, any such
distributions will be applied by Secured Party as provided in
the Loan Agreement.
(b) Upon the occurrence and during the continuance of a
Default or an Event of Default:
(i) Secured Party may, without notice to Debtor,
transfer or register in the name of Secured Party or any of
its nominees any or all of the Collateral described in Section
2.1(m) or Section 2.1(n), the proceeds thereof (in cash or
otherwise) and all liens, security, rights, remedies and
claims of Debtor with respect thereto (collectively, the
"Pledged Collateral") held by Secured Party hereunder, and
Secured Party or its nominee may thereafter, after delivery of
notice to Debtor, exercise all voting and corporate rights at
any meeting of any corporation, partnership or other business
entity issuing any of the Pledged Collateral and any and all
rights of conversion, exchange, subscription or any other
rights, privileges or options pertaining to any of the Pledged
Collateral as if it were the absolute owner thereof,
including, without limitation, the right to exchange at its
discretion any and all of the Pledged Collateral upon the
merger, consolidation, reorganization, recapitalization or
other readjustment of any corporation, partnership or other
business entity issuing any of such Pledged Collateral or upon
the exercise by any such issuer or Secured Party of any right,
privilege or option pertaining to any of the Pledged
Collateral, and in connection therewith, to deposit and
deliver any and all of the Pledged Collateral with any
committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as it may
determine, all without liability except to account for
property actually received by it, but Secured Party shall have
no duty to exercise any of the aforesaid rights, privileges or
options, and Secured Party shall not be responsible for any
failure to do so or delay in so doing.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 18
(ii) All rights of Debtor to exercise the voting and
other consensual rights which it would otherwise be entitled
to exercise pursuant to subsection 4.16(a)(i) and to receive
the dividends, interest and other distributions which it would
otherwise be authorized to receive and retain pursuant to
subsection 4.16(a)(ii) shall be suspended until such Default
or Event of Default shall no longer exist, and all such rights
shall, until such Default or Event of Default shall no longer
exist, thereupon become vested in Secured Party which shall
thereupon have the sole right to exercise such voting and
other consensual rights and to receive and hold as Pledged
Collateral such dividends, interest and other distributions.
(iii) All dividends, interest and other distributions
which are received by Debtor contrary to the provisions of
this subsection 4.16(b) shall be received in trust for the
benefit of Secured Party, shall be segregated from other funds
of Debtor and shall be forthwith paid over to Secured Party as
Collateral in the same form as so received (with any necessary
endorsement).
(iv) Debtor shall execute and deliver (or cause to be
executed and delivered) to Secured Party all such proxies and
other instruments as Secured Party may reasonably request for
the purpose of enabling Secured Party to exercise the voting
and other rights which it is entitled to exercise pursuant to
this subsection 4.16(b) and to receive the dividends, interest
and other distributions which it is entitled to receive and
retain pursuant to this subsection 4.16(b). The foregoing
shall not in any way limit Secured Party's power and authority
granted pursuant to Section 5.1.
Section 4.17 Transfers and Other Liens; Additional Investments.
(a) Except as may be expressly permitted by the terms of the
Loan Agreement, Debtor shall not grant any option with respect to,
exchange, sell or otherwise dispose of any of the Collateral or create
or permit to exist any Lien upon or with respect to any of the
Collateral except for the Liens created hereby.
(b) Debtor agrees that it will (i) cause each issuer of any of
the Pledged Collateral not to issue any Capital Stock, notes or other
securities or instruments in addition to or in substitution for any of
the Pledged Collateral, except, with the written consent of Secured
Party, to Debtor, (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all such Capital
Stock, notes or other securities or instruments, and (iii) promptly
(and in any event within three Business Days) deliver to Secured Party
an Amendment, duly executed by Debtor, in substantially the form of
Exhibit D (an "Amendment"), in respect of such Capital Stock, notes or
other securities or instruments, together with all certificates, notes
or other securities or instruments representing or evidencing the same.
Debtor hereby (i) authorizes Secured Party to attach each Amendment to
this Agreement, (ii) agrees that all such Capital Stock, notes or other
securities or instruments listed on any Amendment delivered to Secured
Party shall for all purposes hereunder constitute Pledged Collateral,
and (iii) is deemed to have made, upon such delivery, the
representations and warranties contained in Article III with respect to
such Pledged Collateral.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 19
Section 4.18 Possession; Reasonable Care. Regardless of whether a
Default or an Event of Default has occurred or is continuing, Secured Party
shall have the right to hold in its possession all Instruments, Chattel Paper
and Pledged Collateral pledged, assigned or transferred hereunder and from time
to time constituting a portion of the Collateral. Secured Party may, from time
to time, in its sole discretion, appoint one or more agents (which in no case
shall be Debtor or an Affiliate of Debtor) to hold physical custody, for the
account of Secured Party, of any or all of the Collateral. Secured Party shall
be deemed to have exercised reasonable care in the custody and preservation of
the Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which Secured Party accords its own property, it
being understood that Secured Party shall not have any responsibility for (a)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not
Secured Party has or is deemed to have knowledge of such matters, or (b) taking
any necessary steps to preserve rights against any parties with respect to any
Collateral. Following the occurrence and during the continuation of an Event of
Default, Secured Party shall be entitled to take possession of the Collateral.
Section 4.19 Acknowledgment of Collateral Assignment of Deposit
Accounts. Debtor shall deliver to Secured Party, on or before June 17, 2000, and
at any time as Secured Party may request hereafter, acknowledgment by each
financial institution in which any Deposit Account is held or maintained that
the collateral assignment of such Deposit Account has been recorded in the books
and records of such financial institution, and that Secured Party shall have
dominion and control over such Deposit Account, such acknowledgment to be in
form and substance satisfactory to Secured Party.
Section 4.20 Statement of Account for Deposit Accounts. Debtor shall,
from time to time upon written request of Secured Party, provide to Secured
Party a copy of each statement of account for any Deposit Account received by
Debtor from the financial institution in which a Deposit Account is held or
maintained. At Secured Party's request, Debtor will use its reasonable efforts
to make such arrangements as are reasonably necessary in order to enable Secured
Party to access such information by inquiry of an officer or other
representative of any such financial institution or via any automated
information system which may be maintained by such financial institution.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 20
ARTICLE 5
Rights of Secured Party
Section 5.1 Power of Attorney. Debtor hereby irrevocably constitutes
and appoints Secured Party and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the name of Debtor or in its own name, to take after the
occurrence and during the continuance of an Event of Default, any and all action
and to execute any and all documents and instruments which Secured Party at any
time and from time to time deems necessary or desirable to accomplish the
purposes of this Agreement and, without limiting the generality of the
foregoing, Debtor hereby gives Secured Party the power and right on behalf of
Debtor and in its own name to do any of the following after the occurrence and
during the continuance of an Event of Default, without notice to or the consent
of Debtor:
(a) to demand, ▇▇▇ for, collect or receive, in the name of
Debtor or in its own name, any money or property at any time payable or
receivable on account of or in exchange for any of the Collateral and,
in connection therewith, endorse checks, notes, drafts, acceptances,
money orders, documents of title or any other instruments for the
payment of money under the Collateral or any policy of insurance;
(b) to pay or discharge taxes, Liens or other encumbrances
levied or placed on or threatened against the Collateral;
(c) to notify post office authorities to change the address
for delivery of mail of Debtor to an address designated by Secured
Party and to receive, open and dispose of mail addressed to Debtor;
(d) (i) to direct account debtors and any other parties liable
for any payment under any of the Collateral to make payment of any and
all monies due and to become due thereunder directly to Secured Party
or as Secured Party shall direct; (ii) to receive payment of and
receipt for any and all monies, claims and other amounts due and to
become due at any time in respect of or arising out of any Collateral;
(iii) to sign and endorse any invoices, freight or express bills, bills
of lading, storage or warehouse receipts, drafts against debtors,
assignments, proxies, stock powers, verifications and notices in
connection with accounts and other documents relating to the
Collateral; (iv) to commence and prosecute any suit, action or
proceeding at law or in equity in any court of competent jurisdiction
to collect the Collateral or any part thereof and to enforce any other
right in respect of any Collateral; (v) to defend any suit, action or
proceeding brought against Debtor with respect to any Collateral; (vi)
to settle, compromise or adjust any suit, action or proceeding
described above and, in connection therewith, to give such discharges
or releases as Secured Party may deem appropriate; (vii) to exchange
any of the Collateral for other property upon any merger,
consolidation, reorganization, recapitalization or other readjustment
of the issuer thereof and, in connection therewith, deposit any of the
Collateral with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms as Secured Party may determine;
(viii) to add or release any guarantor, indorser, surety or other party
to any of the Collateral; (ix) to renew, extend or otherwise change the
terms and conditions of any of the Collateral; (x) to grant or issue
any exclusive or nonexclusive license under or with respect to any of
the Intellectual Property; (xi) to endorse Debtor's name on all
applications, documents, papers and instruments necessary or desirable
in order for Secured Party to use any of the Intellectual Property;
(xii) to make, settle, compromise or adjust any claims under or
pertaining to any of the Collateral (including, without limitation,
claims under any policy of insurance); and (xiii) to sell, transfer,
pledge, convey, make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though Secured
Party were the absolute owner thereof for all purposes, and to do, at
Secured Party's option and Debtor's expense, at any time, or from time
to time, all acts and things which Secured Party deems necessary to
protect, preserve, maintain or realize upon the Collateral and Secured
Party's security interest therein.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 21
This power of attorney is a power coupled with an interest and shall be
irrevocable until this Agreement is terminated in accordance with its terms.
Secured Party shall be under no duty to exercise or withhold the exercise of any
of the rights, powers, privileges and options expressly or implicitly granted to
Secured Party in this Agreement, and shall not be liable for any failure to do
so or any delay in doing so. Neither Secured Party nor any Person designated by
Secured Party shall be liable for any act or omission or for any error of
judgment or any mistake of fact or law. This power of attorney is conferred on
Secured Party solely to protect, preserve, maintain and realize upon its
security interest in the Collateral. Secured Party shall not be responsible for
any decline in the value of the Collateral and shall not be required to take any
steps to preserve rights against prior parties or to protect, preserve or
maintain any Lien given to secure the Collateral.
Section 5.2 Set-off. If an Event of Default shall have occurred and be
continuing, Secured Party shall have the right to set-off and apply against the
Obligations, at any time and without notice to Debtor, any and all deposits
(general or special, time or demand, provisional or final) or other sums at any
time credited by or owing from Secured Party to Debtor and although such
Obligations may be unmatured. The rights and remedies of Secured Party hereunder
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that Secured Party may have.
Section 5.3 Assignment by Secured Party. In accordance with the
provisions of the Loan Agreement, Secured Party may at any time assign or
otherwise transfer all or any portion of its rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, the
Obligations), in connection with an assignment of the Obligations, to any other
Person, and such other Person shall thereupon become vested with all the
benefits thereof granted to Secured Party herein or otherwise.
Section 5.4 Performance by Secured Party. If Debtor shall fail to
perform any covenant or agreement contained in this Agreement, Secured Party may
perform or attempt to perform such covenant or agreement on behalf of Debtor. In
such event, Debtor shall, at the request of Secured Party, promptly pay any
amount expended by Secured Party in connection with such performance or
attempted performance to Secured Party, together with interest thereon at the
Default Rate from and including the date of such expenditure to but excluding
the date such expenditure is paid in full. Notwithstanding the foregoing, it is
expressly agreed that Secured Party shall not have any liability or
responsibility for the performance of any obligation of Debtor under this
Agreement.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 22
Section 5.5 License. If no Event of Default shall have occurred and be
continuing, Debtor shall have the exclusive, non-transferrable right and license
to use the Intellectual Property in the ordinary course of business and the
exclusive right to grant to other Persons licenses and sublicenses with respect
to the Intellectual Property for full and fair consideration. Debtor agrees not
to sell or assign its interest in, or grant any sublicense under, the license
granted under this Section 5.5 without the prior written consent of Secured
Party.
Section 5.6 Change of Depository. In the event of the termination by
any financial institution in which any Deposit Account is maintained of any
agreement with or for the benefit of Secured Party, or if any such financial
institution shall fail to comply with any provisions of any such agreement or
any instructions of Secured Party in accordance with any such agreement or this
Agreement, or if Secured Party determines in its sole discretion that the
financial condition of any such financial institution has materially
deteriorated, Debtor agrees to transfer the affected Deposit Account(s) to
another financial institution acceptable to Secured Party and cause such
substitute financial institution to execute such agreements as Secured Party may
require, in form and substance acceptable to Secured Party, to ensure that
Secured Party has a perfected, first priority collateral assignment of or
security interest in the Deposit Account(s) held with such substitute financial
institution. If any affected Deposit Account is a lockbox account, Debtor agrees
to notify its account debtors promptly to remit all payments which were being
sent to the terminated Deposit Account directly to the substitute Deposit
Account.
Section 5.7 Collection of Deposit Accounts. After the occurrence and
during the continuation of an Event of Default, upon written demand from Secured
Party to any financial institution in which any of the Deposit Accounts are
maintained, each such financial institution is hereby authorized and directed by
Debtor to make payment directly to Secured Party of the funds in or credited to
the Deposit Accounts, or such part thereof as Secured Party may request, and
each such financial institution shall be fully protected in relying upon the
written statement of Secured Party that an Event of Default has occurred and is
continuing and that the Deposit Accounts are at the time of such demand assigned
hereunder and that Secured Party is entitled to payment of the Obligations
therefrom. Secured Party's receipt for sums paid it pursuant to such demand
shall be a full and complete release, discharge and acquittance to the
depository or other financial institution making such payment to the extent of
the amount so paid. Debtor hereby authorizes Secured Party, upon (a) Debtor's
failure to make payment of any of the Obligations, or any part thereof, or (b)
any acceleration of the maturity of the Obligations upon the occurrence of any
Event of Default, each as provided in the Loan Agreement, (i) to withdraw,
collect and receipt for any and all funds, securities or other investments on
deposit in or payable on the Deposit Accounts, (ii) on behalf of Debtor to
endorse the name of Debtor upon any checks, drafts or other instruments payable
to Debtor evidencing payment on the Deposit Accounts, and (iii) to surrender or
present for notation of withdrawal the passbook, certificate or other documents
issued to Debtor in connection with the Deposit Accounts. No power granted
herein to Secured Party by Debtor shall terminate upon any disability of Debtor.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 23
ARTICLE 6
Default
Section 6.1 Rights and Remedies. If an Event of Default shall have
occurred and be continuing, Secured Party shall have the following rights and
remedies (subject to Section 6.3):
(a) In addition to all other rights and remedies granted to
Secured Party in this Agreement or in any other Loan Document or by
applicable law, Secured Party shall have all of the rights and remedies
of a secured party under the UCC (whether or not the UCC applies to the
affected Collateral) and Secured Party may also, without notice except
as specified below, sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any exchange, broker's board
or at any of Secured Party's offices or elsewhere, for cash, on credit
or for future delivery, and upon such other terms as Secured Party may
deem commercially reasonable or otherwise as may be permitted by law.
Without limiting the generality of the foregoing, Secured Party may (i)
without demand or notice to Debtor, collect, receive or take possession
of the Collateral or any part thereof and for that purpose Secured
Party may enter upon any premises on which the Collateral is located
and remove the Collateral therefrom or render it inoperable, and/or
(ii) sell, lease or otherwise dispose of the Collateral, or any part
thereof, in one or more parcels at public or private sale or sales, at
Secured Party's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as Secured Party may deem
commercially reasonable or otherwise as may be permitted by law.
Secured Party shall have the right at any public sale or sales, and, to
the extent permitted by applicable law, at any private sale or sales,
to bid (which bid may be, in whole or in part, in the form of
cancellation of indebtedness) and become a purchaser of the Collateral
or any part thereof free of any right or equity of redemption on the
part of Debtor, which right or equity of redemption is hereby expressly
waived and released by Debtor. Upon the request of Secured Party,
Debtor shall assemble the Collateral and make it available to Secured
Party at any place designated by Secured Party that is reasonably
convenient to Debtor and Secured Party. Debtor agrees that Secured
Party shall not be obligated to give more than five (5) days prior
written notice of the time and place of any public sale or of the time
after which any private sale may take place and that such notice shall
constitute reasonable notice of such matters. Secured Party shall not
be obligated to make any sale of Collateral if it shall determine not
to do so, regardless of the fact that notice of sale of Collateral may
have been given. Secured Party may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned
from time to time by announcement at the time and place fixed for sale,
and such sale may, without further notice, be made at the time and
place to which the same was so adjourned. Debtor shall be liable for
all expenses of retaking, holding, preparing for sale or the like, and
all attorneys' fees, legal expenses and other costs and expenses
incurred by Secured Party in connection with the collection of the
Obligations and the enforcement of Secured Party's rights under this
Agreement. Debtor shall remain liable for any deficiency if the
Proceeds of any sale or other disposition of the Collateral applied to
the Obligations are insufficient to pay the Obligations in full.
Secured Party may apply the Collateral against the Obligations in such
order and manner as Secured Party may elect in its sole discretion.
Debtor waives all rights of marshaling, valuation and appraisal in
respect of the Collateral. Any cash held by Secured Party as Collateral
and all cash proceeds received by Secured Party in respect of any sale
of, collection from or other realization upon all or any part of the
Collateral may, in the discretion of Secured Party, be held by Secured
Party as collateral for, and then or at any time thereafter applied in
whole or in part by Secured Party against, the Obligations in such
order as Secured Party shall select. Any surplus of such cash or cash
proceeds and interest accrued thereon, if any, held by Secured Party
and remaining after payment in full of all the Obligations shall be
paid over to Debtor or to whomsoever may be lawfully entitled to
receive such surplus; provided that Secured Party shall have no
obligation to invest or otherwise pay interest on any amounts held by
it in connection with or pursuant to this Agreement.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 24
(b) Secured Party may cause any or all of the Collateral held
by it to be transferred into the name of Secured Party or the name or
names of Secured Party's nominee or nominees.
(c) Secured Party may exercise any and all rights and remedies
of Debtor under or in respect of the Collateral, including, without
limitation, any and all rights of Debtor to demand or otherwise require
payment of any amount under, or performance of any provision of, any of
the Collateral and any and all voting rights and corporate powers in
respect of the Collateral.
(d) Secured Party may collect or receive all money or property
at any time payable or receivable on account of or in exchange for any
of the Collateral, but shall be under no obligation to do so.
(e) On any sale of the Collateral, Secured Party is hereby
authorized to comply with any limitation or restriction with which
compliance is necessary, in the view of Secured Party's counsel, in
order to avoid any violation of applicable law or in order to obtain
any required approval of the purchaser or purchasers by any applicable
Governmental Authority.
(f) For purposes of enabling Secured Party to exercise its
rights and remedies under this Section 6.1 and enabling Secured Party
and its successors and assigns to enjoy the full benefits of the
Collateral, Debtor hereby grants to Secured Party an irrevocable,
nonexclusive license (exercisable without payment of royalty or other
compensation to Debtor) to use, assign, license or sublicense any of
the Intellectual Property, including in such license reasonable access
to all media in which any of the licensed items may be recorded or
stored and all computer programs used for the completion or printout
thereof. This license shall also inure to the benefit of all
successors, assigns and transferees of Secured Party.
(g) Secured Party may require that Debtor assign all of its
right, title and interest in and to the Intellectual Property or any
part thereof to Secured Party or such other Person as Secured Party may
designate pursuant to documents satisfactory to Secured Party.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 25
Section 6.2 Registration Rights, Private Sales, Etc.
(a) If Secured Party shall determine to exercise its right to
sell all or any of the Collateral pursuant to Section 6.1, Debtor
agrees that, upon the request of Secured Party (which request may be
made by Secured Party in its sole discretion), Debtor will, at its own
expense:
(i) execute and deliver, and cause each issuer of any
of the Collateral contemplated to be sold and the directors
and officers thereof to execute and deliver, all such
agreements, documents and instruments, and do or cause to be
done all such other acts and things, as may be necessary or,
in the opinion of Secured Party, advisable to register such
Collateral under the provisions of the Securities Act (as
hereinafter defined) and to cause the registration statement
relating thereto to become effective and to remain effective
for such period as prospectuses are required by law to be
furnished and to make all amendments and supplements thereto
and to the related prospectus which, in the opinion of Secured
Party, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission
applicable thereto;
(ii) use its best efforts to qualify such Collateral
under all applicable state securities or "Blue Sky" laws and
to obtain all necessary governmental approvals for the sale of
such Collateral, as requested by Secured Party;
(iii) cause each such issuer to make available to its
security holders, as soon as practicable, an earnings
statement which will satisfy the provisions of Section 11(a)
of the Securities Act;
(iv) do or cause to be done all such other acts and
things as may be reasonably necessary to make such sale of the
Collateral or any part thereof valid and binding and in
compliance with applicable law; and
(v) bear all reasonable costs and expenses, including
reasonable attorneys' fees, of carrying out its obligations
under this Section 6.2.
(b) Debtor recognizes that Secured Party may be unable to
effect a public sale of any or all of the Collateral by reason of
certain prohibitions contained in the Securities Act of 1933, as
amended from time to time (the "Securities Act") and applicable state
securities laws but may be compelled to resort to one or more private
sales thereof to a restricted group of purchasers who will be obliged
to agree, among other things, to acquire such Collateral for their own
account for investment and not with a view to the distribution or
resale thereof. Debtor acknowledges and agrees that any such private
sale may result in prices and other terms less favorable to the seller
than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall, to the extent
permitted by law, be deemed to have been made in a commercially
reasonable manner. Secured Party shall not be under any obligation to
delay a sale of any of the Collateral for the period of time necessary
to permit the issuer of such securities to register such securities
under the Securities Act or under any applicable state securities laws,
even if such issuer would agree to do so.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 26
(c) Debtor further agrees to do or cause to be done, to the
extent that Debtor may do so under applicable law, all such other acts
and things as may be necessary to make such sales or resales of any
portion or all 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 Debtor's expense.
Debtor further agrees that a breach of any of the covenants contained
in this Section 6.2 will cause irreparable injury to Secured Party and
that Secured Party has no adequate remedy at law in respect of such
breach and, as a consequence, agrees that each and every covenant
contained in this Section 6.2 shall be specifically enforceable against
Debtor, and Debtor hereby waives and agrees, to the fullest extent
permitted by law, not to assert as a defense against an action for
specific performance of such covenants that (i) Debtor's failure to
perform such covenants will not cause irreparable injury to Secured
Party or (ii) Secured Party has an adequate remedy at law in respect of
such breach. Debtor further acknowledges the impossibility of
ascertaining the amount of damages which would be suffered by Secured
Party by reason of a breach of any of the covenants contained in this
Section 6.2 and, consequently, agrees that, if Debtor shall breach any
of such covenants and Secured Party shall ▇▇▇ for damages for such
breach, Debtor shall pay to Secured Party, as liquidated damages and
not as a penalty, an aggregate amount equal to the value of the
Collateral on the date Secured Party shall demand compliance with this
Section 6.2.
(d) DEBTOR HEREBY AGREES TO INDEMNIFY, PROTECT AND SAVE
HARMLESS SECURED PARTY AND ANY CONTROLLING PERSONS THEREOF WITHIN THE
MEANING OF THE SECURITIES ACT FROM AND AGAINST ANY AND ALL LIABILITIES,
SUITS, CLAIMS, COSTS AND EXPENSES (INCLUDING COUNSEL FEES AND
DISBURSEMENTS) ARISING UNDER THE SECURITIES ACT, THE SECURITIES AND
EXCHANGE ACT OF 1934, AS AMENDED, ANY APPLICABLE STATE SECURITIES
STATUTE, OR AT COMMON LAW, OR PURSUANT TO ANY OTHER APPLICABLE LAW IN
CONNECTION WITH THE SALE OF ANY SECURITIES OR THE EXERCISE OF ANY OTHER
RIGHT OR REMEDY OF SECURED PARTY, INSOFAR AS SUCH LIABILITIES, SUITS,
CLAIMS, COSTS AND EXPENSES ARISE OUT OF, OR ARE BASED UPON, ANY UNTRUE
STATEMENT OR ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT MADE IN
CONNECTION WITH THE SALE OR PROPOSED SALE OF ANY PART OF THE
COLLATERAL, OR ARISES OUT OF, OR IS BASED UPON, THE OMISSION OR ALLEGED
OMISSION TO STATE A MATERIAL FACT REQUIRED TO BE STATED IN CONNECTION
THEREWITH OR NECESSARY TO MAKE THE STATEMENTS MADE NOT MISLEADING;
PROVIDED, HOWEVER, THAT DEBTOR SHALL NOT BE LIABLE IN ANY SUCH CASE TO
THE EXTENT THAT ANY SUCH LIABILITIES, SUITS, CLAIMS, COSTS AND EXPENSES
ARISE OUT OF, OR ARE BASED UPON, ANY UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT OR OMISSION OR ALLEGED OMISSION MADE IN RELIANCE UPON AND IN
CONFORMITY WITH WRITTEN INFORMATION FURNISHED TO DEBTOR BY SECURED
PARTY SPECIFICALLY FOR INCLUSION IN CONNECTION THEREWITH. THE FOREGOING
INDEMNITY AGREEMENT IS IN ADDITION TO ANY INDEBTEDNESS, LIABILITY OR
OBLIGATION THAT DEBTOR MAY OTHERWISE HAVE TO SECURED PARTY OR ANY SUCH
CONTROLLING PERSON.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 27
ARTICLE 7
Miscellaneous
Section 7.1 No Waiver; Cumulative Remedies. No failure on the part of
Secured Party to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided for in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
Section 7.2 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of Debtor and Secured Party and their respective
heirs, successors and permitted assigns, except that Debtor may not assign any
of its rights, indebtedness, liabilities or obligations under this Agreement
without the prior written consent of Secured Party.
Section 7.3 Entire Agreement; Amendment . THIS AGREEMENT EMBODIES THE
FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDES ANY AND ALL
PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER
WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES HERETO. The provisions of this Agreement may be
amended or waived only by an instrument in writing signed by the parties hereto,
except as provided in Section 4.15(g).
Section 7.4 Notices. All notices and other communications provided for
in this Agreement shall be given or made by telecopy or in writing and
telecopied, mailed by certified mail return receipt requested, or delivered to
the intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof, or, as to any party, at such other address as shall
be designated by such party in a notice to the other party given in accordance
with this Section 7.4. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopy or when personally delivered or, in the case of a mailed notice, three
(3) Business Days after deposit in the mails, in each case given or addressed as
aforesaid; provided, however, that notices to Secured Party shall be deemed
given when received by Secured Party.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 28
Section 7.5 Governing Law; Venue; Submission to Jurisdiction. THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF, EXCEPT TO THE EXTENT PERFECTION AND THE
EFFECT OF PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST GRANTED
HEREUNDER OR THEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL, ARE GOVERNED
BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF TEXAS. THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS ARE PERFORMABLE BY THE PARTIES IN DALLAS COUNTY, TEXAS.
DEBTOR AND SECURED PARTY EACH AGREE THAT DALLAS COUNTY, TEXAS, SHALL BE THE
EXCLUSIVE VENUE FOR LITIGATION OF ANY DISPUTE OR CLAIM ARISING UNDER OR RELATING
TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND THAT SUCH COUNTY IS A
CONVENIENT FORUM IN WHICH TO DECIDE ANY SUCH DISPUTE OR CLAIM. DEBTOR AND
SECURED PARTY EACH CONSENT TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL
COURTS LOCATED IN DALLAS COUNTY, TEXAS FOR THE LITIGATION OF ANY SUCH DISPUTE OR
CLAIM. DEBTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 7.6 Headings. The headings, captions and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Section 7.7 Survival of Representations and Warranties. All
representations and warranties made in this Agreement or in any certificate
delivered pursuant hereto shall survive the execution and delivery of this
Agreement, and no investigation by Secured Party shall affect the
representations and warranties or the right of Secured Party to rely upon them.
Section 7.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 7.9 Waiver of Bond. In the event Secured Party seeks to take
possession of any or all of the Collateral by judicial process, Debtor hereby
irrevocably waives any bonds and any surety or security relating thereto that
may be required by applicable law as an incident to such possession, and waives
any demand for possession prior to the commencement of any such suit or action.
Section 7.10 Severability. Any provision of this Agreement which is
determined by a court of competent jurisdiction to be 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 of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 29
Section 7.11 Construction. Debtor and Secured Party acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement with its legal counsel and that
this Agreement shall be construed as if jointly drafted by Debtor and Secured
Party.
Section 7.12 Termination. If all of the Obligations shall have been
paid and performed in full and all Commitments of Secured Party shall have
expired or terminated, Secured Party shall, upon the written request of Debtor,
execute and deliver to Debtor a proper instrument or instruments acknowledging
the release and termination of the security interests created by this Agreement,
and shall duly assign and deliver to Debtor (without recourse and without any
representation or warranty) such of the Collateral as may be in the possession
of Secured Party and has not previously been sold or otherwise applied pursuant
to this Agreement.
Section 7.13 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF SECURED
PARTY IN THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT THEREOF.
Section 7.14 Consigned Inventory. Notwithstanding anything to the
contrary contained herein or in any other Loan Document, Debtor (a) may maintain
Inventory at locations other than those set forth in Schedule 5 (the "Offsite
Inventory") and (b) shall not be required to execute UCC-1 Financing Statements
for the jurisdictions in which the Offsite Inventory are located, provided,
that, the book value of all Offsite Inventory (as defined in each of the
respective Amended and Restated Pledge and Security Agreements dated the date
hereof executed by Karts International Incorporated and each of its Subsidiaries
in favor of Secured Party) of Karts International Incorporated and each of its
Subsidiaries does not exceed $50,000 in the aggregate.
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AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 30
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
DEBTOR:
USA INDUSTRIES, INCORPORATED
By: ____________________________________
Name: ____________________________________
Title:
-------------------------------------
Address for Notices:
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P. ▇. ▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: President
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 31
SECURED PARTY:
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THE ▇▇▇▇▇▇▇▇▇ FOUNDATION
By:
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Name:
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Title:
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AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
(USA Industries, Incorporated) - Page 32
