EXHIBIT 10.3
FORM OF SECURITY AGREEMENT
among
INFORMATION HOLDINGS, INC.,
WARBURG, PINCUS INFORMATION VENTURES, INC.,
INFORMATION VENTURES L.L.C.,
CERTAIN OF ITS SUBSIDIARIES
and
BANKERS TRUST COMPANY,
as Collateral Agent
Dated as of September 24, 1999
TABLE OF CONTENTS
PAGE
ARTICLE I
SECURITY INTERESTS............................................................2
1.1. Grant of Security Interests....................................2
1.2. Power of Attorney..............................................2
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS.............................3
2.1. Necessary Filings..............................................3
2.2. No Liens.......................................................3
2.3. Other Financing Statements.....................................3
2.4. Chief Executive Office; Records................................3
2.5. Location of Inventory and Equipment............................4
2.6. Recourse.......................................................4
2.7. Trade Names; Change of Name....................................4
ARTICLE III
SPECIAL PROVISIONS CONCERNING RECEIVABLES;
CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER...................................4
3.1. Additional Representations and Warranties......................5
3.2. Maintenance of Records.........................................5
3.3. Direction to Account Debtors; Contracting Parties; etc.........5
3.4. Modification of Terms; etc.....................................5
3.5. Collection.....................................................6
3.6. Instruments....................................................6
3.7. Assignors Remain Liable Under Receivables......................6
3.8. Assignors Remain Liable Under Contracts........................7
3.9. Further Actions................................................7
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS......................................7
4.1. Additional Representations and Warranties.......................7
4.2. Licenses and Assignments........................................8
4.3. Infringements..................................................8
4.4. Preservation of Marks..........................................8
(i)
PAGE
4.5. Maintenance of Registration...................................8
4.6. Future Registered Marks.......................................8
4.7. Remedies......................................................9
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS........................................9
5.1. Additional Representations and Warranties.....................9
5.2. Licenses and Assignments......................................10
5.3. Infringements.................................................10
5.4. Maintenance of Patents or Copyright...........................10
5.5. Prosecution of Patent Applications............................10
5.6. Other Patents and Copyrights..................................10
5.7. Remedies......................................................10
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL.........................................11
6.1. Protection of Collateral Agent's Security.....................11
6.2. Warehouse Receipts Non-negotiable.............................11
6.3. Financing Statements..........................................11
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT.................................11
7.1. Remedies; Obtaining the Collateral Upon Default...............12
7.2. Remedies; Disposition of the Collateral.......................13
7.3. Waiver of Claims..............................................14
7.4. Application of Proceeds.......................................14
7.5. Remedies Cumulative...........................................16
7.6. Discontinuance of Proceedings.................................17
ARTICLE VIII
INDEMNITY....................................................................17
8.1. Indemnity.....................................................17
8.2. Indemnity Obligations Secured by Collateral; Survival.........18
ARTICLE IX
DEFINITIONS..................................................................18
ARTICLE X
(ii)
PAGE
MISCELLANEOUS................................................................23
10.1. Notices......................................................23
10.2. Waiver; Amendment............................................24
10.3. Obligations Absolute.........................................24
10.4. Successors and Assigns.......................................24
10.5. Headings Descriptive.........................................25
10.6. Governing Law................................................25
10.7. Assignor's Duties............................................25
10.8. Termination; Release.........................................25
10.9. Counterparts.................................................26
10.10. Severability................................................26
10.11. The Collateral Agent........................................26
10.12. Benefit of Agreement........................................26
10.13. Additional Assignors.......................................26
ANNEX A Schedule of Chief Executive Offices/Record Locations
ANNEX B Schedule of Inventory and Equipment Locations
ANNEX C Schedule of Trade and Fictitious Names
ANNEX D Schedule of Marks
ANNEX E Schedule of Patents
ANNEX F Schedule of Copyrights
ANNEX G Form of Grant of Security Interest in
Certain United States Trademarks and Patents
ANNEX H Form of Grant of Security Interest in
United States Copyrights
(iii)
FORM OF SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of September 24, 1999, made by
each of the undersigned assignors (each an "Assignor" and, together with any
other entity that becomes an assignor hereunder pursuant to Section 10.13
hereof, the "Assignors") in favor of Bankers Trust Company, as Collateral Agent
(the "Collateral Agent"), for the benefit of the Secured Creditors (as defined
below). Except as otherwise defined herein, capitalized terms used herein and
defined in the Credit Agreement (as defined below) shall be used herein as so
defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Information Holdings, Inc. ("Holdings"), Warburg,
Pincus Information Ventures, Inc. ("WPIV" and together with Holdings, the
"Parent Guarantors"), Information Ventures L.L.C. (the "Borrower"), the lenders
from time to time party thereto (the "Lenders"), Bank of America, N.A., as
Documentation Agent, and Bankers Trust Company, as Administrative Agent
(together with any successor agent, the "Administrative Agent"), have entered
into a Credit Agreement, dated as of September 24, 1999, providing for the
making of Loans to, and the issuance of Letters of Credit for the account of,
the Borrower as contemplated therein (as amended, modified or supplemented from
time to time, the "Credit Agreement") (the Lenders, the Documentation Agent, the
Administrative Agent and the Collateral Agent are herein called the "Lender
Creditors");
WHEREAS, the Borrower may at any time and from time to time
enter into one or more Interest Rate Protection Agreements or Other Hedging
Agreements with one or more Lenders or any affiliate thereof (each such Lender
or affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the "Other Creditors,"
and together with the Lender Creditors, are herein called the "Secured
Creditors");
WHEREAS, pursuant to the Parent Guaranty, the Parent
Guarantors have guaranteed to the Secured Creditors the payment when due of all
of the Guaranteed Obligations as described therein;
WHEREAS, pursuant to, and after the execution and delivery of,
the Subsidiaries Guaranty, each Subsidiary Guarantor has jointly and severally
guarantied to the Secured Creditors the payment when due of all Guaranteed
Obligations as described therein;
WHEREAS, it is a condition precedent to the making of Loans
to, and the issuance of Letters of Credit for the account of, the Borrower under
the Credit Agreement that each Assignor shall have executed and delivered to the
Collateral Agent this Agreement; and
WHEREAS, each Assignor will obtain benefits from the
incurrence of Loans to, and the issuance of Letters of Credit for the account
of, the Borrower under the Credit Agreement and the entering into by the
Borrower of Interest Rate Protection Agreements or Other Hedging
Agreements and, accordingly, each Assignor desires to enter into this
Agreement in order to satisfy the condition described in the preceding
paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to
each Assignor, the receipt and sufficiency of which are hereby acknowledged,
each Assignor hereby makes the following representations and warranties to the
Collateral Agent for the benefit of the Secured Creditors and hereby covenants
and agrees with the Collateral Agent for the benefit of the Secured Creditors as
follows:
ARTICLE I
SECURITY INTERESTS
1.1. GRANT OF SECURITY INTERESTS. (a) As security for the
prompt and complete payment and performance when due of all of its
Obligations, each Assignor does hereby assign and transfer unto the
Collateral Agent, and does hereby pledge and grant to the Collateral Agent
for the benefit of the Secured Creditors, a continuing security interest in,
all of the right, title and interest of such Assignor in, to and under all of
the following, whether now existing or hereafter from time to time acquired:
(i) each and every Receivable, (ii) all Contracts, together with all Contract
Rights arising thereunder, (iii) all Inventory, (iv) all Equipment, (v) all
Marks, together with the registrations and right to all renewals thereof, and
the goodwill of the business of such Assignor symbolized by the Marks, (vi)
all Patents and Copyrights, (vii) all computer programs of such Assignor and
all intellectual property rights therein and all other proprietary
information of such Assignor, including, but not limited to, Trade Secrets
Rights, (viii) all other Goods, General Intangibles, Permits, Chattel Paper,
Documents, Instruments, Investment Property (except to the extent pledged
under the Pledge Agreement) and other assets (including cash), (ix) the Cash
Collateral Account and all monies, securities, instruments and other
investments deposited or required to be deposited in such Cash Collateral
Account, (x) all other bank, demand, time savings, passbook, certificates of
deposit and similar accounts maintained by such Assignor and all monies,
securities, instruments and other investments deposited or required to be
deposited in any of the foregoing accounts, and (xi) all Proceeds and
products of any and all of the foregoing (all of the above, collectively, the
"Collateral").
(b) The security interest of the Collateral Agent under
this Agreement extends to all Collateral of the kind which is the subject of
this Agreement which any Assignor may acquire at any time during the term of
this Agreement.
1.2. POWER OF ATTORNEY. Each Assignor hereby constitutes and
appoints the Collateral Agent its true and lawful attorney, irrevocably, with
full power after the occurrence of and during the continuance of an Event of
Default (in the name of such Assignor or otherwise) to act, require, demand,
receive, compound and give acquittance for any and all moneys and claims for
moneys due or to become due to such Assignor under or arising out of the
Collateral, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute any proceedings
which the Collateral Agent may deem to be necessary or advisable to protect the
interests of the Secured Creditors, which appointment as attorney is coupled
with an interest.
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ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and delivery
of this Agreement, as follows:
2.1. NECESSARY FILINGS. All filings, registrations and
recordings necessary or appropriate to create, preserve and perfect the
security interest granted by such Assignor to the Collateral Agent hereby in
respect of the Collateral have been executed by the appropriate Assignors and
delivered to the Collateral Agent for filing in the appropriate filing office
or filing offices in order to create a perfected security interest therein
prior to the rights of all other Persons therein and subject to no other
Liens (in each case other than Permitted Liens) and is entitled to all the
rights, priorities and benefits afforded by the Uniform Commercial Code or
other relevant law as enacted in any relevant jurisdiction to perfected
security interests, in each case to the extent that the Collateral consists
of the type of property in which a security interest may be perfected by
filing a financing statement under the Uniform Commercial Code as enacted in
any relevant jurisdiction or in the United States Patent and Trademark Office
or in the United States Copyright Office.
2.2. NO LIENS. Such Assignor is, and as to Collateral
acquired by it from time to time after the date hereof such Assignor will be,
the owner of all Collateral free from any Lien, security interest,
encumbrance or other right, title or interest of any Person (other than
Permitted Liens), and such Assignor shall defend the Collateral against all
claims and demands of all Persons at any time claiming the same or any
interest therein adverse to the Collateral Agent.
2.3. OTHER FINANCING STATEMENTS. As of the date hereof,
there is no financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) covering or purporting to
cover any interest of any kind in the Collateral (other than financing
statements filed in respect of Permitted Liens), and so long as the
Termination Date has not occurred, such Assignor will not execute or
authorize to be filed in any public office any financing statement (or
similar statement or instrument of registration under the law of any
jurisdiction) or statements relating to the Collateral, except financing
statements filed or to be filed in respect of and covering the security
interests granted hereby by such Assignor or in connection with Permitted
Liens.
2.4. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive
office of such Assignor is located at the address indicated on Annex A hereto
for such Assignor. Such Assignor will not move its chief executive office
except to such new location as such Assignor may establish in accordance with
the last sentence of this Section 2.4. The originals of all documents
evidencing all Receivables and Contract Rights of such Assignor and the only
original books of account and records of such Assignor relating thereto are,
and will continue to be, kept at such chief executive office, at one or more
of the other locations set forth on Annex A hereto or at such new locations
as such Assignor may establish in accordance with the last sentence of this
Section 2.4. All Receivables and Contract Rights of such Assignor are, and
will continue to be, maintained at, and controlled and directed (including,
without limitation, for
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general accounting purposes) from, the office locations described above or
such new location established in accordance with the last sentence of this
Section 2.4. No Assignor shall establish new locations for such offices until
(i) it shall have given to the Collateral Agent not less than 15 days' prior
written notice of its intention to do so, clearly describing such new
location and providing such other information in connection therewith as the
Collateral Agent may reasonably request, or (ii) with respect to such new
location, it shall have taken all action reasonably satisfactory to the
Collateral Agent to maintain the security interest of the Collateral Agent in
the Collateral intended to be granted hereby at all times fully perfected and
in full force and effect.
2.5. LOCATION OF INVENTORY AND EQUIPMENT. All Inventory and
Equipment held on the date hereof by each Assignor is located at one of the
locations shown on Annex B hereto for such Assignor. Each Assignor agrees that
all Inventory and Equipment now held or subsequently acquired by it shall be
kept at (or shall be in transport to) any one of the locations shown on Annex B
hereto, or such new location as such Assignor may establish in accordance with
the last sentence of this Section 2.5. Any Assignor may establish a new location
for Inventory and Equipment only if (i) it shall have given to the Collateral
Agent not less than 15 days' prior written notice of its intention so to do,
clearly describing such new location and providing such other information in
connection therewith as the Collateral Agent may request, and (ii) with respect
to such new location, it shall have taken all action reasonably satisfactory to
the Collateral Agent to maintain the security interest of the Collateral Agent
in the Collateral intended to be granted hereby at all times fully perfected and
in full force and effect.
2.6. RECOURSE. This Agreement is made with full recourse to
each Assignor (including, without limitation, with full recourse to all assets
of such Assignor) and pursuant to and upon all the warranties, representations,
covenants and agreements on the part of such Assignor contained herein, in the
other Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
2.7. TRADE NAMES; CHANGE OF NAME. No Assignor has or operates
in any jurisdiction under, or in the preceding five years has had or has
operated in any jurisdiction under, any trade names, fictitious names or other
names except its legal name and such other trade or fictitious names as are
listed on Annex C hereto for such Assignor. No Assignor shall change its legal
name or assume or operate in any jurisdiction under any trade, fictitious or
other name except those names listed on Annex C hereto for such Assignor and new
names established in accordance with the last sentence of this Section 2.7. No
Assignor shall assume or operate in any jurisdiction under any new trade,
fictitious or other name until (i) it shall have given to the Collateral Agent
not less than 15 days' prior written notice of its intention so to do, clearly
describing such new name and the jurisdictions in which such new name shall be
used and providing such other information in connection therewith as the
Collateral Agent may reasonably request, and (ii) with respect to such new name,
it shall have taken all action reasonably requested by the Collateral Agent to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect.
ARTICLE III
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SPECIAL PROVISIONS CONCERNING RECEIVABLES;
CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER
3.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. As of the time
when each of its Receivables arises, each Assignor shall be deemed to have
represented and warranted that such Receivable, and all records, papers and
documents relating thereto (if any) are what they purport to be, and such
Receivable will evidence true and valid obligations of the account debtor named
therein.
3.2. MAINTENANCE OF RECORDS. Each Assignor will keep and
maintain at its own cost and expense accurate records of its Receivables and
Contracts, including, but not limited to, originals of all documentation
(including each Contract) with respect thereto, records of all payments
received, all credits granted thereon, all merchandise returned and all other
dealings therewith, and such Assignor will make the same available on such
Assignor's premises to the Collateral Agent for inspection, at such
Assignor's own cost and expense, at any and all reasonable times upon two
days prior notice to such Assignor. Upon the occurrence and during the
continuance of an Event of Default and at the request of the Collateral
Agent, such Assignor shall, at its own cost and expense, deliver all tangible
evidence of its Receivables and Contract Rights (including, without
limitation, all documents evidencing the Receivables and all Contracts) and
such books and records to the Collateral Agent or to its representatives
(copies of which evidence and books and records may be retained by such
Assignor). Upon the occurrence and during the continuance of an Event of
Default and if the Collateral Agent so directs, such Assignor shall legend,
in form and manner reasonably satisfactory to the Collateral Agent, the
Receivables and the Contracts, as well as books, records and documents (if
any) of such Assignor evidencing or pertaining to such Receivables and
Contracts with an appropriate reference to the fact that such Receivables and
Contracts have been assigned to the Collateral Agent and that the Collateral
Agent has a security interest therein.
3.3. DIRECTION TO ACCOUNT DEBTORS; CONTRACTING PARTIES;
ETC. Upon the occurrence and during the continuance of an Event of Default,
and if the Collateral Agent so directs any Assignor, such Assignor agrees (x)
to cause all payments on account of the Receivables and Contracts to be made
directly to the Cash Collateral Account, (y) that the Collateral Agent may,
at its option, directly notify the obligors with respect to any Receivables
and/or under any Contracts to make payments with respect thereto as provided
in the preceding clause (x), and (z) that the Collateral Agent may enforce
collection of any such Receivables and Contracts and may adjust, settle or
compromise the amount of payment thereof, in the same manner and to the same
extent as such Assignor. Without notice to or assent by any Assignor, the
Collateral Agent may apply any or all amounts then in, or thereafter
deposited in, the Cash Collateral Account which application shall be effected
in the manner provided in Section 7.4 of this Agreement. The costs and
expenses (including reasonable attorneys' fees) of collection, whether
incurred by an Assignor or the Collateral Agent, shall be borne by the
relevant Assignor. The Collateral Agent shall deliver a copy of each notice
referred to in the preceding clause (y) to the relevant Assignor, PROVIDED,
that the failure by the Collateral Agent to so notify such Assignor shall not
affect the effectiveness of such notice or the other rights of the Collateral
Agent created by this Section 3.3.
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3.4. MODIFICATION OF TERMS; ETC. Except in accordance with
such Assignor's reasonable business judgment, no Assignor shall rescind or
cancel any indebtedness evidenced by any Receivable or under any Contract, or
modify any term thereof or make any adjustment with respect thereto, or
extend or renew the same, or compromise or settle any material dispute,
claim, suit or legal proceeding relating thereto, or sell any Receivable or
Contract, or interest therein, without the prior written consent of the
Collateral Agent (which consent shall not be unreasonably withheld). Each
Assignor will duly fulfill all obligations on its part to be fulfilled under
or in connection with the Receivables and Contracts and will do nothing to
impair the rights of the Collateral Agent in the Receivables or Contracts.
3.5. COLLECTION. Each Assignor shall endeavor in accordance
with reasonable business practices to cause to be collected from the account
debtor named in each of its material Receivables or obligor under any
material Contract, as and when due (including, without limitation, amounts
which are delinquent, such amounts, if desirable in such Assignor's
reasonable business judgment, to be collected in accordance with generally
accepted lawful collection procedures) any and all amounts owing under or on
account of such material Receivable or material Contract, and apply forthwith
upon receipt thereof all such amounts as are so collected to the outstanding
balance of such material Receivable or under such material Contract, except
that, prior to the occurrence of an Event of Default, any Assignor may allow
in the ordinary course of business as adjustments to amounts owing under its
Receivables and Contracts (i) an extension or renewal of the time or times of
payment, or settlement for less than the total unpaid balance, which such
Assignor finds appropriate in accordance with reasonable business judgment
and (ii) a refund or credit due as a result of returned or damaged
merchandise or improperly performed services or for other reasons which such
Assignor finds appropriate in accordance with reasonable business judgment.
The reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees) of collection, whether incurred by an Assignor or the
Collateral Agent, shall be borne by the relevant Assignor.
3.6. INSTRUMENTS. Subject to the final paragraph of Section
1.1(a) hereof, if any Assignor owns or acquires any Instrument constituting
Collateral, such Assignor will within 10 Business Days notify the Collateral
Agent thereof, and upon request by the Collateral Agent will promptly deliver
such Instrument to the Collateral Agent appropriately endorsed to the order
of the Collateral Agent as further security hereunder.
3.7. ASSIGNORS REMAIN LIABLE UNDER RECEIVABLES. Anything
herein to the contrary notwithstanding, the Assignors shall remain liable
under each of the Receivables to observe and perform all of the conditions
and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise to such Receivables.
Neither the Collateral Agent nor any other Secured Creditor shall have any
obligation or liability under any Receivable (or any agreement giving rise
thereto) by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any other Secured Creditor of any payment relating to
such Receivable pursuant hereto, nor shall the Collateral Agent or any other
Secured Creditor be obligated in any manner to perform any of the obligations
of any Assignor under or pursuant to any Receivable (or any agreement giving
rise thereto), to make any payment, to make any inquiry as to the nature or
the sufficiency of any payment received by them or as to the
6
sufficiency of any performance by any party under any Receivable (or any
agreement giving rise thereto), to present or file any claim, to take any
action to enforce any performance or to collect the payment of any amounts
which may have been assigned to them or to which they may be entitled at any
time or times.
3.8. ASSIGNORS REMAIN LIABLE UNDER CONTRACTS. Anything
herein to the contrary notwithstanding, the Assignors shall remain liable
under each of the Contracts to observe and perform all of the conditions and
obligations to be observed and performed by them thereunder, all in
accordance with and pursuant to the terms and provisions of each Contract.
Neither the Collateral Agent nor any other Secured Creditor shall have any
obligation or liability under any Contract by reason of or arising out of
this Agreement or the receipt by the Collateral Agent or any other Secured
Creditor of any payment relating to such contract pursuant hereto, nor shall
the Collateral Agent or any other Secured Creditor be obligated in any manner
to perform any of the obligations of any Assignor under or pursuant to any
Contract, to make any payment, to make any inquiry as to the nature or the
sufficiency of any performance by any party under any Contract, to present or
file any claim, to take any action to enforce any performance or to collect
the payment of any amounts which may have been assigned to them or to which
they may be entitled at any time or times.
3.9. FURTHER ACTIONS. Each Assignor will, at its own
expense, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, certificates, reports and other assurances or instruments and
take such further steps relating to its Receivables, Contracts, Instruments
and other property or rights covered by the security interest hereby granted,
as the Collateral Agent may reasonably require, provided that, so long as no
Event of Default then exists and is continuing, the foregoing shall be
limited to such steps as may be required to perfect such security interest
(i) by the filing of UCC financing statements, (ii) by the filing of
appropriate assignments in the United States Patent and Trademark Office or
in the United States Copyright Office or (iii) by possession by the
Collateral Agent of such Collateral.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Each
Assignor represents and warrants that it is the true and lawful owner of or
otherwise has the right to use the registered Marks listed in Annex D hereto
for such Assignor and that said Marks listed on Annex D include all
registered United States marks and applications for United States marks
registered in or filed with the United States Patent and Trademark Office
that such Assignor owns or uses in connection with its business as of the
date hereof. Each Assignor represents and warrants that it owns, is licensed
to use or otherwise has the right to use, all material Marks that it uses.
Each Assignor further warrants that it has no knowledge of any third-party
claim that any aspect of such Assignor's present or contemplated business
operations infringes or will infringe any trademark, service mark or trade
name except for any such infringements which, individually or
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in the aggregate, could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities or
condition (financial or otherwise) of Holdings and its Subsidiaries taken as
a whole. Each Assignor represents and warrants that it is the true and lawful
owner of or otherwise has the right to use all U.S. trademark registrations
and applications listed in Annex D hereto and that said registrations are
valid, subsisting, have not been cancelled and that such Assignor is not
aware of any material third-party claim that any of said registrations is
invalid or unenforceable, or is not aware that there is any reason that any
of said registrations is invalid or unenforceable. Each Assignor hereby
grants to the Collateral Agent an absolute power of attorney to sign, upon
the occurrence and during the continuance of an Event of Default, any
document which may be required by the United States Patent and Trademark
Office in order to effect an absolute assignment of all right, title and
interest in each Mark, and record the same.
4.2. LICENSES AND ASSIGNMENTS. Except as otherwise
permitted by the Secured Debt Agreements, and except where such divestiture
would not be reasonably likely to have a material adverse effect on the
business of Holdings and its Subsidiaries taken as a whole, each Assignor
hereby agrees not to divest itself of any right under any Mark absent prior
written approval of the Collateral Agent.
4.3. INFRINGEMENTS. Each Assignor agrees, promptly upon
learning thereof, to notify the Collateral Agent in writing of the name and
address of, and to furnish such pertinent information that may be available
with respect to, any party who such Assignor believes is infringing or
diluting or otherwise violating in any material respect any of such
Assignor's rights in and to any material Mark, or with respect to any party
claiming that such Assignor's use of any material Mark violates in any
material respect any property right of that party. Each Assignor further
agrees, to the extent Assignor, in the exercise of its reasonable business
judgment, deems necessary or desirable, to prosecute any Person so infringing
any material Mark in accordance with reasonable business practices.
4.4. PRESERVATION OF MARKS. Each Assignor agrees to the
extent Assignor, in the exercise of its reasonable business judgment, deems
necessary or desirable, to use its material Marks in interstate commerce
during the time in which this Agreement is in effect and to take all such
other actions as are necessary to preserve such Marks as trademarks or
service marks under the laws of the United States.
4.5. MAINTENANCE OF REGISTRATION. Each Assignor shall to
the extent Assignor, in the exercise of its reasonable business judgment,
deems necessary or desirable, at its own expense, diligently process all
documents required to maintain trademark registrations, including but not
limited to affidavits of use and applications for renewals of registration in
the United States Patent and Trademark Office for all of its registered
material Marks, and except where such nonpayment or abandonment would not be
reasonably likely to have a material adverse effect on the business of
Holdings and its Subsidiaries taken as a whole, shall pay all fees and
disbursements in connection therewith and shall not abandon any such filing
of affidavit of use or any such application of renewal prior to the
exhaustion of all administrative and judicial remedies without prior written
consent of the Collateral Agent.
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4.6. FUTURE REGISTERED MARKS. If any Mark registration is
issued hereafter to any Assignor as a result of any application now or
hereafter pending before the United States Patent and Trademark Office,
within 30 days of receipt of such certificate, such Assignor shall deliver to
the Collateral Agent a copy of such certificate, and an assignment for
security in such Mark, to the Collateral Agent and at the expense of such
Assignor, confirming the assignment for security in such Mark to the
Collateral Agent hereunder, the form of such security to be substantially the
same as the form hereof or in such other form as may be reasonably
satisfactory to the Collateral Agent.
4.7. REMEDIES. If an Event of Default shall occur and be
continuing, the Collateral Agent may, by written notice to the relevant
Assignor, take any or all of the following actions: (i) declare the entire
right, title and interest of such Assignor in and to each of the Marks,
together with all trademark rights and rights of protection to the same,
vested in the Collateral Agent for the benefit of the Secured Creditors, in
which event such rights, title and interest shall immediately vest, in the
Collateral Agent for the benefit of the Secured Creditors, and the Collateral
Agent shall be entitled to exercise the power of attorney referred to in
Section 4.1 hereof to execute, cause to be acknowledged and notarized and
record said absolute assignment with the applicable agency; (ii) take and use
or sell the Marks and the goodwill of such Assignor's business symbolized by
the Marks and the right to carry on the business and use the assets of such
Assignor in connection with which the Marks have been used; and (iii) direct
such Assignor to refrain, in which event such Assignor shall refrain, from
using the Marks in any manner whatsoever, directly or indirectly, and such
Assignor shall execute such further documents that the Collateral Agent may
reasonably request to further confirm this and to transfer ownership of the
Marks and registrations and any pending trademark application in the United
States Patent and Trademark Office to the Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Each
Assignor represents and warrants that it is the true and lawful owner of all
rights in or has a license to use (i) all United States trade secrets and
proprietary information necessary to operate the business of the Assignor
(the "Trade Secret Rights"), (ii) the Patents listed in Annex E hereto for
such Assignor and that said Patents listed on Annex E include all the United
States patents and applications for United States patents that such Assignor
owns as of the date hereof and (iii) the Copyrights listed in Annex F hereto
for such Assignor and that said Copyrights listed on Annex F constitute all
the United States copyrights registered with the United States Copyright
Office and applications for United States copyrights that such Assignor owns
as of the date hereof. Each Assignor further warrants that it has no
knowledge of any third-party claim that any aspect of such Assignor's present
or contemplated business operations infringes or will infringe any patent or
such Assignor has misappropriated any trade secret or proprietary information
except for any such infringements which, individually or in the aggregate,
could not reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities or condition
9
(financial or otherwise) of Holdings and its Subsidiaries taken as a whole.
Each Assignor hereby grants to the Collateral Agent an absolute power of
attorney to sign, upon the occurrence and during the continuance of any Event
of Default, any document which may be required by the United States Patent
and Trademark Office in order to effect an absolute assignment of all right,
title and interest in each Patent, and to record the same.
5.2. LICENSES AND ASSIGNMENTS. Except as otherwise
permitted by the Secured Debt Agreements and except where such divestiture
would not be reasonably likely to have a material adverse effect on the
business of Holdings and its Subsidiaries taken as a whole, each Assignor
hereby agrees not to divest itself of any right under any Patent or Copyright
acquired after the date hereof absent prior written approval of the
Collateral Agent.
5.3. INFRINGEMENTS. Each Assignor agrees, promptly upon
learning thereof, to furnish the Collateral Agent in writing with all
pertinent information available to such Assignor with respect to any
infringement, contributing infringement or active inducement to infringe in
any material Patent or material Copyright or to any claim that the practice
of any material Patent or use of any material Copyright violates any property
right of a third party, or with respect to any misappropriation of any
material Trade Secret Right or any claim that practice of any material Trade
Secret Right violates any property right of a third party. Each Assignor
further agrees diligently to prosecute any Person infringing any material
Patent or material Copyright or any Person misappropriating any material
Trade Secret Right in accordance with, and to the extent deemed necessary or
desirable by Assignor in the exercise of Assignor's reasonable business
judgment.
5.4. MAINTENANCE OF PATENTS OR COPYRIGHT. At its own
expense, each Assignor shall to the extent Assignor, in the exercise of its
reasonable business judgment, deems ncecessary or desirable, make timely
payment of all post-issuance fees required pursuant to 35 U.S.C. ss. 41 to
maintain in force its rights under each material Patent or material
Copyright, absent prior written consent of the Collateral Agent.
5.5. PROSECUTION OF PATENT APPLICATIONS. At its own
expense, each Assignor shall to the extent Assignor, in the exercise of its
reasonable business judgment, deems necessary or desirable, diligently
prosecute all applications for (i) material United States Patents listed in
Annex E hereto and (ii) material Copyrights listed on Annex F hereto, in each
case for such Assignor and shall not abandon any such application prior to
exhaustion of all administrative and judicial remedies, absent written
consent of the Collateral Agent, except where such abandonment would not be
reasonably likely to have a material adverse effect on the business of
Holdings and its Subsidiaries taken as a whole.
5.6. OTHER PATENTS AND COPYRIGHTS. Within 30 days of the
acquisition or issuance of a United States Patent, registration of a
Copyright, or acquisition of a registered Copyright, or of filing of an
application for a United States Patent or Copyright, the relevant Assignor
shall deliver to the Collateral Agent a copy of said Copyright or certificate
or registration of, or application therefor, said Patents, as the case may
be, with an assignment for security as to such Patent or Copyright, as the
case may be, to the Collateral Agent and at the expense of such
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Assignor, confirming the assignment for security, the form of such assignment
for security to be substantially the same as the form hereof or in such other
form as may be reasonably satisfactory to the Collateral Agent.
5.7. REMEDIES. If an Event of Default shall occur and be
continuing, the Collateral Agent may by written notice to the relevant
Assignor, take any or all of the following actions: (i) declare the entire
right, title, and interest of such Assignor in each of the Patents and
Copyrights vested in the Collateral Agent for the benefit of the Secured
Creditors, in which event such right, title, and interest shall immediately
vest in the Collateral Agent for the benefit of the Secured Creditors, in
which case the Collateral Agent shall be entitled to exercise the power of
attorney referred to in Section 5.1 hereof to execute, cause to be
acknowledged and notarized and to record said absolute assignment with the
applicable agency; (ii) take and practice or sell the Patents and Copyrights;
and (iii) direct such Assignor to refrain, in which event such Assignor shall
refrain, from practicing the Patents and using the Copyrights directly or
indirectly, and such Assignor shall execute such further documents as the
Collateral Agent may reasonably request further to confirm this and to
transfer ownership of the Patents and Copyrights to the Collateral Agent for
the benefit of the Secured Creditors.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1. PROTECTION OF COLLATERAL AGENT'S SECURITY. Each
Assignor will do nothing to impair the rights of the Collateral Agent in the
Collateral except as expressly permitted in the Credit Agreement. Each
Assignor will at all times keep its Inventory and Equipment insured in favor
of the Collateral Agent, at such Assignor's own expense to the extent and in
the manner provided in the Credit Agreement. Except to the extent otherwise
permitted to be retained by such Assignor or applied by such Assignor
pursuant to the terms of the Credit Agreement, the Collateral Agent shall, at
the time any proceeds of such insurance are distributed to the Secured
Creditors, apply such proceeds in accordance with Section 7.4 hereof. Each
Assignor assumes all liability and responsibility in connection with the
Collateral acquired by it and the liability of such Assignor to pay the
Obligations shall in no way be affected or diminished by reason of the fact
that such Collateral may be lost, destroyed, stolen, damaged or for any
reason whatsoever unavailable to such Assignor.
6.2. WAREHOUSE RECEIPTS NON-NEGOTIABLE. Each Assignor
agrees that if any warehouse receipt or receipt in the nature of a warehouse
receipt is issued with respect to any of its Inventory, such Assignor shall
request that such warehouse receipt or receipt in the nature thereof shall
not be "negotiable" (as such term is used in Section 7-104 of the Uniform
Commercial Code as in effect in any relevant jurisdiction or under other
relevant law).
6.3. FINANCING STATEMENTS. Each Assignor agrees to execute
and deliver to the Collateral Agent such financing statements, in form
reasonably acceptable to the Collateral Agent, as the Collateral Agent may
from time to time reasonably request or as are necessary or desirable in the
opinion of the Collateral Agent to establish and maintain a valid,
enforceable, first-priority perfected security interest in the Collateral as
provided herein (subject to Permitted
11
Liens) and the other rights and security contemplated hereby all in
accordance with the UCC as enacted in any and all relevant jurisdictions or
any other relevant law. Each Assignor will pay any applicable filing fees,
recordation taxes and related expenses relating to its Collateral. Each
Assignor hereby authorizes the Collateral Agent to file any such financing
statements without the signature of such Assignor where permitted by law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. REMEDIES; OBTAINING THE COLLATERAL UPON DEFAULT. Each
Assignor agrees that, if any Event of Default shall have occurred and be
continuing, then and in every such case, the Collateral Agent, in addition to
any rights now or hereafter existing under applicable law, shall have all
rights as a secured creditor under any UCC, and such additional rights and
remedies to which a secured creditor is entitled under the laws in effect, in
all relevant jurisdictions and may:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or
any other Person who then has possession of any part thereof with or
without notice or process of law, and for that purpose may enter upon
such Assignor's premises where any of the Collateral is located and
remove the same and use in connection with such removal any and all
services, supplies, aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement,
instrument or other obligation (including, without limitation, the
Receivables and the Contracts) constituting the Collateral to make any
payment required by the terms of such agreement, instrument or other
obligation directly to the Collateral Agent and may exercise any and
all remedies of such Assignor in respect of such Collateral;
(iii) withdraw all monies, securities and instruments in the
Cash Collateral Account for application to the Obligations in
accordance with Section 7.4 hereof;
(iv) sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof in accordance with Section 7.2 hereof,
or direct the relevant Assignor to sell, assign or otherwise liquidate
any or all of the Collateral or any part thereof, and, in each case,
take possession of the proceeds of any such sale or liquidation;
(v) take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to deliver the same to the
Collateral Agent at any place or places reasonably designated by the
Collateral Agent, in which event such Assignor shall at its own
expense:
(x) forthwith cause the same to be moved to the place
or places so reasonably designated by the Collateral Agent and
there delivered to the Collateral Agent;
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(y) store and keep any Collateral so delivered to the
Collateral Agent at such place or places pending further
action by the Collateral Agent as provided in Section 7.2
hereof; and
(z) while the Collateral shall be so stored and kept,
provide such guards and maintenance services as shall be
necessary to protect the same and to preserve and maintain
them in good condition; and
(vi) license or sublicense, whether on an exclusive or
nonexclusive basis, any Marks, Patents or Copyrights included in the
Collateral for such term and on such conditions and in such manner as
the Collateral Agent shall in its sole judgment determine;
it being understood that each Assignor's obligation so to deliver the
Collateral is of the essence of this Agreement and that, accordingly, upon
application to a court of equity having jurisdiction, the Collateral Agent
shall be entitled to a decree requiring specific performance by such Assignor
of said obligation. By accepting the benefits of this Agreement, the Secured
Creditors agree that this Agreement may be enforced only by the action of the
Agent or the Collateral Agent acting upon the instructions of the Required
Secured Creditors and that no other Secured Creditor shall have any right
individually to seek to enforce this Agreement or to realize upon the
security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Collateral Agent for the benefit
of the Secured Creditors upon the terms of this Agreement and the Credit
Agreement.
7.2. REMEDIES; DISPOSITION OF THE COLLATERAL. If any Event
of Default shall have occurred and be continuing, then any Collateral
repossessed by the Collateral Agent under or pursuant to Section 7.1 hereof
and any other Collateral whether or not so repossessed by the Collateral
Agent, may be sold, assigned, leased or otherwise disposed of under one or
more contracts or as an entirety, and without the necessity of gathering at
the place of sale the property to be sold, and in general in such manner, at
such time or times, at such place or places and on such terms as the
Collateral Agent may, in compliance with any mandatory requirements of
applicable law, determine to be commercially reasonable. Any of the
Collateral may be sold, leased or otherwise disposed of, in the condition in
which the same existed when taken by the Collateral Agent or after any
overhaul or repair at the expense of the relevant Assignor which the
Collateral Agent shall determine to be commercially reasonable. Any such
disposition that shall be a private sale or other private proceedings
permitted by such requirements shall be made upon not less than 10 days'
prior written notice to the relevant Assignor specifying the time at which
such disposition is to be made and the intended sale price or other
consideration therefor, and shall be subject, for the 10 days after the
giving of such notice, to the right of the relevant Assignor or any nominee
of such Assignor to acquire the Collateral involved at a price or for such
other consideration at least equal to the intended sale price or other
consideration so specified. Any such disposition which shall be a public sale
permitted by such requirements shall be made upon not less than 10 days'
prior written notice to the relevant Assignor specifying the time and place
of such sale and, in the absence of applicable requirements of law, shall be
by public auction (which may, at the Collateral Agent's option, be subject to
reserve), after
13
publication of notice of such auction (where required by applicable law) not
less than 10 days prior thereto. The Collateral Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
the sale, and such sale may be made at any time or place to which the sale
may be so adjourned. To the extent permitted by any such requirement of law,
the Collateral Agent may bid for and become the purchaser of the Collateral
or any item thereof, offered for sale in accordance with this Section without
accountability to the relevant Assignor. If, under mandatory requirements of
applicable law, the Collateral Agent shall be required to make disposition of
the Collateral within a period of time which does not permit the giving of
notice to the relevant Assignor as hereinabove specified, the Collateral
Agent need give such Assignor only such notice of disposition as shall be
reasonably practicable in view of such mandatory requirements of applicable
law. Each Assignor agrees to do or cause to be done all such other acts and
things as may be reasonably necessary to make such sale or sales of all or
any portion of the Collateral valid and binding and in compliance with any
and all applicable laws, regulations, orders, writs, injunctions, decrees or
awards of any and all courts, arbitrators or governmental instrumentalities,
domestic or foreign, having jurisdiction over any such sale or sales, all at
such Assignor's expense.
7.3. WAIVER OF CLAIMS. Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S
TAKING POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES, and each Assignor hereby further waives,
to the extent permitted by law:
(i) all damages occasioned by such taking of possession except
any damages which are the direct result of the Collateral Agent's gross
negligence or willful misconduct;
(ii) all other requirements as to the time, place and terms of
sale or other requirements with respect to the enforcement of the
Collateral Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Agreement or
the absolute sale of the Collateral or any portion thereof, and each
Assignor, for itself and all who may claim under it, insofar as it or
they now or hereafter lawfully may, hereby waives the benefit of all
such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against such
Assignor and against any and all Persons claiming or attempting to claim the
14
Collateral so sold, optioned or realized upon, or any part thereof, from,
through and under such Assignor.
7.4. APPLICATION OF PROCEEDS. (a) All moneys collected by
the Collateral Agent (or, to the extent the Pledge Agreement, any Mortgage or
any Additional Security Document require proceeds of collateral under such
Security Document to be applied in accordance with the provisions of this
Agreement, the Pledgee or Mortgagee under such other Security Document) upon
any sale or other disposition of the Collateral, together with all other
moneys received by the Collateral Agent hereunder, shall be applied as
follows.
(i) first, to the payment of all amounts owing the Collateral
Agent of the type described in clauses (iii) and (iv) of the definition
of "Obligations";
(ii) second, to the extent proceeds remain after the
application pursuant to the preceding clause (i), an amount equal to
the outstanding Primary Obligations shall be paid to the Secured
Creditors as provided in Section 7.4(e) hereof, with each Secured
Creditor receiving an amount equal to such outstanding Primary
Obligations or, if the proceeds are insufficient to pay in full all
such Primary Obligations, its Pro Rata Share (as defined below) of the
amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), an amount
equal to the outstanding Secondary Obligations shall be paid to the
Secured Creditors as provided in Section 7.4(e) hereof, with each
Secured Creditor receiving an amount equal to its outstanding Secondary
Obligations or, if the proceeds are insufficient to pay in full all
such Secondary Obligations, its Pro Rata Share of the amount remaining
to be distributed; and
(iv) fourth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) through (iii),
inclusive, and following the termination of this Agreement pursuant to
Section 10.8(a) hereof, to the relevant Assignor or to whomever may be
lawfully entitled to receive such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall
mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's Primary
Obligations or Secondary Obligations, as the case may be, and the denominator of
which is the then outstanding amount of all Primary Obligations or Secondary
Obligations, as the case may be, (y) "Primary Obligations" shall mean (i) in the
case of the Credit Document Obligations, all principal of, and interest on, all
Loans, all Unpaid Drawings and all Fees and (ii) in the case of the Other
Obligations, all amounts due under such Interest Rate Protection Agreements or
Other Hedging Agreements, but only if such Interest Rate Protection Agreements
or Other Hedging Agreements constitute Guaranteed Obligations of the Borrower
(other than indemnities, fees (including, without limitation, attorneys' fees)
and similar obligations and liabilities) and (z) "Secondary Obligations" shall
mean all Obligations other than Primary Obligations.
15
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 7.4 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its
Pro Rata Share of any distribution would result in overpayment to such
Secured Creditor, such excess amount shall instead be distributed in respect
of the unpaid Primary Obligations or Secondary Obligations, as the case may
be, of the other Secured Creditors, with each Secured Creditor whose Primary
Obligations or Secondary Obligations, as the case may be, have not been paid
in full to receive an amount equal to such excess amount multiplied by a
fraction the numerator of which is the unpaid Primary Obligations or
Secondary Obligations, as the case may be, of such Secured Creditor and the
denominator of which is the unpaid Primary Obligations or Secondary
Obligations, as the case may be, of all Secured Creditors entitled to such
distribution.
(d) Each of the Secured Creditors, by their acceptance of
the benefits hereof, agrees and acknowledges that if the Lender Creditors are
to receive a distribution on account of undrawn amounts with respect to
Letters of Credit issued under the Credit Agreement (which shall only occur
after all outstanding Loans and Unpaid Drawings with respect to such Letters
of Credit have been paid in full), such amounts shall be paid to the
Administrative Agent under the Credit Agreement and held by it, for the equal
and ratable benefit of the Lender Creditors, as cash security for the
repayment of Obligations owing to the Lender Creditors as such. If any
amounts are held as cash security pursuant to the immediately preceding
sentence, then upon the termination of all outstanding Letters of Credit, and
after the application of all such cash security to the repayment of all
Obligations owing to the Lender Creditors after giving effect to the
termination of all such Letters of Credit, if there remains any excess cash,
such excess cash shall be returned by the Administrative Agent to the
Collateral Agent for distribution in accordance with Section 7.4(a) hereof.
(e) All payments required to be made hereunder shall be
made (x) if to the Lender Creditors, to the Administrative Agent under the
Credit Agreement for the account of the Lender Creditors, and (y) if to the
Other Creditors, to the trustee, paying agent or other similar representative
(each a "Representative") for the Other Creditors or, in the absence of such
a Representative, directly to the Other Creditors.
(f) For purposes of applying payments received in
accordance with this Section 7.4, the Collateral Agent shall be entitled to
rely upon (i) the Administrative Agent under the Credit Agreement and (ii)
the Representative for the Other Creditors or, in the absence of such a
Representative, upon the Other Creditors for a determination (which the
Administrative Agent, each Representative for any Other Creditors and the
Secured Creditors agree (or shall agree) to provide upon request of the
Collateral Agent) of the outstanding Primary Obligations and Secondary
Obligations owed to the Lender Creditors or the Other Creditors, as the case
may be. Unless it
16
has actual knowledge (including by way of written notice from a Lender
Creditor or an Other Creditor) to the contrary, the Administrative Agent and
each Representative, in furnishing information pursuant to the preceding
sentence, and the Collateral Agent, in acting hereunder, shall be entitled to
assume that no Secondary Obligations are outstanding. Unless it has actual
knowledge (including by way of written notice from an Other Creditor) to the
contrary, the Collateral Agent, in acting hereunder, shall be entitled to
assume that no Interest Rate Protection Agreements or Other Hedging
Agreements are in existence.
(g) It is understood that the Assignors shall remain jointly
and severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral and the aggregate amount of the Obligations.
7.5. REMEDIES CUMULATIVE. Each and every right, power and
remedy hereby specifically given to the Collateral Agent shall be in addition
to every other right, power and remedy specifically given under this
Agreement, under the other Secured Debt Agreements or now or hereafter
existing at law, in equity or by statute and each and every right, power and
remedy whether specifically herein given or otherwise existing may be
exercised from time to time or simultaneously and as often and in such order
as may be deemed expedient by the Collateral Agent. All such rights, powers
and remedies shall be cumulative and the exercise or the beginning of the
exercise of one shall not be deemed a waiver of the right to exercise any
other or others. No delay or omission of the Collateral Agent in the exercise
of any such right, power or remedy and no renewal or extension of any of the
Obligations shall impair any such right, power or remedy or shall be
construed to be a waiver of any Default or Event of Default or an
acquiescence therein. No notice to or demand on any Assignor in any case
shall entitle it to any other or further notice or demand in similar or other
circumstances or constitute a waiver of any of the rights of the Collateral
Agent to any other or further action in any circumstances without notice or
demand. In the event that the Collateral Agent shall bring any suit to
enforce any of its rights hereunder and shall be entitled to judgment, then
in such suit the Collateral Agent may recover reasonable expenses, including
reasonable attorneys' fees, and the amounts thereof shall be included in such
judgment.
7.6. DISCONTINUANCE OF PROCEEDINGS. In case the Collateral
Agent shall have instituted any proceeding to enforce any right, power or
remedy under this Agreement by foreclosure, sale, entry or otherwise, and
such proceeding shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Collateral Agent, then and in
every such case the relevant Assignor, the Collateral Agent and each holder
of any of the Obligations shall be restored to their former positions and
rights hereunder with respect to the Collateral subject to the security
interest created under this Agreement, and all rights, remedies and powers of
the Collateral Agent shall continue as if no such proceeding had been
instituted.
ARTICLE VIII
INDEMNITY
8.1. INDEMNITY. (a) Each Assignor jointly and severally agrees
to indemnify, reimburse and hold the Collateral Agent, each other Secured
Creditor and their respective successors, permitted assigns, employees, agents
and servants (hereinafter in this Section 8.1 referred to individually as
"Indemnitee," and collectively as "Indemnitees") harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and any and all costs, expenses or disbursements
(including reasonable attorneys' fees
17
and expenses) (for the purposes of this Section 8.1 the foregoing are
collectively called "expenses") of whatsoever kind and nature imposed on,
asserted against or incurred by any of the Indemnitees in any way relating to
or arising out of this Agreement, any other Secured Debt Agreement or any
other document executed in connection herewith or therewith or in any other
way connected with the administration of the transactions contemplated hereby
or thereby or the enforcement of any of the terms of, or the preservation of
any rights under any thereof, or in any way relating to or arising out of the
manufacture, ownership, ordering, purchase, delivery, performance, control,
acceptance, lease, financing, possession, operation, condition, sale, return
or other disposition, or use of the Collateral (including, without
limitation, latent or other defects, whether or not discoverable), the
violation of the laws of any country, state or other governmental body or
unit, any tort (including, without limitation, claims arising or imposed
under the doctrine of strict liability, or for or on account of injury to or
the death of any Person (including any Indemnitee), or property damage), or
contract claim; provided that no Indemnitee shall be indemnified pursuant to
this Section 8.1(a) for losses, damages or liabilities to the extent caused
by the gross negligence or wilful misconduct of such Indemnitee (as finally
determined by a court of competent jurisdiction). Each Assignor agrees that
upon written notice by any Indemnitee of the assertion of such a liability,
obligation, damage, injury, penalty, claim, demand, action, suit or judgment,
the relevant Assignor shall assume full responsibility for the defense
thereof. Each Indemnitee agrees to use its best efforts to promptly notify
the relevant Assignor of any such assertion of which such Indemnitee has
knowledge.
(b) Without limiting the application of Section 8.1(a)
hereof, each Assignor agrees, jointly and severally, to pay, or reimburse the
Collateral Agent for any and all reasonable fees, costs and expenses of
whatever kind or nature incurred in connection with the creation,
preservation or protection of the Collateral Agent's Liens on, and security
interest in, the Collateral, including, without limitation, all fees and
taxes in connection with the recording or filing of instruments and documents
in public offices, payment or discharge of any taxes or Liens upon or in
respect of the Collateral, premiums for insurance with respect to the
Collateral and all other fees, costs and expenses in connection with
protecting, maintaining or preserving the Collateral and the Collateral
Agent's interest therein, whether through judicial proceedings or otherwise,
or in defending or prosecuting any actions, suits or proceedings arising out
of or relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or
(b) hereof, each Assignor agrees, jointly and severally, to pay, indemnify
and hold each Indemnitee harmless from and against any loss, costs, damages
and expenses which such Indemnitee may suffer, expend or incur in consequence
of or growing out of any misrepresentation by any Assignor in this Agreement,
in any other Secured Debt Agreement or in any writing contemplated by or made
or delivered pursuant to or in connection with this Agreement or any other
Secured Debt Agreement.
(d) If and to the extent that the obligations of any Assignor
under this Section 8.1 are unenforceable for any reason, such Assignor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations that is permissible under applicable law.
18
8.2. INDEMNITY OBLIGATIONS SECURED BY COLLATERAL; SURVIVAL.
Any amounts paid by any Indemnitee as to which such Indemnitee has the right
to reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Assignor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment of all of
the other Obligations and notwithstanding the full payment of all the Notes
issued under the Credit Agreement, the termination of all Interest Rate
Protection Agreements or Other Hedging Agreements and all Letters of Credit
and the payment of all other Obligations and notwithstanding the discharge
thereof.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified.
Such definitions shall be equally applicable to the singular and plural forms of
the terms defined.
"Administrative Agent" shall have the meaning provided in the
recitals of this Agreement.
"Agreement" shall mean this Security Agreement as the same
may be modified, supplemented or amended from time to time in accordance with
its terms.
"Assignor" shall have the meaning provided in the first
paragraph of this Agreement.
"Lender Creditors" shall have the meaning provided in the
recitals of this Agreement.
"Lenders" shall have the meaning provided in the recitals
of this Agreement.
"Borrower" shall have the meaning provided in the recitals
of this Agreement.
"Cash Collateral Account" shall mean a cash collateral
account maintained with, and in the sole dominion and control of, the
Collateral Agent for the benefit of the Secured Creditors.
"Chattel Paper" shall have the meaning provided in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Class" shall have the meaning provided in Section 10.2 of
this Agreement.
"Collateral" shall have the meaning provided in Section
1.1(a) of this Agreement.
"Collateral Agent" shall have the meaning provided in the
first paragraph of this Agreement.
19
"Contract Rights" shall mean all rights of any Assignor
under each Contract, including, without limitation, (i) any and all rights to
receive and demand payments under any or all Contracts, (ii) any and all
rights to receive and compel performance under any or all Contracts and (iii)
any and all other rights, interests and claims now existing or in the future
arising in connection with any or all Contracts.
"Contracts" shall mean all contracts between any Assignor
and one or more additional parties (including, without limitation, any
Interest Rate Protection Agreements or Other Hedging Agreements and any
partnership agreements), but excluding any contract to the extent that the
terms thereof prohibit (after giving effect to any approvals or waivers) the
assignment of, or granting a security interest in, such contract (it being
understood and agreed, however, that notwithstanding the foregoing, all
rights to payment for money due or to become due pursuant to any such
excluded contract shall be subject to the security interests created by this
Agreement).
"Copyrights" shall mean any copyright owned by any
Assignor, including any registrations of any copyrights, in the United States
Copyright Office or any foreign equivalent office, as well as any application
for a copyright registration now or hereafter made with the United States
Copyright Office or any foreign equivalent office by any Assignor.
"Credit Agreement" shall have the meaning provided in the
recitals of this Agreement.
"Credit Document Obligations" shall have the meaning
provided in the definition of "Obligations" in this Article IX.
"Default" shall mean any event which, with notice or lapse
of time, or both, would constitute an Event of Default.
"Documents" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York, now or hereafter owned by any Assignor and, in any event,
shall include, but shall not be limited to, all machinery, equipment,
furnishings, fixtures and vehicles now or hereafter owned by any Assignor and
any and all additions, substitutions and replacements of any of the
foregoing, wherever located, together with all attachments, components,
parts, equipment and accessories installed thereon or affixed thereto.
"Event of Default" shall mean any Event of Default under,
and as defined in, the Credit Agreement and shall in any event include,
without limitation, any payment default on any of the Other Obligations after
the expiration of any applicable grace period.
"General Intangibles" shall have the meaning provided in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, provided that, in the
20
case of General Intangibles which are Permits, the assignment thereof shall
be limited as specified in the definition of Permits.
"Goods" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Indemnitee" shall have the meaning provided in Section 8.1
of this Agreement.
"Instrument" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Inventory" shall mean merchandise, inventory and goods,
and all additions, substitutions and replacements thereof, wherever located,
together with all goods, supplies, incidentals, packaging materials, labels,
materials and any other items used or usable in manufacturing, processing,
packaging or shipping same, in all stages of production -- from raw materials
through work-in-process to finished goods -- and all products and proceeds of
whatever sort and wherever located and any portion thereof which may be
returned, rejected, reclaimed or repossessed by the Collateral Agent from any
Assignor's customers, and shall specifically include all "inventory" as such
term is defined in the Uniform Commercial Code as in effect on the date
hereof in the State of New York, now or hereafter owned by any Assignor.
"Investment Property" shall have the meaning provided in
the Uniform Commercial Code as in effect on the date hereof in the State of
New York.
"Liens" shall mean any security interest, mortgage, pledge,
lien, claim, charge, encumbrance, title retention agreement, lessor's
interest in a financing lease or analogous instrument, in, of, or on any
Assignor's property.
"Marks" shall mean all right, title and interest in and to
any trademarks, service marks and trade names now held or hereafter acquired
by any Assignor, including any registration of any trademarks and service
marks in the United States Patent and Trademark Office or in any equivalent
foreign office and any trade dress including logos and/or designs used by any
Assignor.
"Obligations" shall mean (i) the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of
all obligations and indebtedness (including, without limitation, indemnities,
Fees and interest thereon) of each Assignor to the Lender Creditors, whether
now existing or hereafter incurred under, arising out of, or in connection
with the Credit Agreement and the other Credit Documents to which such
Assignor is a party (including, in the case of each Guarantor, all such
obligations and indebtedness of such Guarantor under its Guaranty) and the
due performance and compliance by such Assignor with all of the terms,
conditions and agreements contained in the Credit Agreement and such other
Credit Documents (all such obligations and liabilities under this clause (i),
except to the extent consisting of obligations or indebtedness with respect
to Interest Rate Protection Agreements or Other Hedging Agreements, being
herein collectively called the "Credit Document Obligations"); (ii) the full
and prompt payment when due (whether at the stated maturity, by
21
acceleration or otherwise) of all obligations and liabilities owing by such
Assignor to the Other Creditors under, or with respect to (including by
reason of any Guaranty to which such Assignor is a party), any Interest Rate
Protection Agreement or Other Hedging Agreement, whether such Interest Rate
Protection Agreement or Other Hedging Agreement is now in existence or
hereafter arising, and the due performance and compliance by such Assignor
with all of the terms, conditions and agreements contained therein, but not
if such Other Creditor in writing expressly agrees that such Interest Rate
Protection Agreement or Other Hedging Agreement shall not be an Other
Obligation (all such obligations and liabilities described in this clause
(ii) being herein collectively called the "Other Obligations"); (iii) any and
all sums reasonably advanced by the Assignee in order to preserve the
Collateral or preserve its security interest in the Collateral; (iv) in the
event of any proceeding for the collection or enforcement of any
indebtedness, obligations or liabilities of such Assignor referred to in
clauses (i) and (ii) above, after an Event of Default shall have occurred and
be continuing, the reasonable expenses of retaking, holding, preparing for
sale or lease, selling or otherwise disposing of or realizing on the
Collateral, or of any exercise by the Assignee of its rights hereunder,
together with reasonable attorneys' fees and court costs; and (v) all amounts
paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement under Section 8.1 of this Agreement; all such obligations,
liabilities, sums and expenses set forth in clauses (i) through (v) of this
Article IX being herein collectively called the "Obligations," it being
acknowledged and agreed that the "Obligations" shall include extensions of
credit of the types described above, whether outstanding on the date of this
Agreement or extended from time to time after the date of this Agreement.
"Other Creditors" shall have the meaning provided in the
recitals of this Agreement.
"Other Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"Patents" shall mean any patent to which any Assignor now
or hereafter has title and any divisions or continuations thereof, as well as
any application for a patent now or hereafter made by any Assignor.
"Permits" shall mean, to the extent permitted to be
assigned by the terms thereof or by applicable law, all licenses, permits,
rights, orders, variances, franchises or authorizations of or from any
governmental authority or agency.
"Primary Obligations" shall have the meaning provided in
Section 7.4(b) of this Agreement.
"Pro Rata Share" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Proceeds" shall have the meaning provided in the Uniform
Commercial Code as in effect in the State of New York on the date hereof or
under other relevant law and, in any event, shall include, but not be limited
to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to the Collateral Agent or any Assignor from time to time with
22
respect to any of the Collateral, (ii) any and all payments (in any form
whatsoever) made or due and payable to any Assignor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental authority
(or any person acting under color of governmental authority) and (iii) any
and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
"Receivables" shall mean any "account" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York, now or hereafter owned by any Assignor and, in any event,
shall include, but shall not be limited to, all of such Assignor's rights to
payment for goods sold or leased or services performed by such Assignor,
whether now in existence or arising from time to time hereafter, including,
without limitation, rights evidenced by an account, note, contract, security
agreement, chattel paper, or other evidence of indebtedness or security,
together with (a) all security pledged, assigned, hypothecated or granted to
or held by such Assignor to secure the foregoing, (b) all of any Assignor's
right, title and interest in and to any goods, the sale of which gave rise
thereto, (c) all guarantees, endorsements and indemnifications on, or of, any
of the foregoing, (d) all powers of attorney for the execution of any
evidence of indebtedness or security or other writing in connection
therewith, (e) all books, records, ledger cards, and invoices relating
thereto, (f) all evidences of the filing of financing statements and other
statements and the registration of other instruments in connection therewith
and amendments thereto, notices to other creditors or secured parties, and
certificates from filing or other registration officers, (g) all credit
information, reports and memoranda relating thereto and (h) all other
writings related in any way to the foregoing.
"Representative" shall have the meaning provided in Section
7.4(e) of this Agreement.
"Required Secured Creditors" shall mean (i) the Required
Lenders (or, to the extent required by Section 13.12 of the Credit Agreement,
each of the Lenders) under the Credit Agreement so long as any Credit
Document Obligations remain outstanding and (ii) in any situation not covered
by the preceding clause (i), the holders of a majority of the outstanding
principal amount of the Other Obligations.
"Requisite Creditors" shall have the meaning provided in
Section 10.2 of this Agreement.
"Secondary Obligations" shall have the meaning provided in
Section 7.4(b) of this Agreement.
"Secured Creditors" shall have the meaning provided in the
recitals of this Agreement.
"Secured Debt Agreements" shall mean and include this
Agreement, the other Credit Documents and the Interest Rate Protection
Agreements and Other Hedging Agreements.
23
"Termination Date" shall have the meaning provided in Section
10.8 of this Agreement.
"Trade Secret Rights" shall have the meaning provided in
Section 5.1 of this Agreement.
"UCC" shall mean the Uniform Commercial Code as in effect
from time to time in the relevant jurisdiction.
ARTICLE X
MISCELLANEOUS
10.1. NOTICES. Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be deemed to have been duly given or made when delivered
to the party to which such notice, request, demand or other communication is
required or permitted to be given or made under this Agreement, addressed as
follows:
(a) if to any Assignor, at the address set forth
opposite such Assignor's signature below;
(b) if to the Collateral Agent, at:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attention: Andrew Keith
Tel. No.: (212) 250-8617
Fax. No.: (212) 250-7218
(c) if to any Lender Creditor, at such address as such Lender
Creditor shall have specified in the Credit Agreement;
(d) if to any Other Creditor, at such address as such Other
Creditor shall have specified in writing to each Assignor and the Collateral
Agent;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
10.2. WAIVER; AMENDMENT. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each Assignor directly effected
thereby and the Collateral Agent (with the written consent of the Required
Secured Creditors); PROVIDED, HOWEVER, that any change, waiver, modification or
variance affecting the rights and benefits of a single Class of Secured
Creditors (and not all Secured Creditors in a like or similar manner) shall
require the written consent of the Requisite Creditors of such affected Class.
For the purpose of this Agreement, the term "Class"
24
shall mean each class of Secured Creditors, I.E., whether (x) the Lender
Creditors as holders of the Credit Document Obligations or (y) the Other
Creditors as the holders of the Other Obligations. For the purpose of this
Agreement, the term "Requisite Creditors" of any Class shall mean each of (x)
with respect to the Credit Document Obligations, the Required Lenders and (y)
with respect to the Other Obligations, the holders of at least a majority
amount of all obligations outstanding from time to time under the respective
Interest Rate Protection Agreements or Other Hedging Agreements.
10.3. OBLIGATIONS ABSOLUTE. The obligations of each
Assignor hereunder shall remain in full force and effect without regard to,
and shall not be impaired by, (a) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or the like of such
Assignor; (b) any exercise or non-exercise, or any waiver of, any right,
remedy, power or privilege under or in respect of this Agreement or any other
Secured Debt Agreement; or (c) any amendment to or modification of any
Secured Debt Agreement or any security for any of the Obligations; whether or
not such Assignor shall have notice or knowledge of any of the foregoing.
10.4. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon each Assignor and its successors and assigns (although no
Assignor may assign its rights and obligations hereunder except in accordance
with the provisions of the Secured Debt Agreements) and shall inure to the
benefit of the Collateral Agent and the other Secured Creditors and their
respective successors and assigns. All agreements, statements,
representations and warranties made by each Assignor herein or in any
certificate or other instrument delivered by such Assignor or on its behalf
under this Agreement shall be considered to have been relied upon by the
Secured Creditors and shall survive the execution and delivery of this
Agreement and the other Secured Debt Agreements regardless of any
investigation made by the Secured Creditors or on their behalf.
10.5. HEADINGS DESCRIPTIVE. The headings of the several
sections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
10.6. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
10.7. ASSIGNOR'S DUTIES. It is expressly agreed, anything
herein contained to the contrary notwithstanding, that each Assignor shall
remain liable to perform all of the obligations, if any, assumed by it with
respect to the Collateral and the Collateral Agent shall not have any
obligations or liabilities with respect to any Collateral by reason of or
arising out of this Agreement, nor shall the Collateral Agent be required or
obligated in any manner to perform or fulfill any of the obligations of any
Assignor under or with respect to any Collateral.
10.8. TERMINATION; RELEASE. (a) After the Termination Date,
this Agreement shall terminate (provided that all indemnities set forth
herein including, without limitation, in
25
Section 8.1 hereof shall survive such termination) and the Collateral Agent,
at the request and expense of the respective Assignor, will promptly execute
and deliver to such Assignor a proper instrument or instruments (including
Uniform Commercial Code termination statements on form UCC-3) acknowledging
the satisfaction and termination of this Agreement, and will duly assign,
transfer and deliver to such Assignor (without recourse and without any
representation or warranty) such of the Collateral as may be in the
possession of the Collateral Agent and as has not theretofore been sold or
otherwise applied or released pursuant to this Agreement. As used in this
Agreement, "Termination Date" shall mean the date upon which the Total
Revolving Loan Commitment and all Interest Rate Protection Agreements or
Other Hedging Agreements, that constitute Guaranteed Obligations of the
Borrower, have been terminated, all Loans have been repaid in full, all
Letters of Credit have been terminated and all Obligations then owing have
been paid in full.
(b) In the event that any part of the Collateral is sold in
connection with a sale permitted by Section 9.02 of the Credit Agreement
(other than a sale to any Assignor or a Subsidiary thereof) or otherwise
released at the direction of the Required Secured Creditors or any Equipment
is financed as permitted by Sections 9.01(vii) and (viii) of the Credit
Agreement (to the extent that the lender thereof does not permit the
Collateral Agent to retain a junior Lien on such Equipment), such Collateral
will be sold or financed, as the case may be, free and clear of the Liens
created by this Agreement (and such Collateral shall automatically be
released from the Liens created by this Agreement) and the Collateral Agent,
at the request and expense of the relevant Assignor, will duly assign,
transfer and deliver to such Assignor (without recourse and without any
representation or warranty) such of the Collateral as is then being (or has
been) so sold or released and as may be in the possession of the Collateral
Agent and has not theretofore been released pursuant to this Agreement.
(c) At any time that an Assignor desires that the
Collateral Agent take any action to acknowledge or give effect to any release
of Collateral pursuant to the foregoing Section 10.8(a) or (b), such Assignor
shall deliver to the Collateral Agent a certificate signed by a principal
executive officer of such Assignor stating that the release of the respective
Collateral is permitted pursuant to Section 10.8(a) or (b).
10.9. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with each Assignor and the Collateral Agent.
10.10. SEVERABILITY. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
26
10.11. THE COLLATERAL AGENT. The Collateral Agent will hold
in accordance with this Agreement all items of the Collateral at any time
received under this Agreement. It is expressly understood and agreed that the
obligations of the Collateral Agent as holder of the Collateral and interests
therein and with respect to the disposition thereof, and otherwise under this
Agreement, are only those expressly set forth in this Agreement and in
Section 12 of the Credit Agreement. The Collateral Agent shall act hereunder
and thereunder on the terms and conditions set forth herein and in Section 12
of the Credit Agreement.
10.12. BENEFIT OF AGREEMENT. This Agreement shall be
binding upon the parties hereto and their respective successors and assigns
and shall inure to the benefit of and be enforceable by each of the parties
hereto and its successors and assigns.
10.13. ADDITIONAL ASSIGNORS. It is understood and agreed that
any Subsidiary of Holdings that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall
automatically become an Assignor hereunder by executing a counterpart hereof and
delivering the same to the Collateral Agent, at which time the Annexes to this
Agreement will be appropriately modified to reflect the Collateral then owned by
such additional Assignor.
* * *
27
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
ADDRESS:
2777 Summer Street INFORMATION HOLDINGS, INC.,
Suite 209 as an Assignor
Stamford, CT 06905
Attn: Vincent Chippari
Telephone No.: (203) 961-9208
Telecopier No.: (203) 961-1431 By
--------------------------
Title:
c/o Information Holdings, Inc. WARBURG, PINCUS INFORMATION
2777 Summer Street, Suite 209 VENTURES, INC.,
Stamford, CT 06905 as an Assignor
Attn: Vincent Chippari
Telephone No.: (203) 961-9208
Telecopier No.: (203) 961-1431 By
--------------------------
Title:
2777 Summer Street
Suite 209 INFORMATION VENTURES, L.L.C.,
Stamford, CT 06905 as an Assignor
Attn: Vincent Chippari
Telephone No.: (203) 961-9208
Telecopier No.: (203) 961-1431 By
--------------------------
Title:
c/o Information Holdings, Inc. CRC PRESS, L.L.C.,
2777 Summer Street as an Assignor
Suite 209
Stamford, CT 06905
Attn: Vincent Chippari By
--------------------------
Telephone No.: (203) 961-9208 Title:
Telecopier No.: (203) 961-1431
28
c/o Information Holdings, Inc. MICROPATENT, L.L.C.,
2777 Summer Street as an Assignor
Suite 209
Stamford, CT 06905
Attn: Vincent Chippari By
--------------------------
Telephone No.: (203) 961-9208 Title:
Telecopier No.: (203) 961-1431
c/o Information Holdings, Inc. MASTER DATA CENTER, INC.,
2777 Summer Street as an Assignor
Suite 209
Stamford, CT 06905
Attn: Vincent Chippari By
--------------------------
Telephone No.: (203) 961-9208 Title:
Telecopier No.: (203) 961-1431
c/o Information Holdings, Inc. CRC PRESS UK, L.L.C.,
2777 Summer Street as an Assignor
Suite 209
Stamford, CT 06905
Attn: Vincent Chippari By
--------------------------
Telephone No.: (203) 961-9208 Title:
Telecopier No.: (203) 961-1431
c/o Information Holdings, Inc. OPTIPAT, INC.,
2777 Summer Street as an Assignor
Suite 209
Stamford, CT 06905
Attn: Vincent Chippari By
--------------------------
Telephone No.: (203) 961-9208 Title:
Telecopier No.: (203) 961-1431
29
c/o Information Holdings, Inc. MICROPATENT UK L.L.C.,
2777 Summer Street as an Assignor
Suite 209
Stamford, CT 06905
Attn: Vincent Chippari By
--------------------------
Telephone No.: (203) 961-9208 Title:
Telecopier No.: (203) 961-1431
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Collateral Agent
By
-------------------
Title:
30
ANNEX A
to
SECURITY
AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE OFFICES
AND OTHER RECORD LOCATIONS
I. Chief Executive Offices
II. Other Record Locations
ANNEX B
to
SECURITY
AGREEMENT
SCHEDULE OF INVENTORY AND EQUIPMENT LOCATIONS
ASSIGNOR LOCATION
ANNEX C
to
SECURITY
AGREEMENT
SCHEDULE OF TRADE AND FICTITIOUS NAMES
ANNEX D
to
SECURITY
AGREEMENT
SCHEDULE OF MARKS
TRADEMARK SERIAL NO. FILE DATE
ANNEX E
to
SECURITY
AGREEMENT
SCHEDULE OF PATENTS
ANNEX F
to
SECURITY
AGREEMENT
SCHEDULE OF COPYRIGHTS
ANNEX G
to
SECURITY
AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS AND PATENTS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency
of which are hereby acknowledged, [Name of Grantor], a __________ corporation
(the "Grantor") with principal offices at ____________________________, hereby
assigns and grants to Bankers Trust Company, as Collateral Agent, with principal
offices at 130 Liberty Street, New York, New York 10006 (the "Grantee"), a
security interest in (i) all of the Grantor's right, title and interest in and
to the United States trademarks, trademark registrations and trademark
applications (except for "intent to use" applications for trademark or service
mark registration filed pursuant to Section 1(b) of the Lanham Act, unless and
until an Amendment to Allege Use or a Statement of Use under Sections 1(c) and
1(d) of said Act has been filed) (the "Marks") set forth on Schedule A attached
hereto, (ii) all of the Grantor's rights, title and interest in and to the
United States patents (the "Patents") set forth on Schedule B attached hereto,
in each case together with (iii) all Proceeds (as such term is defined in the
Security Agreement referred to below) and products of the Marks and Patents,
(iv) the goodwill of the businesses with which the Marks are associated and (v)
all causes of action arising prior to or after the date hereof for infringement
of any of the Marks and Patents or unfair competition regarding the same.
THIS GRANT is made to secure the satisfactory performance and
payment of all the Obligations of the Grantor, as such term is defined in the
Security Agreement among the Grantor, the other assignors from time to time
party thereto and the Grantee, dated as of September 24, 1999 (as amended from
time to time, the "Security Agreement"). Upon the occurrence of the Termination
Date (as defined in the Security Agreement), the Grantee shall,
upon such satisfaction, execute, acknowledge, and deliver to the Grantor an
instrument in writing releasing the security interest in the Marks and Patents
acquired under this Grant.
This Grant has been granted in conjunction with the security
interest granted to the Grantee under the Security Agreement. The rights and
remedies of the Grantee with respect to the security interest granted herein are
without prejudice to, and are in addition to those set forth in the Security
Agreement, all terms and provisions of which are incorporated herein by
reference. In the event that any provisions of this Grant are deemed to conflict
with the Security Agreement, the provisions of the Security Agreement shall
govern.
ANNEX G
Page 3
IN WITNESS WHEREOF, the undersigned have executed this Grant as of the
____ day of _________, ____.
[NAME OF GRANTOR], Grantor
By:
-------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Collateral Agent, Grantee
By:
-------------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me personally came
________ _________________ who, being by me duly sworn, did state as follows:
that [s]he is _______________ of [Name of Grantor], that [s]he is authorized to
execute the foregoing Grant on behalf of said corporation and that [s]he did so
by authority of the Board of Directors of said corporation.
-------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me personally came
________ _____________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of Bankers Trust Company that [s]he is
authorized to execute the foregoing Grant on behalf of said corporation and that
[s]he did so by authority of the Board of Directors of said corporation.
----------------------------
Notary Public
SCHEDULE A
MARK REG. NO. REG. DATE
SCHEDULE B
PATENT PATENT NO. ISSUE DATE
ANNEX H
to
SECURITY
AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
WHEREAS, [Name of Grantor], a _______________ corporation (the
"Grantor"), having its chief executive office at ______________, _____________,
is the owner of all right, title and interest in and to the United States
copyrights and associated United States copyright registrations and
applications for registration set forth in Schedule A attached hereto;
WHEREAS, BANKERS TRUST COMPANY, as Collateral Agent, having its
principal offices at 130 Liberty Street, New York, New York 10006 (the
"Grantee"), desires to acquire a security interest in said copyrights and
copyright registrations and applications therefor; and
WHEREAS, the Grantor is willing to assign to the Grantee, and to
grant to the Grantee a security interest in and lien upon the copyrights and
copyright registrations and applications therefor described above.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and subject to the terms and conditions of the
Security Agreement, dated as of September 24, 1999, made by the Grantor, the
other assignors from time to time party thereto and the Grantee (as amended
from time to time, the "Security Agreement"), the Grantor hereby assigns and
grants to the Grantee a security interest in the copyrights and copyright
registrations and applications therefor set forth in Schedule A attached
hereto.
This Grant has been granted in conjunction with the security
interest granted to the Grantee under the Security Agreement. The rights and
remedies of the Grantee with respect to the security interest granted herein
are without prejudice to, and are in addition to those set forth in the
Security Agreement, all terms and provisions of which are incorporated herein
by reference. In the event that any provisions of this Grant are deemed to
conflict with the Security Agreement, the provisions of the Security
Agreement shall govern.
ANNEX H
Page 2
Executed at New York, New York, the __ day of _________, ____.
[NAME OF GRANTOR], as Grantor
By:
---------------------------------
Name:
Title:
BANKERS TRUST COMANY,
as Collateral Agent, Grantee
By:
---------------------------------
Name:
Title:
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On this __ day of _________, ____, before me personally came
___________ _______________, who being duly sworn, did depose and say that [s]he
is ___________________ of [Name of Grantor], that [s]he is authorized to execute
the foregoing Grant on behalf of said corporation and that [s]he did so by
authority of the Board of Directors of said corporation.
-------------------------
Notary Public
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me personally came
________ _____________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of Bankers Trust Company that [s]he is
authorized to execute the foregoing Grant on behalf of said corporation and that
[s]he did so by authority of the Board of Directors of said corporation.
----------------------------
Notary Public
SCHEDULE A
U.S. COPYRIGHTS
REGISTRATION PUBLICATION
NUMBERS DATE COPYRIGHT TITLE