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EXHIBIT 10.4
BORROWER PLEDGE AND SECURITY AGREEMENT, DATED AS OF FEBRUARY
20, 2002, MADE BY EACH DOMESTIC SUBSIDIARY OF AMERICAN
ACHIEVEMENT CORPORATION FROM TIME TO TIME PARTY HERETO IN
FAVOR OF THE BANK OF NOVA SCOTIA, AS ADMINISTRATIVE AGENT FOR
EACH OF THE SECURED PARTIES (AS DEFINED THEREIN)
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BORROWER PLEDGE AND SECURITY AGREEMENT
This BORROWER PLEDGE AND SECURITY AGREEMENT, dated as of February 20, 2002
(as amended, supplemented, amended and restated or otherwise modified from time
to time, this "AGREEMENT"), is made by AMERICAN ACHIEVEMENT CORPORATION
(formerly known as Commemorative Brands Holding Corp.), a Delaware corporation
(the "GRANTOR"), in favor of THE BANK OF NOVA SCOTIA, as administrative agent
(together with its successor(s) thereto in such capacity, the "ADMINISTRATIVE
AGENT") for each of the Secured Parties.
W I T N E S S E T H :
WHEREAS, pursuant to a Credit Agreement, dated as of the date hereof (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among the Grantor (as the Borrower), the Lenders,
General Electric Capital Corporation, as the Syndication Agent for the Lenders,
Bankers Trust Company, as the Documentation Agent for the Lenders and the
Administrative Agent, the Lenders and the Issuer have extended Commitments to
make Credit Extensions to the Grantor; and
WHEREAS, as a condition precedent to the making of the Credit Extensions
under the Credit Agreement, the Grantor is required to execute and deliver this
Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Grantor agrees, for the
benefit of each Secured Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN TERMS. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE.
"AGREEMENT" is defined in the PREAMBLE.
"COLLATERAL" is defined in SECTION 2.1.
"COLLATERAL ACCOUNT" is defined in CLAUSE (b) of SECTION 4.3.
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"COMPUTER HARDWARE AND SOFTWARE COLLATERAL" means:
(a) all computer and other electronic data processing hardware,
integrated computer systems, central processing units, memory units, display
terminals, printers, features, computer elements, card readers, tape drives,
hard and soft disk drives, cables, electrical supply hardware, generators, power
equalizers, accessories and all peripheral devices and other related computer
hardware;
(b) all software programs (including both source code, object
code and all related applications and data files), whether now owned, licensed
or leased or hereafter acquired by the Grantor, designed for use on the
computers and electronic data processing hardware described in CLAUSE (a) above;
(c) all firmware associated therewith;
(d) all documentation (including flow charts, logic diagrams,
manuals, guides and specifications) with respect to such hardware, software and
firmware described in the preceding CLAUSES (b) through (c); and
(e) all rights with respect to all of the foregoing, including
any and all copyrights, licenses, options, warranties, service contracts,
program services, test rights, maintenance rights, support rights, improvement
rights, renewal rights and indemnifications and any substitutions, replacements,
additions or model conversions of any of the foregoing.
"CONTROL AGREEMENT" means an agreement in form and substance satisfactory
to the Administrative Agent which provides for the Administrative Agent to have
"control" (as defined in Section 8-106 of the UCC, as such term relates to
investment property (other than certificated securities or commodity contracts),
or as used in Section 9-106 of the UCC, as such term relates to commodity
contracts).
"COPYRIGHT COLLATERAL" means all copyrights of the Grantor, whether
statutory or common law, registered or unregistered and whether published or
unpublished, now or hereafter in force throughout the world including all of the
Grantor's rights, titles and interests in and to all copyrights registered in
the United States Copyright Office or anywhere else in the world, including the
copyrights referred to in ITEM A of SCHEDULE V hereto, and registrations and
recordings thereof and all applications for registration thereof, whether
pending or in preparation, all copyright licenses, including each copyright
license referred to in ITEM B of SCHEDULE V hereto, the right to sue for past,
present and future infringements of any of the foregoing, all rights
corresponding thereto, all extensions and renewals of any thereof and all
proceeds of the foregoing, including licenses, royalties, income, payments,
claims, damages and proceeds of suit.
"CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"DISTRIBUTIONS" means all non-cash dividends paid on Capital Securities,
liquidating dividends paid on Capital Securities, Capital Securities resulting
from (or in connection with the exercise of) stock splits, reclassifications,
warrants, options, non-cash dividends, mergers and consolidations, and all other
distributions (whether similar or dissimilar to the foregoing) on or with
respect to any Capital Securities constituting Collateral, but excluding
Dividends.
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"DIVIDENDS" means cash dividends and cash distributions with respect to any
Capital Securities constituting Collateral that are not a liquidating dividend.
"GOLD CONSIGNOR" means The Bank of Nova Scotia, in its capacity as
consignor under the Gold Consignment Agreement (or its Affiliates in such
capacity).
"GRANTOR" is defined in the PREAMBLE.
"INTELLECTUAL PROPERTY COLLATERAL" means, collectively, the Computer
Hardware and Software Collateral, the Copyright Collateral, the Patent
Collateral, the Trademark Collateral and the Trade Secrets Collateral.
"PATENT COLLATERAL" means:
(a) all letters patent and applications for letters patent
throughout the world, including all patent applications in preparation for
filing and each patent and patent application referred to in ITEM A of
SCHEDULE III hereto;
(b) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the items described in
CLAUSE (a);
(c) all patent licenses, and other agreements providing the Grantor
with the right to use any items of the type referred to in CLAUSES (a) and
(b) above, including each patent license referred to in ITEM B of SCHEDULE
III hereto; and
(d) all proceeds of, and rights associated with, the foregoing
(including license royalties and proceeds of infringement suits), the right
to sue third parties for past, present or future infringements of any
patent or patent application, and for breach or enforcement of any patent
license.
"PLEDGED NOTE" means a promissory note payable to the Grantor, in form and
substance satisfactory to the Administrative Agent, as amended, modified or
supplemented from time to time in accordance with CLAUSE (c) of SECTION 4.7,
together with any notes delivered in extension or renewal thereof or
substitution therefor.
"RECEIVABLES" is defined in CLAUSE (c) of SECTION 2.1.
"RELATED CONTRACTS" is defined in CLAUSE (c) of SECTION 2.1.
"RESTRICTED ASSET" is defined in SECTION 2.1.
"SECURED PARTY" means, collectively, (i) each of the Secured Parties, as
such term is defined in the Credit Agreement and (ii) the Gold Consignor.
"SECURITIES ACT" is defined in CLAUSE (a) of SECTION 6.2.
"SPECIFIED EVENT" means the occurrence and continuance of a Default under
clauses (a) through (d) of Section 8.1.9 of the Credit Agreement or any other
Event of Default.
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"TERMINATION DATE" means the date on which (i) all Obligations (other than
contingent indemnification obligations to the extent no unsatisfied claim giving
rise thereto has been asserted) have been paid in full in cash, all Letters of
Credit have been terminated or expired (or been Cash Collateralized), all Rate
Protection Agreements have been terminated and all Commitments shall have
terminated and (ii) all obligations (other than contingent indemnification
obligations to the extent no unsatisfied claim giving rise thereto has been
asserted) arising under or in connection with the Gold Consignment Agreement
(and related documents and instruments) have been paid in full in cash and all
commitments of the Gold Consignor thereunder have terminated.
"TRADEMARK COLLATERAL" means:
(a) (i) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, service
marks, certification marks, collective marks, logos and other source or
business identifiers, and all goodwill of the business associated
therewith, now existing or hereafter adopted or acquired including those
referred to in ITEM A of SCHEDULE IV hereto, whether currently in use or
not, all registrations and recordings thereof and all applications in
connection therewith, whether pending or in preparation for filing,
including registrations, recordings and applications in the United States
Patent and Trademark Office or in any office or agency of the United States
of America or any State thereof or any other country or political
subdivision thereof or otherwise, and all common-law rights relating to the
foregoing, and (ii) the right to obtain all reissues, extensions or
renewals of the foregoing (collectively referred to as the "TRADEMARK");
(b) all Trademark licenses for the grant by or to the Grantor of
any right to use any Trademark, including each Trademark license referred
to in ITEM B of SCHEDULE IV hereto;
(c) all of the goodwill of the business connected with the use of,
and symbolized by the items described in, CLAUSE (a) and, to the extent
applicable, CLAUSE (b);
(d) the right to sue third parties for past, present and future
infringements of any Trademark Collateral described in CLAUSE (a) and, to
the extent applicable, CLAUSE (b); and
(e) all proceeds of, and rights associated with, the foregoing,
including any claim by the Grantor against third parties for past, present
or future infringement or dilution of any Trademark, Trademark registration
or Trademark license, or for any injury to the goodwill associated with the
use of any such Trademark or for breach or enforcement of any Trademark
license and all rights corresponding thereto throughout the world.
"TRADE SECRETS COLLATERAL" means all common law and statutory trade secrets
and all other confidential, proprietary or useful information and all know-how
obtained by or used in or contemplated at any time for use in the business of
the Grantor (all of the foregoing being collectively called a "TRADE SECRET"),
whether or not such Trade Secret has been reduced to a writing or other tangible
form, including all documents and things embodying, incorporating or referring
in any way to such Trade Secret, all Trade Secret licenses, including each Trade
Secret
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license referred to in SCHEDULE VI hereto, and including the right to sue for
and to enjoin and to collect damages for the actual or threatened
misappropriation of any Trade Secret and for the breach or enforcement of any
such Trade Secret license.
SECTION 1.2. CREDIT AGREEMENT DEFINITIONS. Unless otherwise defined herein
or the context otherwise requires, terms used in this Agreement, including its
preamble, recitals, schedules and exhibits, have the meanings provided in the
Credit Agreement.
SECTION 1.3. UCC DEFINITIONS. Unless otherwise defined herein or in the
Credit Agreement or the context otherwise requires, terms for which meanings are
provided in the UCC are used in this Agreement, including its preamble,
recitals, schedules and exhibits, with such meanings.
ARTICLE II
SECURITY INTEREST
SECTION 2.1. GRANT OF SECURITY INTEREST. The Grantor hereby assigns,
pledges, hypothecates, charges, mortgages, delivers, and transfers to the
Administrative Agent, for its benefit and the ratable benefit of each other
Secured Party, and hereby grants to the Administrative Agent, for its benefit
and the ratable benefit of each other Secured Party, a continuing security
interest in all assets, including without limitation all of the following
property, whether tangible or intangible, whether now or hereafter existing,
owned or acquired by the Grantor, and wherever located (the "COLLATERAL"):
(a) (i) all investment property in which the Grantor has an
interest (including the Capital Securities of each issuer of such Capital
Securities described in SCHEDULE I hereto) and (ii) all other Capital Securities
which are interests in limited liability companies or partnerships in which the
Grantor has an interest (including the Capital Securities of each issuer of such
Capital Securities described in ITEM A of SCHEDULE I hereto), in each case
together with Dividends and Distributions payable in respect of the Collateral
described in the foregoing CLAUSES (a)(i) and (a)(ii);
(b) all goods, including all equipment (including any
equipment that is or may constitute a fixture) and inventory in all of its forms
of the Grantor;
(c) all accounts, contracts, contract rights, chattel paper,
documents, instruments, promissory notes (including Pledged Notes described in
ITEM B of SCHEDULE I) and general intangibles (including tax refunds and all
payment intangibles) of the Grantor, whether or not arising out of or in
connection with the sale or lease of goods or the rendering of services, and all
rights of the Grantor now or hereafter existing in and to all security
agreements, guaranties, leases and other contracts securing or otherwise
relating to any such accounts, contracts, contract rights, chattel paper,
documents, instruments, promissory notes and general intangibles (all of the
foregoing collectively referred to as the "RECEIVABLES", and any and all such
security agreements, guaranties, leases and other contracts collectively
referred to as the "RELATED CONTRACTS");
(d) all Intellectual Property Collateral of the Grantor;
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(e) all deposit accounts (including the Collateral Account) of
the Grantor and all cash, checks, drafts, notes, bills of exchange, money
orders, other like instruments and all investment property held in the
Collateral Account (or in any sub-account thereof) and all interest and earnings
in respect thereof;
(f) all of the Grantor's letter of credit rights;
(g) all commercial tort claims in which the Grantor has rights
(including as a plaintiff), as set forth on ITEM F of SCHEDULE II hereto;
(h) all books, records, writings, data bases, information and
other property relating to, used or useful in connection with, evidencing,
embodying, incorporating or referring to, any of the foregoing in this Section;
(i) all of the Grantor's other property and rights of every
kind and description and interests therein; and
(j) all products, offspring, rents, issues, profits, returns,
income, supporting obligations and proceeds of and from any and all of the
foregoing Collateral (including proceeds which constitute property of the types
described in CLAUSES (a) through (i), and, to the extent not otherwise included,
all payments under insurance (whether or not the Administrative Agent is the
loss payee thereof), or any indemnity, warranty or guaranty payable by reason of
loss or damage to or otherwise with respect to any of the foregoing Collateral).
Notwithstanding the foregoing, "Collateral" shall not include (i) the Grantor's
real property leaseholds; (ii) any general intangibles or other rights arising
under any contracts, instruments, licenses or other documents as to which the
grant of a security interest would (A) constitute a violation of a valid and
enforceable restriction in favor of a third party on such grant, unless and
until any required consents shall have been obtained or (B) give any other party
to such contract, instrument, license or other document the right to terminate
its obligations thereunder (the "RESTRICTED ASSETS"), PROVIDED that this clause
shall not limit the grant of any security interest in any proceeds of any
Restricted Asset or any Restricted Asset to the extent that the UCC or any other
applicable law provides that such grant of security interest is effective
irrespective of any prohibitions to such grant provided in the underlying
contract, instrument, license or other document; and (iii) Capital Securities of
a Foreign Subsidiary in excess of 65% of the total combined voting power of all
Capital Securities of such Foreign Subsidiary (other than a Foreign Subsidiary
that (i) is treated as a partnership under the Code or (ii) is not treated as an
entity that is separate from the Grantor); PROVIDED, that, if any change in, or
the introduction, adoption, effectiveness, interpretation, reinterpretation or
phase in of, any law or regulation, directive or guidelines of any Governmental
Authority could reasonably be expected to reduce the amount of United States
federal income tax that would otherwise be payable by the Grantor if it pledged
more than 65% of such combined voting power, then the Administrative Agent or
the Required Lenders may require the Grantor to pledge more than 65% of the
Capital Securities of such Foreign Subsidiary.
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SECTION 2.2. SECURITY FOR OBLIGATIONS. This Agreement and the Collateral in
which the Administrative Agent for the benefit of the Secured Parties is granted
a security interest hereunder by the Grantor secures the payment of all
Obligations now or hereafter existing.
SECTION 2.3. GRANTOR REMAINS LIABLE. Anything herein to the contrary
notwithstanding
(a) the Grantor will remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein, and will
perform all of its duties and obligations under such contracts and agreements to
the same extent as if this Agreement had not been executed;
(b) the exercise by the Administrative Agent of any of its
rights hereunder will not release the Grantor from any of its duties or
obligations under any contracts or agreements included in the Collateral; and
(c) no Secured Party will have any obligation or liability
(other than as a result of such Secured Party's gross negligence or willful
misconduct) under any contracts or agreements included in the Collateral by
reason of this Agreement, nor will any Secured Party be obligated to perform any
of the obligations or duties of the Grantor thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
SECTION 2.4. DIVIDENDS ON PLEDGED SHARES. In the event that any Dividend
with respect to any Capital Securities pledged hereunder is permitted to be paid
(in accordance with Section 7.2.6 of the Credit Agreement), such Dividend or
payment may be paid directly to the Grantor. If any Dividend or payment is paid
in contravention of Section 7.2.6 of the Credit Agreement, then the Grantor
shall hold the same segregated and in trust for the Administrative Agent until
paid to the Administrative Agent in accordance with SECTION 4.1.5 hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Secured Parties (other than the Gold Consignor) to
enter into the Credit Agreement and make Credit Extensions thereunder, to induce
Secured Parties (other than the Gold Consignor) to enter into Rate Protection
Agreements, and to induce the Gold Consignor to continue its obligations under
the Gold Consignment Agreement, the Grantor represents and warrants to each
Secured Party as set forth below.
SECTION 3.1. AS TO CAPITAL SECURITIES OF THE SUBSIDIARIES. With respect to
any Subsidiary of the Grantor that is
(a) a corporation, business trust, joint stock company or
similar Person, all Capital Securities issued by such Subsidiary are duly
authorized and validly issued, fully paid and non-assessable, and represented by
a certificate; and
(b) a partnership or limited liability company, no Capital
Securities issued by such Subsidiary (i) are dealt in or traded on securities
exchanges or in securities markets, (ii)
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expressly provide that such Capital Securities are a security governed by
Article 8 of the UCC, (iii) are held in a securities account or (iv) are
represented by a certificate.
The percentage of the issued and outstanding Capital Securities of each
Subsidiary pledged by the Grantor hereunder as of the Closing Date is as set
forth on SCHEDULE I hereto.
SECTION 3.2. GRANTOR NAME, ETC. The Grantor's jurisdiction of incorporation
is Delaware. The Grantor does not have any trade names other than those set
forth in ITEM A of SCHEDULE II hereto. During the four months preceding the date
hereof, the Grantor has not been known by any legal name different from the one
set forth on the signature page hereto (other than Commemorative Brands Holding
Corp.), nor has the Grantor been the subject of any merger or other corporate
reorganization. During the four months preceding the date hereof, the Grantor's
equipment and inventory (if any) has been located at the places set forth in
ITEM B of SCHEDULE II hereto. The Grantor's federal taxpayer identification
number and organizational identification number are (and, during the four months
preceding the date hereof, the Grantor has not had a federal taxpayer
identification number or organizational identification number different from
that) set forth in ITEM C of SCHEDULE II hereto. If the Collateral of the
Grantor includes any inventory located in the State of California, the Grantor
is not a "retail merchant" within the meaning of Section 9102 of the California
UCC. The Grantor is not a party to any federal, state or local government
contract which is part of the Collateral except as set forth in ITEM D of
SCHEDULE II hereto. The Grantor does not maintain any deposit accounts with any
Person except as set forth in ITEM E of SCHEDULE II hereto. As of the Closing
Date, the Grantor has rights with respect to the commercial tort claims set
forth on ITEM F of SCHEDULE II hereto.
SECTION 3.3. OWNERSHIP, NO LIENS, ETC. The Grantor owns its Collateral free
and clear of any Lien, except for Liens (a) created by this Agreement and (b) in
the case of Collateral other than any investment property (including Capital
Securities), permitted by Section 7.2.3 of the Credit Agreement. No effective
financing statement or other filing similar in effect covering any Collateral is
on file in any recording office, except those filed in favor of the
Administrative Agent relating to this Agreement or those filed in connection
with Liens permitted by Section 7.2.3 of the Credit Agreement or as to which a
termination statement relating to such financing statement or other instrument
has been delivered to the Administrative Agent on the Closing Date. The Grantor
does not own any Restricted Assets that would impair, in any material respect,
the Administrative Agent's ability to sell or otherwise transfer the Grantor's
business as a going concern.
SECTION 3.4. POSSESSION OF INVENTORY, ETC. The Grantor agrees that it will
maintain exclusive possession of its goods, instruments, promissory notes and
inventory, other than (a) inventory in transit in the ordinary course of
business, (b) instruments or promissory notes that have been delivered to the
Administrative Agent pursuant to SECTION 3.5 or (c) as otherwise permitted
hereunder.
SECTION 3.5. NEGOTIABLE DOCUMENTS, INSTRUMENTS AND CHATTEL PAPER. The
Grantor has delivered to the Administrative Agent possession of all originals of
all negotiable documents, instruments, promissory notes (including Pledged
Notes) and chattel paper owned or held by the Grantor on the Closing Date.
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SECTION 3.6. INTELLECTUAL PROPERTY COLLATERAL. With respect to any
Intellectual Property Collateral the loss, impairment or infringement of which
could reasonably be expected to have a Material Adverse Effect:
(a) such Intellectual Property Collateral is subsisting and
has not been adjudged invalid or unenforceable, in whole or in part;
(b) such Intellectual Property Collateral is valid and
enforceable;
(c) the Grantor has made all necessary filings and
recordations to protect its interest in such Intellectual Property Collateral,
including recordations of all of its interests in the Patent Collateral and
Trademark Collateral in the United States Patent and Trademark Office and
(subject to the terms of the Credit Agreement) in corresponding offices
throughout the world, and its claims to the Copyright Collateral in the United
States Copyright Office and (subject to the terms of the Credit Agreement) in
corresponding offices throughout the world;
(d) the Grantor is the exclusive owner of the entire and
unencumbered right, title and interest in and to such Intellectual Property
Collateral and no claim has been made that the use of such Intellectual Property
Collateral does or may violate the asserted rights of any third party; and
(e) the Grantor has performed and will continue to perform all
acts and has paid and will continue to pay all required fees and Taxes to
maintain each and every such item of Intellectual Property Collateral in full
force and effect throughout the world, as applicable.
The Grantor owns directly or is entitled to use by license or otherwise, all
patents, Trademarks, Trade Secrets, copyrights, mask works, licenses,
technology, know-how, processes and rights with respect to any of the foregoing
used in, necessary for or of importance to the conduct of the Grantor's
business.
SECTION 3.7. VALIDITY, ETC. This Agreement creates a valid security
interest in favor of the Administrative Agent (for the benefit of the Secured
Parties) in the Collateral as security for the Obligations. The Administrative
Agent's having possession of all instruments and cash constituting Collateral
from time to time, the recording of the Patent Security Agreement, the Trademark
Security Agreement, and the Copyright Security Agreement, as applicable,
executed pursuant hereto in the United States Patent and Trademark Office and
the United States Copyright Office, as applicable, and the filing of the Filing
Statements described in SCHEDULE VII hereto and, with respect to Patent
Collateral, Trademark Collateral and Copyright Collateral hereafter existing and
not covered by a Patent Security Agreement, Trademark Security Agreement or
Copyright Security Agreement, as applicable, the recording in the United States
Patent and Trademark Office and the United States Copyright Office, as
applicable, of appropriate instruments of assignment, result in the perfection
of such security interests. Such security interests are, or in the case of
Collateral in which the Grantor obtains rights after the date hereof, will be,
perfected, first priority security interests, subject only to the security
interests and other Liens permitted pursuant to Section 7.2.3 of the Credit
Agreement and the recording of such instruments of assignment. Such recordings
and filings and all other action necessary or
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desirable to perfect and protect such security interest have been duly taken,
except for the Administrative Agent's having possession of instruments and cash
constituting Collateral after the date hereof and the other filings and
recordations described in SECTION 3.8 hereof.
SECTION 3.8. AUTHORIZATION, APPROVAL, ETC. Except as have been obtained or
made and are in full force and effect, no authorization, approval or other
action by, and no notice to or filing with, any Governmental Authority is
required either
(a) for the grant by the Grantor of the security interest
granted hereby, the pledge by the Grantor of any Collateral pursuant hereto or
for the execution, delivery and performance of this Agreement by the Grantor;
(b) for the perfection of or the exercise by the
Administrative Agent of its rights and remedies hereunder except (A) the filing
under the UCC as in effect in the applicable jurisdiction of the Filing
Statements described in SCHEDULE VII hereto, (B) with respect to the perfection
of the security interest created hereby in Patent Collateral, Trademark
Collateral and Copyright Collateral in the United States, for the recording of
the Patent Security Agreement, Trademark Security Agreement and Copyright
Security Agreement, as applicable, in the United States Patent and Trademark
Office and the United States Copyright Office, as applicable, (C) with respect
to the perfection of the security interest created hereby in foreign Patent
Collateral, Trademark Collateral and Copyright Collateral, for registrations and
filings in jurisdictions located outside of the United States and covering
rights in such jurisdictions relating to Patent Collateral, Trademark Collateral
and Copyright Collateral, and (D) with respect to the perfection of the security
interest created hereby in motor vehicles for which the title to such motor
vehicles is governed by a certificate of title or ownership (collectively, the
"MOTOR VEHICLES"), for the submission of an appropriate application requesting
that the Lien of the Administrative Agent be noted on the certificate of title
or ownership, completed and authenticated by the Grantor, together with the
certificate of title, with respect to each Motor Vehicle, to the appropriate
state agency; or
(c) for the exercise by the Administrative Agent of the voting
or other rights provided for in this Agreement, or, except with respect to any
securities issued by a Subsidiary of the Grantor, as may be required in
connection with a disposition of such securities by laws affecting the offering
and sale of securities generally and the remedies in respect of the Collateral
pursuant to this Agreement.
ARTICLE IV
COVENANTS
The Grantor covenants and agrees that, until the Termination Date, it will
perform, comply with and be bound by the obligations set forth below.
SECTION 4.1. AS TO INVESTMENT PROPERTY, ETC.
SECTION 4.1.1 CAPITAL SECURITIES OF SUBSIDIARIES. The Grantor will not
allow any of its Subsidiaries that is
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(a) a corporation, business trust, joint stock company or
similar Person, to issue uncertificated securities; and
(b) a partnership or limited liability company, to (i) issue
Capital Securities that are to be dealt in or traded on securities exchanges or
in securities markets, (ii) expressly provide in its Organic Documents that its
Capital Securities are securities governed by Article 8 of the UCC, (iii) place
such Subsidiaries' Capital Securities in a securities account or (iv) cause such
Subsidiaries' Capital Securities to be represented by a certificate.
SECTION 4.1.2 INVESTMENT PROPERTY (OTHER THAN CERTIFICATED
SECURITIES). With respect to any investment property (other than certificated
securities) owned by the Grantor, the Grantor will cause a Control Agreement
relating to such investment property to be executed and delivered by the Grantor
and the applicable financial intermediary in favor of the Administrative Agent.
SECTION 4.1.3 STOCK POWERS, ETC. The Grantor agrees that all
certificated securities delivered by the Grantor pursuant to this Agreement will
be accompanied by undated stock powers duly executed in blank, or other
equivalent instruments of transfer acceptable to the Administrative Agent.
SECTION 4.1.4 CONTINUOUS PLEDGE. The Grantor will (subject to the
terms of the Credit Agreement) deliver to the Administrative Agent and at all
times keep pledged to the Administrative Agent pursuant hereto, on a
first-priority, perfected basis all Collateral, all payment intangibles to the
extent they are evidenced by a document, instrument, promissory note (including
a Pledged Note) or chattel paper and are, when aggregated with all other such
Collateral of each Subsidiary Guarantor, in an aggregate face amount of more
than $50,000, and all interest and principal with respect to the payment
intangibles, and all proceeds and rights from time to time received by or
distributable to the Grantor in respect of any of the foregoing Collateral. The
Grantor agrees that it will, promptly following receipt, deliver to the
Administrative Agent possession of all originals of negotiable documents,
instruments, promissory notes (including Pledged Notes) and chattel paper that
it acquires following the Closing Date.
SECTION 4.1.5 VOTING RIGHTS; DIVIDENDS, ETC. The Grantor agrees:
(a) promptly upon receipt of notice of the occurrence and
continuance of a Specified Event from the Administrative Agent and without any
request therefor by the Administrative Agent, so long as such Specified Event
shall continue, to deliver (properly endorsed where required hereby or requested
by the Administrative Agent) to the Administrative Agent all Dividends and
Distributions with respect to investment property, all interest, principal,
other cash payments on payment intangibles, and all proceeds of the Collateral,
in each case thereafter received by the Grantor, all of which shall be held by
the Administrative Agent as additional Collateral; and
(b) promptly upon receipt of notice of the occurrence and
continuance of a Specified Event from the Administrative Agent and upon request
therefor by the Administrative Agent, so long as such Specified Event shall
continue, with respect to Collateral
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consisting of general partner interests or limited liability company interests,
to cause modifications to the respective Organic Documents to admit the
Administrative Agent as a general partner or member, respectively; and
(c) immediately upon the occurrence and continuance of a
Specified Event and so long as the Administrative Agent has notified the Grantor
of the Administrative Agent's intention to exercise its voting power under this
clause,
(i) that the Administrative Agent may exercise (to the
exclusion of the Grantor) the voting power and all other incidental rights of
ownership with respect to any investment property constituting Collateral and
the Grantor hereby grants the Administrative Agent an irrevocable proxy,
exercisable under such circumstances, to vote such investment property; and
(ii) to promptly deliver to the Administrative Agent such
additional proxies and other documents as may be necessary to allow the
Administrative Agent to exercise such voting power.
All Dividends, Distributions, interest, principal, cash payments, payment
intangibles and proceeds which may at any time and from time to time be held by
the Grantor but which the Grantor is then obligated to deliver to the
Administrative Agent, shall, until delivery to the Administrative Agent, be held
by the Grantor separate and apart from its other property in trust for the
Administrative Agent. The Administrative Agent agrees that unless a Specified
Event shall have occurred and be continuing and the Administrative Agent shall
have given the notice referred to in CLAUSE (b), the Grantor will have the
exclusive voting power with respect to any investment property constituting
Collateral and the Administrative Agent will, upon the written request of the
Grantor, promptly deliver such proxies and other documents, if any, as shall be
reasonably requested by the Grantor which are necessary to allow the Grantor to
exercise that voting power; PROVIDED that no vote shall be cast, or consent,
waiver, or ratification given, or action taken by the Grantor that would impair
any such Collateral or be inconsistent with or violate any provision of any Loan
Document.
SECTION 4.2. CHANGE OF NAME, ETC. The Grantor will not change its name or
place of incorporation or organization or federal taxpayer identification number
except upon 30 days' prior written notice to the Administrative Agent. In
addition, the Grantor shall supplement the information contained in SCHEDULE II
hereto on the Compliance Certificate on each date a Compliance Certificate is
required to be delivered to the Administrative Agent under the Credit Agreement,
including any changes to the information set forth in SECTION 3.2.
SECTION 4.3. AS TO RECEIVABLES; COLLATERAL ACCOUNT.
(a) The Grantor shall have the right to collect all
Receivables so long as no Specified Event shall have occurred and be continuing.
(b) Upon (i) the occurrence and continuance of a Specified
Event and (ii) the delivery of written notice by the Administrative Agent to the
Grantor, all proceeds of Collateral received by the Grantor shall be delivered
in kind to the Administrative Agent for deposit into a deposit account (the
"COLLATERAL ACCOUNT") of the Grantor maintained with the
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Administrative Agent (or such other institution which has executed and delivered
to the Administrative Agent a "lockbox" agreement in form and substance and
satisfactory to the Administrative Agent), and the Grantor shall not commingle
any such proceeds, and shall hold separate and apart from all other property,
all such proceeds in express trust for the benefit of the Administrative Agent
until delivery thereof is made to the Administrative Agent.
(c) Following the delivery of notice pursuant to CLAUSE
(b)(ii), the Administrative Agent shall have the right to apply any amount in
the Collateral Account to the payment of any Obligations which are due and
payable.
(d) With respect to the Collateral Account, it is hereby
confirmed and agreed that (i) deposits in each Collateral Account are subject to
a security interest as contemplated hereby, (ii) each such Collateral Account
shall be under the sole dominion and control of the Administrative Agent and
(iii) the Administrative Agent shall have the sole right of withdrawal over the
amounts deposited in such Collateral Account.
SECTION 4.4. AS TO COLLATERAL.
(a) Subject to CLAUSE (b), the Grantor (i) may in the ordinary
course of its business, at its own expense, sell, lease or furnish under the
contracts of service any of the inventory normally held by the Grantor for such
purpose, and use and consume, in the ordinary course of its business, any raw
materials, work in process or materials normally held by the Grantor for such
purpose, (ii) will, at its own expense, endeavor to collect, as and when due,
all amounts due with respect to any of the Collateral, including the taking of
such action with respect to such collection as the Administrative Agent may
reasonably request following the occurrence of a Specified Event or, in the
absence of such request, as the Grantor may deem advisable, and (iii) may grant,
in the ordinary course of business, to any party obligated on any of the
Collateral, any rebate, refund or allowance to which such party may be lawfully
entitled, and may accept, in connection therewith, the return of goods, the sale
or lease of which shall have given rise to such Collateral.
(b) At any time following the occurrence and during the
continuance of a Specified Event, whether before or after the maturity of any of
the Obligations, the Administrative Agent may (i) revoke any or all of the
rights of the Grantor set forth in CLAUSE (a), (ii) notify any parties obligated
on any of the Collateral to make payment to the Administrative Agent of any
amounts due or to become due thereunder and (iii) enforce collection of any of
the Collateral by suit or otherwise and surrender, release, or exchange all or
any part thereof, or compromise or extend or renew for any period (whether or
not longer than the original period) any indebtedness thereunder or evidenced
thereby.
(c) Upon request of the Administrative Agent following the
occurrence and during the continuance of a Specified Event, the Grantor will, at
its own expense, notify any parties obligated on any of the Collateral to make
payment to the Administrative Agent of any amounts due or to become due
thereunder.
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(d) The Grantor hereby authorizes the Administrative Agent to
endorse, in the name of the Grantor, any item, howsoever received by the
Administrative Agent, representing any payment on or other proceeds of any of
the Collateral.
SECTION 4.5. AS TO INTELLECTUAL PROPERTY COLLATERAL. The Grantor covenants
and agrees to comply with the following provisions as such provisions relate to
any Intellectual Property Collateral of the Grantor:
(a) the Grantor will not (i) do or fail to perform any act
whereby any of the Patent Collateral may lapse or become abandoned or dedicated
to the public or unenforceable, (ii) permit any of its licensees to (A) fail to
continue to use any of the Trademark Collateral in order to maintain all of the
Trademark Collateral in full force free from any claim of abandonment for
non-use, (B) fail to maintain as in the past the quality of products and
services offered under all of the Trademark Collateral, (C) fail to employ all
of the Trademark Collateral registered with any federal or state or foreign
authority with an appropriate notice of such registration, (D) adopt or use any
other Trademark which is confusingly similar or a colorable imitation of any of
the Trademark Collateral, (E) use any of the Trademark Collateral registered
with any federal, state or foreign authority except for the uses for which
registration or application for registration of all of the Trademark Collateral
has been made or (F) do or permit any act or knowingly omit to do any act
whereby any of the Trademark Collateral may lapse or become invalid or
unenforceable, or (iii) do or permit any act or knowingly omit to do any act
whereby any of the Copyright Collateral or any of the Trade Secrets Collateral
may lapse or become invalid or unenforceable or placed in the public domain
except upon expiration of the end of an unrenewable term of a registration
thereof, unless, in the case of any of the foregoing requirements in CLAUSES
(i), (ii) and (iii), the Grantor shall either (x) reasonably and in good faith
determine that any of such Intellectual Property Collateral is of negligible
economic value to the Grantor, or (y) have a valid business purpose to do
otherwise;
(b) the Grantor shall promptly notify the Administrative Agent
if it knows, or has reason to know, that any application or registration
relating to any material item of the Intellectual Property Collateral may become
abandoned or dedicated to the public or placed in the public domain or invalid
or unenforceable, or of any adverse determination or development (including the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, the United States Copyright
Office or any foreign counterpart thereof or any court) regarding the Grantor's
ownership of any of the Intellectual Property Collateral, its right to register
the same or to keep and maintain and enforce the same;
(c) in no event will the Grantor or any of its agents,
employees, designees or licensees file an application for the registration of
any Intellectual Property Collateral with the United States Patent and Trademark
Office, the United States Copyright Office or any similar office or agency in
any other country or any political subdivision thereof, unless it promptly
informs the Administrative Agent, and upon request of the Administrative Agent
(subject to Section 7.1.8 of the Credit Agreement), executes and delivers all
agreements, instruments and documents as the Administrative Agent may reasonably
request to evidence the Administrative Agent's security interest in such
Intellectual Property Collateral;
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(d) the Grantor will take all necessary steps, including in
any proceeding before the United States Patent and Trademark Office, the United
States Copyright Office or (subject to Section 7.1.8 of the Credit Agreement)
any similar office or agency in any other country or any political subdivision
thereof, to maintain and pursue any application (and to obtain the relevant
registration) filed with respect to, and to maintain any registration of, the
Intellectual Property Collateral, including the filing of applications for
renewal, affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings and the payment of fees and taxes
(except to the extent that dedication, abandonment or invalidation is permitted
under the foregoing CLAUSE (a) or (b)); and
(e) the Grantor will promptly (but no less than quarterly)
execute and deliver to the Administrative Agent (as applicable) a Patent
Security Agreement, Trademark Security Agreement and/or Copyright Security
Agreement, as the case may be, in the forms of EXHIBIT A, EXHIBIT B and EXHIBIT
C hereto following its obtaining an interest in any such Intellectual Property,
and shall execute and deliver to the Administrative Agent any other document
required to acknowledge or register or perfect the Administrative Agent's
interest in any part of such item of Intellectual Property Collateral.
SECTION 4.6. BAILEES. With respect to Collateral that is in the possession
of any landlord, refinery, consignee, warehouseman, bailee, agent or processor,
upon the request of the Administrative Agent, the Grantor shall promptly upon
such request use its best efforts to enter into a landlord, refinery, consignee,
warehouseman, bailee, agent or processor arrangement (including but not limited
to a waiver of any Lien held by such Person against such Collateral) in form and
substance reasonably satisfactory to the Administrative Agent. Upon the request
of the Administrative Agent, the Grantor shall provide warehouse receipts or
bailee letters reasonably satisfactory to the Administrative Agent prior to the
commencement of such storage with any such Person. The Grantor shall, upon the
request of the Administrative Agent, notify any such landlord, refinery,
consignee, warehouseman, bailee, agent, processor or other Person of the
security interest created hereby and shall instruct such Person to hold all such
Collateral for the account of the Administrative Agent subject to the
instructions of the Administrative Agent.
SECTION 4.7. FURTHER ASSURANCES, ETC. The Grantor agrees that, from time to
time at its own expense, it will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
that the Administrative Agent may reasonably request, in order to perfect,
preserve and protect any security interest granted or purported to be granted
hereby or to enable the Administrative Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, the Grantor will
(a) from time to time upon the request of the Administrative
Agent, promptly deliver to the Administrative Agent such stock powers,
instruments and similar documents, satisfactory in form and substance to the
Administrative Agent, with respect to such Collateral as the Administrative
Agent may reasonably request and will, from time to time upon the request of the
Administrative Agent after the occurrence and during the continuance of any
Specified Event promptly transfer any securities constituting Collateral into
the name of any nominee designated by the Administrative Agent; if any Account
or Receivable shall be evidenced by an instrument, negotiable document,
promissory note or chattel paper, deliver and
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pledge to the Administrative Agent hereunder such instrument, negotiable
document, promissory note or chattel paper duly endorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to the Administrative Agent;
(b) file (or cause to be filed) such Filing Statements or
continuation statements, or amendments thereto, and such other instruments or
notices (including any assignment of claim form under or pursuant to the federal
assignment of claims statute, 31 U.S.C. Section 3726, any successor or amended
version thereof or any regulation promulgated under or pursuant to any version
thereof), as may be necessary or that the Administrative Agent may reasonably
request in order to perfect and preserve the security interests and other rights
granted or purported to be granted to the Administrative Agent hereby;
(c) deliver to the Administrative Agent and at all times keep
pledged to the Administrative Agent pursuant hereto, on a first-priority,
perfected basis, at the reasonable request of the Administrative Agent, all
investment property constituting Collateral, all Dividends and Distributions
with respect thereto, and all interest and principal with respect to promissory
notes (including Pledged Notes), and all proceeds and rights from time to time
received by or distributable to the Grantor in respect of any of the foregoing
Collateral;
(d) except as permitted by the terms of the Credit Agreement,
not take or omit to take any action the taking or the omission of which would
result in any impairment or alteration of any obligation of the maker of any
payment intangible or other instrument constituting Collateral;
(e) not acquire any Restricted Assets (or acquire a series of
related Restricted Assets) if such acquisition (or series of related
acquisitions) would impair, in any material respect, the Administrative Agent's
ability to sell or otherwise transfer the Grantor's business as a going concern;
(f) furnish to the Administrative Agent, from time to time at
the Administrative Agent's request, statements and schedules further identifying
and describing the Collateral and such other reports in connection with the
Collateral as the Administrative Agent may reasonably request, all in reasonable
detail;
(g) not permit any items of equipment to become fixtures to
real estate other than real estate subject to a Mortgage or real estate owned by
a landlord that has signed a landlord's waiver in form and substance
satisfactory to the Administrative Agent (for its own benefit and on behalf of
the Secured Parties);
(h) not adjust, settle or compromise any account, or release
wholly or partly any party or obligation thereof, or allow any credit or
discount thereon (collectively an "ADJUSTMENT"), unless (i) the Administrative
Agent grants its consent prior to any such Adjustment which consent shall not be
unreasonably withheld or delayed or (ii) such Adjustment is made in the ordinary
course of business of the Grantor and is for an amount not in excess of $50,000
(provided that no such Adjustment may be made without the prior written consent
of the Administrative Agent during the continuance of a Specified Event);
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(i) do all things reasonably requested by the Administrative
Agent in order to enable the Administrative Agent to have control (as such term
is defined in Article 8 and Article 9 of any applicable Uniform Commercial Code
relevant to the creation, perfection or priority of Collateral consisting of
deposit accounts, accounts and letter of credit rights) over any Collateral; and
(j) promptly notify the Administrative Agent if the Grantor
believes it has rights in respect of any amounts in a commercial tort claim and
the Grantor shall take all action reasonably requested by the Administrative
Agent to perfect the Administrative Agent's security interest in such commercial
tort claim.
With respect to the foregoing and the grant of the security interest hereunder,
the Grantor hereby authorizes the Administrative Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral without the signature of the Grantor where permitted
by law. The Grantor agrees that a carbon, photographic or other reproduction of
this Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law.
SECTION 4.8. FILING REQUIREMENTS. None of the Collateral (other than motor
vehicles not having a market value in excess of $75,000 in the aggregate) is
covered by any certificate of title. Upon request of the Administrative Agent,
the Grantor shall promptly deliver to the Administrative Agent any and all
certificates of title, applications for title or similar evidence of ownership
of such Collateral and shall cause the Administrative Agent to be named as
lienholder on any such certificate of title or other evidence of ownership. None
of the Collateral is of a type in which security interests or liens may be
registered, recorded or filed under, or notice thereof given under, any federal
statute or regulation except for Collateral described on the schedules to any
Copyright Security Agreement, Patent Security Agreement or Trademark Security
Agreement. The Grantor shall promptly notify the Administrative Agent in writing
upon acquiring any interest hereafter in any property which constitutes
"Collateral" under this Agreement and which is of a type where a security
interest or lien may be registered, recorded or filed under, or notice thereof
given under, any federal statute or regulation.
ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1. ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT. The Grantor
hereby irrevocably appoints the Administrative Agent its attorney-in-fact, with
full authority in the place and stead of the Grantor and in the name of the
Grantor or otherwise, from time to time in the Administrative Agent's
discretion, following the occurrence and during the continuance of a Specified
Event, to take any action and to execute any instrument which the Administrative
Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, including:
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(a) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with CLAUSE (a) above;
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or desirable for
the collection of any of the Collateral or otherwise to enforce the rights of
the Administrative Agent with respect to any of the Collateral; and
(d) to perform the affirmative obligations of the Grantor
hereunder (including all obligations of the Grantor pursuant to SECTION 4.6).
The Grantor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. ADMINISTRATIVE AGENT MAY PERFORM. If the Grantor fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by the
Grantor pursuant to SECTION 6.4.
SECTION 5.3. ADMINISTRATIVE AGENT HAS NO DUTY. The powers conferred on the
Administrative Agent hereunder are solely to protect its interest (on behalf of
the Secured Parties) in the Collateral and shall not impose any duty on it to
exercise any such powers. Except for reasonable care of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Administrative Agent shall have no duty as to any Collateral or responsibility
for
(a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
investment property, whether or not the Administrative Agent has or is deemed to
have knowledge of such matters, or
(b) taking any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral.
SECTION 5.4. REASONABLE CARE. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; PROVIDED, that the Administrative Agent shall be
deemed to have exercised reasonable care in the custody and preservation of any
of the Collateral, if it takes such action for that purpose as the Grantor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Specified Event, but failure of the Administrative
Agent to comply with any such request at any time shall not in itself be deemed
a failure to exercise reasonable care.
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ARTICLE VI
REMEDIES
SECTION 6.1. CERTAIN REMEDIES. If any Specified Event shall have occurred
and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party on
default under the UCC (whether or not the UCC applies to the affected
Collateral) and also may
(i) require the Grantor to, and the Grantor hereby
agrees that it will, at its expense and upon request of the Administrative Agent
forthwith, assemble all or part of the Collateral as directed by the
Administrative Agent and make it available to the Administrative Agent at a
place to be designated by the Administrative Agent which is reasonably
convenient to both parties, and
(ii) 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 of the Administrative Agent's offices or elsewhere, for cash, on credit
or for future delivery, and upon such other terms as the Administrative Agent
may deem commercially reasonable. The Grantor agrees that, to the extent notice
of sale shall be required by law, at least ten days prior notice to the Grantor
of the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. The Administrative
Agent shall not be obligated to make any sale of Collateral regardless of notice
of sale having been given. The Administrative Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned.
(b) All cash proceeds received by the Administrative Agent in
respect of any sale of, collection from, or other realization upon, all or any
part of the Collateral may, in the discretion of the Administrative Agent, be
held by the Administrative Agent as collateral for, and/or then or at any time
thereafter applied by the Administrative Agent against all or any part of the
Obligations as follows:
(i) FIRST, to the payment of any amounts payable to the
Administrative Agent, in its capacity as Administrative Agent, pursuant to
Section 10.3 of the Credit Agreement and SECTION 6.4;
(ii) SECOND, to the equal and ratable payment of the
Obligations, applied as to each Secured Party: (A) first to fees then due to
such Secured Party, (B) then to interest due to such Secured Party, (C) then to
the Cash Collateralization of all Letter of Credit Outstandings, (D) then to
principal amounts owing to, or to reduce the "credit exposure" of, such Secured
Party with respect to the Loans or the Gold Consignment Agreement, or under such
Rate Protection Agreement, as the case may be, and (E) then to the remaining
outstanding Obligations, including, without duplication of any amounts paid
pursuant to this clause, to the
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amounts owing pursuant to Section 10.4 of the Credit Agreement and Sections 26
and 33 of the Gold Consignment Agreement; and
(iii) THIRD, to the Grantor or to whomsoever may be
lawfully entitled to receive such surplus.
For purposes of this Agreement, the "credit exposure" at any time of any Secured
Party with respect to a Rate Protection Agreement to which such Secured Party is
a party shall be determined at such time in accordance with the customary
methods of calculating credit exposure under similar arrangements by the
counterparty to such arrangements, taking into account potential interest rate
movements and the respective termination provisions and notional principal
amount and term of such Rate Protection Agreement.
(c) The Administrative Agent may
(i) transfer all or any part of the Collateral into the
name of the Administrative Agent or its nominee, with or without disclosing that
such Collateral is subject to the Lien hereunder,
(ii) notify the parties obligated on any of the
Collateral to make payment to the Administrative Agent of any amount due or to
become due thereunder,
(iii) enforce collection of any of the Collateral by
suit or otherwise, and surrender, release or exchange all or any part thereof,
or compromise or extend or renew for any period (whether or not longer than the
original period) any obligations of any nature of any party with respect
thereto,
(iv) endorse any checks, drafts, or other writings in
the Grantor's name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral, and
(vi) execute (in the name, place and stead of the
Grantor) endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the Collateral.
SECTION 6.2. SECURITIES LAWS. If the Administrative Agent shall determine
to exercise its right to sell all or any of the Collateral pursuant to SECTION
6.1, the Grantor agrees that, upon request of the Administrative Agent, the
Grantor will, at its own expense:
(a) execute and deliver, and cause (or, with respect to any
issuer which is not a Subsidiary of the Grantor, use its best efforts to cause)
each issuer of the Capital Securities contemplated to be sold and the directors
and officers thereof to execute and deliver, all such instruments and documents,
and do or cause to be done all such other acts and things, as may be necessary
or, in the opinion of the Administrative Agent, advisable to register such
Capital Securities under the provisions of the Securities Act of 1933, as from
time to time amended (the "SECURITIES ACT"), and 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
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all amendments and supplements thereto and to the related prospectus which, in
the reasonable opinion of the Administrative Agent, are necessary or advisable,
all in conformity with the requirements of the Securities Act and the rules and
regulations of the SEC applicable thereto;
(b) use its best efforts to exempt such Capital Securities
under the state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of such Capital Securities, as requested by
the Administrative Agent;
(c) cause (or, with respect to any issuer which is not a
Subsidiary of the Grantor, use its best efforts to cause) each such issuer to
make available to its security holders, as soon as practicable, an earnings
statement that will satisfy the provisions of Section 11(a) of the Securities
Act; and
(d) do or cause to be done all such other acts and things as
may be necessary to make such sale of such Collateral or any part thereof valid
and binding and in compliance with applicable law.
The Grantor further acknowledges the impossibility of ascertaining the amount of
damages that would be suffered by the Administrative Agent or the Secured
Parties by reason of the failure by the Grantor to perform any of the covenants
contained in this Section and consequently agrees that, if the Grantor shall
fail to perform any of such covenants, it shall pay, as liquidated damages and
not as a penalty, an amount equal to the value (as determined by the
Administrative Agent) of such Collateral on the date the Administrative Agent
shall demand compliance with this Section.
SECTION 6.3. COMPLIANCE WITH RESTRICTIONS. The Grantor agrees that in any
sale of any of the Collateral whenever a Specified Event shall have occurred and
be continuing, the Administrative Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to Persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any Governmental Authority or official, and the
Grantor further agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially reasonable manner,
nor shall the Administrative Agent be liable nor accountable to the Grantor for
any discount allowed by the reason of the fact that such Collateral is sold in
compliance with any such limitation or restriction.
SECTION 6.4. EXPENSES. The Grantor will, upon demand, pay to the
Administrative Agent the amount of any and all reasonable expenses, including
the reasonable fees and disbursements of its counsel and of any experts and
agents, which the Administrative Agent may incur in connection with:
(i) the administration of each Loan Document,
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(ii) the custody, preservation, use or operation of, or
the sale of, collection from, or other realization upon, any of the Collateral,
(iii) the exercise or enforcement of any of the rights
of the Administrative Agent or the Secured Parties hereunder, and
(iv) the failure by the Grantor to perform or observe
any of the provisions hereof.
SECTION 6.5. PROTECTION OF COLLATERAL. The Administrative Agent may from
time to time, at its option, perform any act which the Grantor fails to perform
after being requested in writing so to perform (it being understood that no such
request need be given after the occurrence and during the continuance of a
Specified Event) and the Administrative Agent may from time to time take any
other action which the Administrative Agent reasonably deems necessary for the
maintenance, preservation or protection of any of the Collateral or of its
security interest therein.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. LOAN DOCUMENT. This Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof, including Article X thereof.
SECTION 7.2. BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS; ASSIGNMENT.
This Agreement shall remain in full force and effect until the Termination Date
has occurred, shall be binding upon the Grantor and its successors, transferees
and assigns and shall inure to the benefit of and be enforceable by each Secured
Party and its successors, transferees and assigns; PROVIDED that the Grantor may
not (unless otherwise permitted under the terms of the Credit Agreement) assign
any of its obligations hereunder without the prior written consent of all
Lenders.
SECTION 7.3. AMENDMENTS, ETC. No amendment to or waiver of any provision of
this Agreement, nor consent to any departure by the Grantor from its obligations
under this Agreement, shall in any event be effective unless the same shall be
in writing and signed by the Administrative Agent (on behalf of the Lenders or
the Required Lenders, as the case may be, pursuant to Section 10.1 of the Credit
Agreement) and by the Gold Consignor and the Grantor and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 7.4. NOTICES. All notices and other communications provided for
hereunder shall be in writing or by facsimile and addressed, delivered or
transmitted to the appropriate party at the address or facsimile number of such
party specified in the Credit Agreement, or if to the Gold Consignor to the
address or facsimile number set forth in the Gold Consignment Agreement or at
such other address or facsimile number as may be designated by such Person in a
notice to the other party (and to the Gold Consignor). Any notice or other
communication, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid
23
<Page>
courier service, shall be deemed given when received; any such notice or other
communication, if transmitted by facsimile, shall be deemed given when
transmitted and electronically confirmed.
SECTION 7.5. RELEASE OF LIENS. Upon (a) the Disposition of Collateral in
accordance with the Credit Agreement or (b) the occurrence of the Termination
Date, the security interests granted herein shall automatically terminate with
respect to (i) such Collateral (in the case of CLAUSE (a)) or (ii) all
Collateral (in the case of CLAUSE (b)). Upon any such Disposition or
termination, the Administrative Agent will, at the Grantor's sole expense,
deliver to the Grantor, without any representations, warranties or recourse of
any kind whatsoever, such Collateral (in the case of CLAUSE (a)) or all
Collateral (in the case of CLAUSE (b)) held by the Administrative Agent
hereunder, and execute and deliver to the Grantor such documents as the Grantor
shall reasonably request to evidence such termination.
SECTION 7.6. NO WAIVER; REMEDIES. No failure on the part of any Secured
Party to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 7.7. HEADINGS. The various headings of this Agreement are inserted
for convenience only and shall not affect the meaning or interpretation of this
Agreement or any provisions thereof.
SECTION 7.8. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 7.9. GOVERNING LAW, ENTIRE AGREEMENT, ETC. THIS AGREEMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK. This Agreement and the other Loan
Documents constitute the entire understanding among the parties hereto with
respect to the subject matter hereof and thereof and supersede any prior
agreements, written or oral, with respect thereto.
SECTION 7.10. COUNTERPARTS. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
facsimile shall be effective as delivery of a manually executed counterpart of
this Agreement.
24
<Page>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed and delivered by its Authorized Officer as of the date first
above written.
AMERICAN ACHIEVEMENT CORPORATION
By: /s/ Sherice P. Bench
------------------------------------------
Name: Sherice P. Bench
Title: Chief Financial Officer
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By: /s/ Jerome Noto
------------------------------------------
Name: Jerome Noto
Title: Director
<Page>
SCHEDULE I
to Borrower Pledge and Security Agreement
ITEM A. CAPITAL SECURITIES
<Table>
<Caption>
STOCK CERTIFICATE AUTHORIZED OUTSTANDING NUMBER OF % OF SHARES
ISSUER (CORPORATE) CLASS OF STOCK NUMBER SHARES SHARES SHARES PLEDGED
- ------------------ -------------- ------ ------ ------ ------ -------
Commemorative Brands, Inc. Common 22 75,000 375,985 375,985 100%
460,985
Commemorative Brands, Inc. Series B 750,000 (Series B 460,985 100%
Preferred B-28 (Preferred) Preferred)
Taylor Senior Holding Corp. Preferred 10 1,000 1,000 1,000 100%
Taylor Senior Holding Corp. Common 10 1,000 1,000 1,000 100%
Educational Communications, Inc. Common 46 1,000 1,000 1,000 100%
</Table>
ITEM B. PLEDGED NOTES
<Table>
<Caption>
ORIGINAL PRINCIPAL
NAME OF MAKER DESCRIPTION AMOUNT
------------- ----------- ------
Taylor Publishing Company Intercompany Revolving Note (Nova Scotia) $40,000,000
Commemorative Brands, Inc. Intercompany Revolving Note (Nova Scotia) $40,000,000
Educational Communications, Inc. Intercompany Revolving Note (Nova Scotia) $40,000,000
</Table>
<Page>
SCHEDULE II
to Borrower Pledge and Security Agreement
Item A. Trade Names
[None]
Item B. Location of Inventory, Equipment
7211 Circle S Road, Austin, TX 78745
Item C. Federal Taxpayer Identification Number
13-4126506
Organizational Number
3251589
Item D. Government Contracts
[None]
Item E. Deposit Accounts
[To be provided by company]
Item F. Commercial Tort Claims
[To be provided by company]
<Page>
SCHEDULE III
to Borrower Pledge and Security Agreement
<Table>
<Caption>
Item A. PATENTS
-------
ISSUED PATENTS
--------------
COUNTRY PATENT NO. ISSUE DATE INVENTOR(S) TITLE
------- ---------- ---------- ----------- -----
<Caption>
PENDING PATENT APPLICATIONS
---------------------------
COUNTRY SERIAL NO. FILING DATE INVENTOR(S) TITLE
------- ---------- ----------- ----------- -----
<Caption>
PATENT APPLICATIONS IN PREPARATION
COUNTRY PATENT NO. ISSUE DATE INVENTOR(S) TITLE
------- ---------- ---------- ----------- -----
<Caption>
Item B. PATENT LICENSES
---------------
COUNTRY OR EFFECTIVE EXPIRATION SUBJECT
TERRITORY LICENSOR LICENSEE DATE DATE MATTER
---------- -------- -------- --------- ---------- -------
</Table>
<Page>
SCHEDULE IV
to Borrower Pledge and Security Agreement
<Table>
<Caption>
Item A. TRADEMARKS
REGISTERED TRADEMARKS
---------------------
COUNTRY TRADEMARK REGISTRATION NO. REGISTRATION DATE
------- ---------- ---------------- -----------------
<Caption>
PENDING TRADEMARK APPLICATIONS
------------------------------
COUNTRY TRADEMARK SERIAL NO. FILING DATE
------- ---------- ---------------- -----------------
<Caption>
TRADEMARK APPLICATIONS IN PREPARATION
-------------------------------------
EXPECTED PRODUCTS/
COUNTRY TRADEMARK DOCKET NO. FILING DATE SERVICES
-------- ---------- ---------- ----------- --------
<Caption>
Item B. TRADEMARK LICENSES
------------------
COUNTRY EFFECTIVE EXPIRATION
TERRITORY TRADEMARK LICENSOR LICENSEE DATE DATE
--------- --------- -------- -------- --------- ----------
</Table>
<Page>
SCHEDULE V
to Borrower Pledge and Security Agreement
<Table>
<Caption>
Item A. COPYRIGHTS/MASK WORKS
---------------------
REGISTERED COPYRIGHTS/MASK WORKS
--------------------------------
COUNTRY REGISTRATION NO. REGISTRATION DATE AUTHOR(S) TITLE
------- ---------- ---------------- -------- -----
<Caption>
COPYRIGHT/MASK WORK PENDING REGISTRATION APPLICATIONS
-----------------------------------------------------
COUNTRY SERIAL NO. FILING DATE AUTHOR(S) TITLE
------- ---------- ----------- --------- -----
<Caption>
COPYRIGHT/MASK WORK REGISTRATION APPLICATIONS IN PREPARATION
------------------------------------------------------------
EXPECTED
COUNTRY DOCKET NO. FILING DATE AUTHOR(S) TITLE
------- ---------- ----------- --------- -----
<Caption>
Item B. COPYRIGHT/MASK WORK LICENSES
----------------------------
COUNTRY OR
EFFECTIVE EXPIRATION SUBJECT
TERRITORY LICENSOR LICENSEE DATE DATE MATTER
---------- ---------- -------- ---- ---- ------
</Table>
<Page>
SCHEDULE VI
to Borrower Pledge and Security Agreement
TRADE SECRET OR KNOW-HOW LICENSES
<Page>
SCHEDULE VII
to Borrower Pledge and Security Agreement
FILING STATEMENTS
<Page>
EXHIBIT A
to Borrower Pledge and Security Agreement
PATENT SECURITY AGREEMENT
This PATENT SECURITY AGREEMENT, dated as of ________ __, 200_ (this
"SECURITY AGREEMENT"), is made by AMERICAN ACHIEVEMENT CORPORATION (formerly
known as Commemorative Brands Holding Corp.) (the "GRANTOR") in favor of THE
BANK OF NOVA SCOTIA, as administrative agent (together with its successor(s)
thereto in such capacity, the "ADMINISTRATIVE Agent") for each of the Secured
Parties.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of February 20, 2002 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among the Grantor (as the Borrower), the Lenders,
General Electric Capital Corporation, as the Syndication Agent for the Lenders,
Bankers Trust Company, as the Documentation Agent for the Lenders and the
Administrative Agent, the Lenders and the Issuer have extended Commitments to
make Credit Extensions to the Grantor;
WHEREAS, in connection with the Credit Agreement, the Grantor has executed
and delivered a Borrower Pledge and Security Agreement, dated as of February 20,
2002 (as amended, supplemented, amended and restated or otherwise modified from
time to time, the "AGREEMENT");
WHEREAS, pursuant to the Credit Agreement and the Agreement, the Grantor is
required to execute and deliver this Security Agreement and to grant to the
Administrative Agent a continuing security interest in all of the Patent
Collateral (as defined below) to secure all Obligations; and
WHEREAS, the Grantor has duly authorized the execution, delivery and
performance of this Security Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Grantor agrees, for the
benefit of each Secured Party, as follows:
DEFINITIONS. Unless otherwise defined herein or the context otherwise
requires, terms used in this Security Agreement, including its preamble and
recitals, have the meanings provided in the Agreement.
GRANT OF SECURITY INTEREST. The Grantor hereby assigns, pledges,
hypothecates, charges, mortgages, delivers, and transfers to the Administrative
Agent, for its benefit and the ratable benefit of each other Secured Party, and
hereby grants to the Administrative Agent, for its benefit and the ratable
benefit of each other Secured Party, a continuing security interest in all of
<Page>
the following property, whether now or hereafter existing or acquired by the
Grantor (the "PATENT COLLATERAL"):
all of its letters patent and applications for letters patent
throughout the world, including all patent applications in preparation for
filing and each patent and patent application referred to in ITEM A of
SCHEDULE I attached hereto;
all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the items described in
CLAUSE (a);
all of its patent licenses, and other agreements providing the
Grantor with the right to use any items of the type referred to in CLAUSES
(a) and (b) above, including each patent license referred to in ITEM B of
SCHEDULE I attached hereto; and
all proceeds of, and rights associated with, the foregoing
(including license royalties and proceeds of infringement suits), the right
to sue third parties for past, present or future infringements of any
patent or patent application, and for breach or enforcement of any patent
license.
SECURITY AGREEMENT. This Security Agreement has been executed and delivered
by the Grantor for the purpose of registering the security interest of the
Administrative Agent in the Patent Collateral with the United States Patent and
Trademark Office and corresponding offices in other countries of the world. The
security interest granted hereby has been granted as a supplement to, and not in
limitation of, the security interest granted to the Administrative Agent for its
benefit and the ratable benefit of each other Secured Party under the Agreement.
The Agreement (and all rights and remedies of the Administrative Agent and each
Secured Party thereunder) shall remain in full force and effect in accordance
with its terms.
RELEASE OF LIENS. Upon (i) the Disposition of Patent Collateral in
accordance with the Credit Agreement or (ii) the occurrence of the Termination
Date, the security interests granted herein shall automatically terminate with
respect to (A) such Patent Collateral (in the case of CLAUSE (i)) or (B) all
Patent Collateral (in the case of CLAUSE (ii)). Upon any such Disposition or
termination, the Administrative Agent will, at the Grantor's sole expense,
deliver to the Grantor, without any representations, warranties or recourse of
any kind whatsoever, all Patent Collateral held by the Administrative Agent
hereunder, and execute and deliver to the Grantor such documents as the Grantor
shall reasonably request to evidence such termination.
ACKNOWLEDGMENT. The Grantor does hereby further acknowledge and affirm that
the rights and remedies of the Administrative Agent with respect to the security
interest in the Patent Collateral granted hereby are more fully set forth in the
Agreement, the terms and provisions of which (including the remedies provided
for therein) are incorporated by reference herein as if fully set forth herein.
LOAN DOCUMENT. This Security Agreement is a Loan Document executed pursuant
to the Credit Agreement and shall (unless otherwise expressly indicated herein)
be construed, administered and applied in accordance with the terms and
provisions thereof, including Article X thereof.
EXHIBIT A
-2-
<Page>
COUNTERPARTS. This Security Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Security
Agreement to be duly executed and delivered by its Authorized Officer as of the
date first above written.
AMERICAN ACHIEVEMENT CORPORATION
By: /s/ Sherice P. Bench
-----------------------------------------
Name: Sherice P. Bench
Title:
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By: /s/ Jerome Noto
-----------------------------------------
Name: Jerome Noto
Title: Director
EXHIBIT A
-3-
<Page>
SCHEDULE I
to Patent Security Agreement
<Table>
<Caption>
Item A. PATENTS
-------
ISSUED PATENTS
--------------
COUNTRY PATENT NO. ISSUE DATE INVENTOR(S) TITLE
------- ---------- ---------- ----------- -----
<Caption>
PENDING PATENT APPLICATIONS
---------------------------
COUNTRY SERIAL NO. FILING DATE INVENTOR(S) TITLE
------- ---------- ----------- ----------- -----
<Caption>
PATENT APPLICATIONS IN PREPARATION
----------------------------------
COUNTRY PATENT NO. ISSUE DATE INVENTOR(S) TITLE
------- ---------- ---------- ----------- -----
<Caption>
Item B. PATENT LICENSES
---------------
COUNTRY OR EFFECTIVE EXPIRATION SUBJECT
TERRITORY LICENSOR LICENSEE DATE DATE MATTER
--------- -------- -------- ---- ---- ------
</Table>
EXHIBIT A
-4-
<Page>
EXHIBIT B
to Borrower Pledge and Security Agreement
TRADEMARK SECURITY AGREEMENT
This TRADEMARK SECURITY AGREEMENT, dated as of _________ __, 200_ (this
"SECURITY AGREEMENT"), is made by AMERICAN ACHIEVEMENT CORPORATION (formerly
known as Commemorative Brands Holding Corp.) (the "GRANTOR") in favor of THE
BANK OF NOVA SCOTIA, as administrative agent (together with its successor(s)
thereto in such capacity, the "ADMINISTRATIVE AGENT") for each of the Secured
Parties.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of February 20, 2002 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among the Grantor (as the Borrower), the Lenders,
General Electric Capital Corporation, as the Syndication Agent for the Lenders,
Bankers Trust Company, as the Documentation Agent for the Lenders and the
Administrative Agent, the Lenders and the Issuer have extended Co0mmitments to
make Credit Extensions to the Grantor;
WHEREAS, in connection with the Credit Agreement, the Grantor has executed
and delivered a Borrower Pledge and Security Agreement, dated as of February 20,
2002 (as amended, supplemented, amended and restated or otherwise modified from
time to time, the "AGREEMENT");
WHEREAS, pursuant to the Credit Agreement and the Agreement, the Grantor is
required to execute and deliver this Security Agreement and to grant to the
Administrative Agent a continuing security interest in all of the Trademark
Collateral (as defined below) to secure all Obligations; and
WHEREAS, the Grantor has duly authorized the execution, delivery and
performance of this Security Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Grantor agrees, for the
benefit of each Secured Party, as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, terms used in this Security Agreement, including its
preamble and recitals, have the meanings provided in the Agreement.
SECTION 2. GRANT OF SECURITY INTEREST. The Grantor hereby assigns, pledges,
hypothecates, charges, mortgages, delivers, and transfers to the Administrative
Agent, for its benefit and the ratable benefit of each other Secured Party, and
hereby grants to the Administrative Agent, for its benefit and the ratable
benefit of each other Secured Party, a
<Page>
continuing security interest in all of the following property, whether now or
hereafter existing or acquired by the Grantor (the "TRADEMARK COLLATERAL"):
(i) all of its trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, certification marks, collective marks, logos and other
source or business identifiers, and all goodwill of the business associated
therewith, now existing or hereafter adopted or acquired including those
referred to in ITEM A of SCHEDULE I hereto, whether currently in use or
not, all registrations and recordings thereof and all applications in
connection therewith, whether pending or in preparation for filing,
including registrations, recordings and applications in the United States
Patent and Trademark Office or in any office or agency of the United States
of America or any State thereof or any other country or political
subdivision thereof or otherwise, and all common-law rights relating to the
foregoing, and (ii) the right to obtain all reissues, extensions or
renewals of the foregoing (collectively referred to as the "TRADEMARK");
all of the goodwill of the business connected with the use
of, and symbolized by the items described in, CLAUSE (a), and to the extent
applicable CLAUSE (b);
the right to sue third parties for past, present and future
infringements of any Trademark Collateral described in CLAUSE (a) and, to
the extent applicable, CLAUSE (b); and
all proceeds of, and rights associated with, the foregoing,
including any claim by the Grantor against third parties for past, present
or future infringement or dilution of any Trademark, Trademark registration
or Trademark license, or for any injury to the goodwill associated with the
use of any such Trademark or for breach or enforcement of any Trademark
license and all rights corresponding thereto throughout the world.
SECTION 3. SECURITY AGREEMENT. This Security Agreement has been executed
and delivered by the Grantor for the purpose of registering the security
interest of the Administrative Agent in the Trademark Collateral with the United
States Patent and Trademark Office and corresponding offices in other countries
of the world. The security interest granted hereby has been granted as a
supplement to, and not in limitation of, the security interest granted to the
Administrative Agent for its benefit and the ratable benefit of each other
Secured Party under the Agreement. The Agreement (and all rights and remedies of
the Administrative Agent and each Secured Party thereunder) shall remain in full
force and effect in accordance with its terms.
SECTION 4. RELEASE OF LIENS. Upon (i) the Disposition of Trademark
Collateral in accordance with the Credit Agreement or (ii) the occurrence of the
Termination Date, the security interests granted herein shall automatically
terminate with respect to (A) such Trademark Collateral (in the case of CLAUSE
(i)) or (B) all Trademark Collateral (in the case of CLAUSE (ii)). Upon any such
Disposition or termination, the Administrative Agent will, at the Grantor's sole
expense, deliver to the Grantor, without any representations, warranties or
recourse of any kind whatsoever, all Trademark Collateral held by the
Administrative Agent
EXHIBIT B
-2-
<Page>
hereunder, and execute and deliver to the Grantor such documents as the Grantor
shall reasonably request to evidence such termination.
SECTION 5. ACKNOWLEDGMENT. The Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Administrative Agent with respect to
the security interest in the Trademark Collateral granted hereby are more fully
set forth in the Agreement, the terms and provisions of which (including the
remedies provided for therein) are incorporated by reference herein as if fully
set forth herein.
SECTION 6. LOAN DOCUMENT. This Security Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof, including Article X thereof.
SECTION 7. COUNTERPARTS. This Security Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Security
Agreement to be duly executed and delivered by its Authorized Officer as of the
date first above written.
AMERICAN ACHIEVEMENT CORPORATION
By:
------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
------------------------------------------
Name:
Title:
EXHIBIT B
-3-
<Page>
SCHEDULE I
to Trademark Security Agreement
<Table>
<Caption>
Item A. TRADEMARKS
----------
REGISTERED TRADEMARKS
---------------------
COUNTRY TRADEMARK REGISTRATION NO. REGISTRATION DATE
------- --------- ---------------- -----------------
<Caption>
PENDING TRADEMARK APPLICATIONS
------------------------------
COUNTRY TRADEMARK SERIAL NO. FILING DATE
------- --------- ---------- -----------
<Caption>
TRADEMARK APPLICATIONS IN PREPARATION
-------------------------------------
EXPECTED PRODUCTS/
COUNTRY TRADEMARK DOCKET NO. FILING DATE SERVICES
------- --------- ---------- ----------- --------
<Caption>
Item B. TRADEMARK LICENSES
------------------
COUNTRY EFFECTIVE EXPIRATION
TERRITORY TRADEMARK LICENSOR LICENSEE DATE DATE
--------- --------- -------- -------- ---- ----
</Table>
<Page>
EXHIBIT C
to Borrower Pledge and Security Agreement
COPYRIGHT SECURITY AGREEMENT
This COPYRIGHT SECURITY AGREEMENT, dated as of ________ __, 200__ (this
"SECURITY AGREEMENT"), is made by AMERICAN ACHIEVEMENT CORPORATION (formerly
known as Commemorative Brands Holding Corp.) (the "GRANTOR") in favor of THE
BANK OF NOVA SCOTIA, as administrative agent (together with its successor(s)
thereto in such capacity, the "ADMINISTRATIVE AGENT") for each of the Secured
Parties.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of February 20, 2002 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among the Grantor (as the Borrower), the Lenders,
General Electric Capital Corporation, as the Syndication Agent for the Lenders,
Bankers Trust Company, as the Documentation Agent for the Lenders and the
Administrative Agent, the Lenders and the Issuer have extended Commitments to
make Credit Extensions to the Grantor;
WHEREAS, in connection with the Credit Agreement, the Grantor has executed
and delivered a Borrower Pledge and Security Agreement, dated as of February 20,
2002 (as amended, supplemented, amended and restated or otherwise modified from
time to time, the "AGREEMENT");
WHEREAS, pursuant to the Credit Agreement and the Agreement, the Grantor is
required to execute and deliver this Security Agreement and to grant to the
Administrative Agent a continuing security interest in all of the Copyright
Collateral (as defined below) to secure all Obligations; and
WHEREAS, the Grantor has duly authorized the execution, delivery and
performance of this Security Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Grantor agrees, for the
benefit of each Secured Party, as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, terms used in this Security Agreement, including its
preamble and recitals, have the meanings provided in the Agreement.
GRANT OF SECURITY INTEREST. The Grantor hereby assigns, pledges,
hypothecates, charges, mortgages, delivers, and transfers to the Administrative
Agent, for its benefit and the ratable benefit of each other Secured Party, and
hereby grants to the Administrative Agent, for its benefit and the ratable
benefit of each other Secured Party, a continuing security interest in all of
<Page>
the following Copyright Collateral (as defined below), whether now or hereafter
existing or acquired by the Grantor.
"COPYRIGHT COLLATERAL" means all copyrights of the Grantor, whether
statutory or common law, registered or unregistered and whether published or
unpublished, now or hereafter in force throughout the world including all of the
Grantor's right, title and interest in and to all copyrights registered in the
United States Copyright Office or anywhere else in the world and also including
the copyrights referred to in ITEM A of SCHEDULE I attached hereto, and
registrations and recordings thereof and all applications for registration
thereof, whether pending or in preparation, all copyright licenses, including
each copyright license referred to in ITEM B of SCHEDULE I attached hereto, the
right to sue for past, present and future infringements of any of the foregoing,
all rights corresponding thereto, all extensions and renewals of any thereof and
all proceeds of the foregoing, including licenses, royalties, income, payments,
claims, damages and proceeds of suit.
SECURITY AGREEMENT. This Security Agreement has been executed and
delivered by the Grantor for the purpose of registering the security interest of
the Administrative Agent in the Copyright Collateral with the United States
Copyright Office and corresponding offices in other countries of the world. The
security interest granted hereby has been granted as a supplement to, and not in
limitation of, the security interest granted to the Administrative Agent for its
benefit and the ratable benefit of each other Secured Party under the Agreement.
The Agreement (and all rights and remedies of the Administrative Agent and each
Secured Party thereunder) shall remain in full force and effect in accordance
with its terms.
RELEASE OF LIENS. Upon (i) the Disposition of Copyright
Collateral in accordance with the Credit Agreement or (ii) the occurrence of the
Termination Date, the security interests granted herein shall automatically
terminate with respect to (A) such Copyright Collateral (in the case of CLAUSE
(i)) or (B) all Copyright Collateral (in the case of CLAUSE (ii)). Upon any such
Disposition or termination, the Administrative Agent will, at the Grantor's sole
expense, deliver to the Grantor, without any representations, warranties or
recourse of any kind whatsoever, all Copyright Collateral held by the
Administrative Agent hereunder, and execute and deliver to the Grantor such
documents as the Grantor shall reasonably request to evidence such termination.
ACKNOWLEDGMENT. The Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Administrative Agent with respect to
the security interest in the Copyright Collateral granted hereby are more fully
set forth in the Agreement, the terms and provisions of which (including the
remedies provided for therein) are incorporated by reference herein as if fully
set forth herein.
LOAN DOCUMENT. This Security Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof, including Article X thereof.
COUNTERPARTS. This Security Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
EXHIBIT C
2
<Page>
* * * * *
EXHIBIT C
3
<Page>
IN WITNESS WHEREOF, each of the parties hereto has caused this Security
Agreement to be duly executed and delivered by its Authorized Officer as of the
date first above written.
AMERICAN ACHIEVEMENT CORPORATION
By:
------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
------------------------------------------
Name:
Title:
EXHIBIT C
4
<Page>
SCHEDULE I
to Copyright Security Agreement
<Table>
<Caption>
Item A. COPYRIGHTS/MASK WORKS
---------------------
REGISTERED COPYRIGHTS/MASK WORKS
--------------------------------
COUNTRY REGISTRATION NO. REGISTRATION DATE AUTHOR(S) TITLE
------- ---------------- ----------------- --------- -----
<Caption>
COPYRIGHT/MASK WORK PENDING REGISTRATION APPLICATIONS
-----------------------------------------------------
COUNTRY SERIAL NO. FILING DATE AUTHOR(S) TITLE
------- ---------- ----------- --------- -----
<Caption>
COPYRIGHT/MASK WORK REGISTRATION APPLICATIONS IN PREPARATION
------------------------------------------------------------
EXPECTED
COUNTRY DOCKET NO. FILING DATE AUTHOR(S) TITLE
------- ---------- ----------- --------- -----
<Caption>
Item B. COPYRIGHT/MASK WORK LICENSES
----------------------------
COUNTRY OR EFFECTIVE EXPIRATION
TERRITORY LICENSOR LICENSEE DATE DATE
--------- -------- -------- ---- ----
</Table>