EXHIBIT 4.9
SECURITY AGREEMENT
among
infoUSA INC.,
CERTAIN OF ITS SUBSIDIARIES
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as COLLATERAL AGENT
--------------------------------
Dated as of March 25, 2004
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TABLE OF CONTENTS
PAGE
ARTICLE I SECURITY INTERESTS................................................................................... 2
1.1 Grant of Security Interests................................................................... 2
1.2 Power of Attorney............................................................................. 3
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS................................................... 3
2.1 Necessary Filings............................................................................. 3
2.2 No Liens...................................................................................... 3
2.3 Other Financing Statements.................................................................... 4
2.4 Chief Executive Office, Record Locations...................................................... 4
2.5 Jurisdiction of Organization.................................................................. 4
2.6 Location of Inventory and Equipment........................................................... 4
2.7 Recourse...................................................................................... 5
2.8 Names, Trade Names; Change of Name............................................................ 5
2.9 Investment Related Property................................................................... 5
2.10 Non-Assignable Collateral..................................................................... 5
ARTICLE III SPECIAL PROVISIONS CONCERNING RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER............. 6
3.1 Additional Representations and Warranties..................................................... 6
3.2 Maintenance of Records........................................................................ 6
3.3 Direction to Account Debtors; Contracting Parties; etc........................................ 6
3.4 Modification of Terms; etc.................................................................... 7
3.5 Collection.................................................................................... 7
3.6 Instruments................................................................................... 7
3.7 Assignors Remain Liable Under Receivables..................................................... 7
3.8 Assignors Remain Liable Under Contracts....................................................... 8
3.9 Changes of Name, Jurisdiction or Organization, etc............................................ 8
3.10 Purchase Money Security Interests............................................................. 8
3.11 Protection of the Collateral Agent's Security................................................. 8
3.12 Further Actions............................................................................... 9
ARTICLE IV SPECIAL PROVISIONS CONCERNING TRADEMARKS............................................................ 9
4.1 Additional Representations and Warranties..................................................... 9
4.2 Licenses and Assignments...................................................................... 9
4.3 Infringements................................................................................. 9
4.4 Preservation of Marks......................................................................... 10
4.5 Maintenance of Registration................................................................... 10
4.6 Future Registered Marks....................................................................... 10
4.7 Remedies...................................................................................... 10
ARTICLE V SPECIAL PROVISIONS CONCERNING PATENTS, COPYRIGHTS AND TRADE SECRETS.................................. 11
5.1 Additional Representations and Warranties..................................................... 11
5.2 Licenses and Assignments...................................................................... 11
5.3 Infringements................................................................................. 11
5.4 Maintenance of Patents or Copyright........................................................... 11
5.5 Prosecution of Patent Applications............................................................ 12
5.6 Future Patents and Copyrights................................................................. 12
5.7 Remedies...................................................................................... 12
ARTICLE VI PROVISIONS CONCERNING ALL COLLATERAL................................................................ 12
6.1 Protection of Collateral Agent's Security..................................................... 13
6.2 Warehouse Receipts Non-negotiable............................................................. 13
6.3 Further Actions............................................................................... 13
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6.4 Financing Statements.......................................................................... 13
6.5 Authorization to File......................................................................... 13
ARTICLE VII REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT....................................................... 14
7.1 Remedies; Obtaining the Collateral Upon Default............................................... 14
7.2 Remedies; Disposition of the Collateral....................................................... 15
7.3 Waiver of Claims.............................................................................. 16
7.4 Application of Proceeds....................................................................... 17
7.5 Remedies Cumulative........................................................................... 19
7.6 Discontinuance of Proceedings................................................................. 19
ARTICLE VIII INDEMNITY......................................................................................... 20
8.1 Indemnity..................................................................................... 20
8.2 Indemnity Obligations Secured by Collateral; Survival......................................... 21
ARTICLE IX DEFINITIONS......................................................................................... 21
ARTICLE X MISCELLANEOUS........................................................................................ 27
10.1 Notices....................................................................................... 27
10.2 Waiver; Amendment............................................................................. 28
10.3 Obligations Absolute.......................................................................... 28
10.4 Successors and Assigns........................................................................ 29
10.5 Headings Descriptive.......................................................................... 29
10.6 Governing Law................................................................................. 29
10.7 Assignor's Duties............................................................................. 29
10.8 Termination; Release.......................................................................... 29
10.9 Counterparts.................................................................................. 30
10.10 Severability.................................................................................. 30
10.11 The Collateral Agent.......................................................................... 30
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10.12 Benefit of Agreement.......................................................................... 30
10.13 Additional Assignors.......................................................................... 31
ANNEX A Schedule of Names and Jurisdictions of Organization
ANNEX B Schedule of Chief Executive Offices/Record Locations
ANNEX C Schedule of Inventory and Equipment Location
ANNEX D Schedule of Trade and Fictitious Names
ANNEX E Schedule of Marks
ANNEX F Schedule of Patents
ANNEX G Schedule of Copyrights
ANNEX H Investment Related Property
ANNEX I Form of Grant of Security Interest in United States Trademarks and
Patents
ANNEX J Form of Grant of Security Interest in United States Copyrights
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THIS SECURITY AGREEMENT, dated as of March 25, 2004, is 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 Wells Fargo Bank, National Association, as
Collateral Agent together with any successor 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.
WHEREAS, infoUSA Inc. (the "Borrower"), the financial
institutions from time to time party thereto in the capacity of a lender (in
such capacity, the "Lenders"), and Wells Fargo Bank, National Association, as
administrative agent (together with any successor administrative agent, the
"Administrative Agent"), have entered into a Credit Agreement, dated as of March
25, 2004, 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 Administrative Agent, the Issuing Lender 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 Subsidiaries Guaranty, each
Subsidiary Guarantor has jointly and severally guaranteed 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 pledge, hypothecate 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 (all of the following being collectively called, the
"Collateral"): all Accounts, all Chattel Paper, all Contracts, together
with all Contract Rights arising thereunder, all Deposit Accounts
(including any and all Cash Collateral Accounts) and all monies,
securities, instruments and other investments deposited or required to
be deposited in such Deposit Accounts, all Documents, all Equipment,
all General Intangibles, all Goods, all Instruments, all Insurance, all
Intellectual Property, all Inventory, all Investment Related Property,
all Letter of Credit Rights, all letters of credit, 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, all
Money, all Patents and Copyrights and all reissues, renewals or
extensions thereof, all Receivables, 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, all Supporting Obligations (to the extent not
otherwise included above), together with (i) all substitutions and
replacements for and products of any of the foregoing; (ii) in the case
of all Goods, all accessions; (iii) all accessories, attachments,
parts, equipment and repairs now or hereafter attached or affixed to or
used in connection with any Goods; (iv) all warehouse receipts, bills
of lading and other documents of title now or hereafter covering such
Goods; and (v) Proceeds of any and all of the foregoing.
(b) Notwithstanding anything herein to the contrary, in
no event shall the Collateral include and no Assignor shall be deemed
to have granted a security interest in, any of Assignor's right, title
or interest in (i) any Intellectual Property (collectively, the
"Non-Assignable Intellectual Property") to the extent that the grant of
such security interest would constitute or result in the abandonment or
invalidation thereof or the unenforceability of any right, title or
interest of any Assignor therein; (ii) any license, contract or
agreement to the extent that the grant of such security interest is
prohibited by or would constitute a default under or a termination of,
such license, contract or agreement (each, a "Non-assignable
Contract"), and the terms restricting such grant are enforceable under
applicable law (including UCC section 9-406), it being understood that
each Assignor hereby agrees to use all reasonable efforts to obtain all
requisite consent to enable Assignor to grant a security interest in
such asset and, in any event, immediately upon the ineffectiveness,
lapse or termination of any such restriction, the Collateral shall
include, and Assignor shall be deemed to have granted a security
interest in, all such rights and interests as if such restriction had
never been in effect; or (iii) any of the
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outstanding capital stock of a Foreign Subsidiary in excess of 65% of
the voting power of all classes of capital stock of such entitled to
vote.
(c) 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.
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. Upon (i) the filing by the
Collateral Agent of appropriate financing statements in the applicable filing
offices in the jurisdictions set forth in Annex A, and (ii) the filing of the
appropriate Grants of Security Interest in the form of Annex I or J attached
hereto in the United States Patent and Trademark Office or in the United States
Copyright Office, as applicable, 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 will have been accomplished and the security interest granted to the
Collateral Agent pursuant to this Agreement in and to the Collateral will create
a perfected security interest therein prior to the rights of all other Persons
therein and subject to no other Liens (other than Permitted Liens) and will be
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 owns the Collateral purported
to be owned by it and otherwise has the rights it purports to have in each item
of Collateral and, as to all Collateral whether now existing or hereafter
acquired, will continue to own or have such rights in each item of the
Collateral, in each case free and clear of any and all Liens, rights or claims
of all other Persons (other than Permitted Liens). Such Assignor shall defend
the Collateral against all
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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, Record Locations. The chief
executive office of such Assignor is located at the address indicated on Annex B
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 B 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
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, 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.
2.5 Jurisdiction of Organization. The full legal name and
jurisdiction of organization of such Assignor is as set forth on Annex A. If the
chief executive office or sole place of business of any Assignor is located
outside of the United States, then Annex A shall also include the address of the
major executive office in the United States, if any, of Assignor.
2.6 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 C 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 C
hereto, or such new location as such Assignor may establish in accordance with
the last sentence of this Section 2.6. 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 to do so,
clearly describing such new location and providing such other information in
connection therewith as the Collateral Agent may reasonably
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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.
2.7 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.
2.8 Names, Trade Names; Change of Name. No Assignor has
or operates in any jurisdiction under, or in the preceding one year 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 D 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 D hereto for such Assignor and
new names established in accordance with the last sentence of this Section 2.8.
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 to do so, 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.
2.9 Investment Related Property. Annex H sets forth a
complete list of all Investment Related Property, including all Deposit
Accounts, Securities Accounts and Commodities Accounts. Assignor has taken all
actions necessary or desirable to: (a) establish the Collateral Agent's
"control" (within the meaning of Section 9-106 of the Minnesota UCC) over any
portion of the Investment Related Property constituting Certificated Securities,
Uncertificated Securities, Securities Accounts, Securities Entitlements or
Commodities Accounts; (b) establish the Collateral Agent's "control" (within the
meaning of Section 9-104 of the Minnesota UCC) over all Deposit Accounts
(including any and all Cash Collateral Accounts); and (c) to deliver all
Instruments to the Collateral Agent. Assignor will not create or permit to exist
any Securities Account or Deposit Account unless such Assignor shall have
executed and delivered to the Collateral Agent a Control Agreement in respect of
such Securities Account or Deposit Account, as the case may be. Such Assignor
will not create or permit to exist any Commodities Account unless the Required
Lenders shall otherwise consent.
2.10 Non-Assignable Collateral. Neither the Non-Assignable
Intellectual Property nor the Non-Assignable Contracts are individually or
collectively material to the Borrower and its Subsidiaries taken as a whole.
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ARTICLE III
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 genuine and what they purport to be, and
that all papers and documents (if any) relating thereto (i) will, to the
knowledge of such Assignor, represent the genuine legal, valid and binding
obligation of the account debtor evidencing indebtedness unpaid and owed by the
respective account debtor arising out of the performance of labor or services or
the sale or lease and delivery of the inventory, materials, equipment or
merchandise listed therein, or both, and (ii) will, to the knowledge of such
Assignor, be in compliance and will conform in all material respects with all
applicable federal, state and local laws and applicable laws of any relevant
foreign jurisdiction.
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 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 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, 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
one or more Cash Collateral Accounts (as the Collateral Agent shall so direct),
(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, upon the occurrence and during the
continuance of an Event of Default, apply any or all amounts then in, or
thereafter deposited in, the Cash Collateral
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Accounts which application shall be effected in the manner provided in Section
7.4 of this Agreement. The reasonable costs and expenses (including reasonable
attorneys' fees) of collection, whether incurred by 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.
3.4 Modification of Terms; etc. Except in accordance with
such Assignor's ordinary course of business and consistent with 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. No Assignor will do
anything 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 Receivables or obligor under any Contract,
as and when due (including, without limitation, amounts which are delinquent,
such amounts to be collected in accordance with generally accepted lawful
collection procedures) any and all amounts owing under or on account of such
Receivable or Contract, and apply forthwith upon receipt thereof all such
amounts as are so collected to the outstanding balance of such Receivable or
under such Contract, except as otherwise directed by the Collateral Agent after
the occurrence and during the continuation 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. If any Assignor owns or acquires any
Instrument with a value of $50,000 or more constituting Collateral (other than
checks and other payment instruments received and collected in the ordinary
course of business), 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.
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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 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 Changes of Name, Jurisdiction or Organization, etc.
No Assignor shall change its name, form of organization (from that of a
corporation) or jurisdiction of organization, unless it shall have (a) given the
Collateral Agent not less than 30 days' prior written notice thereof, (b)
provided the Collateral Agent with such other information in connection
therewith as the Collateral Agent may reasonably request, and (c) taken all
actions necessary or advisable to maintain the continuous validity, perfection
and the same or better priority of the Collateral Agent's security interest in
the Collateral intended to be granted and agreed to hereby.
3.10 Purchase Money Security Interests. If the Collateral
Agent or any Secured Creditor gives value as defined in Section 9-103 of the UCC
to enable Assignor to acquire rights in or the use of any Collateral, it shall
use such value for such purposes and Assignor further agrees that repayment of
any Obligation shall apply on a "first-in, first-out" basis so that the portion
of the value used to acquire rights in any Collateral shall be paid in the
chronological order Assignor acquired rights therein.
3.11 Protection of the Collateral Agent's Security. Each
Assignor will do nothing to impair the rights of the Secured Creditors in the
Collateral. Each Assignor assumes all liability and responsibility in connection
with the Collateral owned by it and the liability of each Assignor to pay the
Obligations shall in no way be affected or diminished by reason of the
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fact that such Collateral may be lost, destroyed, stolen, damaged or for any
reason whatsoever unavailable to it.
3.12 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.
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 E hereto for
such Assignor and that said listed Marks include all United States registered
marks and applications for United States registered marks in the United States
Patent and Trademark Office that such Assignor owns or uses in connection with
its business as of the date hereof (or intends to use in the case of an Intent
to Use application for trademark registration). Each Assignor represents and
warrants that it owns, is licensed to use or otherwise has the right to use, all
Marks that it uses. Each Assignor further warrants that it has no knowledge of
any material third party claim received by it that any aspect of such Assignor's
present or contemplated business operations infringes or will infringe any
trademark, service mark or trade name of any other Person. 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 E hereto and that said registrations are valid, subsisting, have not been
canceled 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,
or is not aware that there is any reason that any of said applications will not
pass to registration. 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, 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 may be infringing or diluting or otherwise violating
any of such Assignor's rights in and to any significant Mark, or with respect to
any party claiming that such Assignor's use of any Mark violates in any material
respect any
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property right of that party. Each Assignor further agrees to prosecute
diligently in accordance with reasonable business practices any Person
infringing any significant Mark.
4.4 Preservation of Marks. Each Assignor agrees to use or
license (along with the associated goodwill) the use of its 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 including, without limitation,
maintaining the quality of all associated products or services and assuring the
use of proper statutory notice of such Marks in association with each associated
product or service.
4.5 Maintenance of Registration. Each Assignor shall, at
its own expense, diligently process all documents required to maintain trademark
registrations and/or to prosecute pending applications for registration,
including but not limited to affidavits of use and applications for renewals of
registration in the United States Patent and Trademark Office for all of its
significant registered Marks or applications for registration, and shall pay all
fees and disbursements in connection therewith and shall not abandon any such
application for registration of a Mark, 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 (other
than with respect to registrations and applications deemed by such Assignor to
be no longer desirable in the conduct of its business). Each Assignor shall, at
its own expense, vigorously defend the validity and enforceability of any Mark
or registration of a Mark in any proceeding or litigation.
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 a grant of a security interest in such Mark, to
the Collateral Agent and at the expense of such Assignor, confirming the grant
of a security interest in such Mark to the Collateral Agent hereunder, the form
of such security to be substantially in the form of Annex I hereto 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, and until such Event of Default is cured or waived in writing to the
written satisfaction of the Required Lenders, the Collateral Agent may, with the
consent of the Required Lenders, and shall, at the request of the Required
Lenders, by written notice to the relevant Assignor, take any or all of the
following actions: (i) declare and assign 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
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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 the right to use (i) all Trade Secret Rights, (ii) the Patents
listed in Annex F hereto for such Assignor and that said Patents constitute all
the United States or non-United States patents and applications for United
States or non-United States patents that such Assignor owns as of the date
hereof and (iii) the Copyrights listed in Annex G hereto for such Assignor and
that said Copyrights constitute all the United States copyrights registered with
the United States Copyright Office and applications to register 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 copyright of any other Person or such Assignor has
misappropriated any trade secret or proprietary information. 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
or the United States Copyright Office in order to effect an absolute assignment
of all right, title and interest in each Patent, including the right to past
damages and to record the same.
5.2 Licenses and Assignments. Except as otherwise
permitted by the Secured Debt Agreements, 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 or other violation of
such Assignor's rights in any significant Patent or significant Copyright or to
any claim that the practice of any Patent or use of any Copyright violates any
property right of a third party, or with respect to any misappropriation of any
Trade Secret Right or any claim that practice of any Trade Secret Right violates
any property right of a third party. Each Assignor further agrees, absent
direction of the Collateral Agent to the contrary, to diligently prosecute any
Person infringing any significant Patent or significant Copyright or any Person
misappropriating any significant Trade Secret Right in accordance with
reasonable business practices.
5.4 Maintenance of Patents or Copyright. At its own
expense, each Assignor shall make timely payment of all post-issuance fees and
take all actions necessary to maintain in force its rights under each Patent or
Copyright, absent prior written consent of the Collateral Agent, except to the
extent that such Assignor has determined in its reasonable business
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judgment that the maintenance of such Patent or Copyright is no longer necessary
in the conduct of its business. Assignor shall assure that proper statutory
notice is used in conjunction with all products or services covered by any
Patent or Copyright. Each Assignor shall, at its own expense, vigorously defend
the validity and enforceability of any Patent in any proceeding or litigation.
5.5 Prosecution of Patent Applications. At its own
expense, each Assignor shall diligently prosecute all significant applications
for (i) United States Patents listed in Annex F hereto, (ii) Copyrights listed
on Annex G hereto, and (iii) all after-acquired or filed patent or copyright
applications 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 to the extent that such
Assignor has determined in its reasonable business judgment that such
application is no longer necessary in the conduct of its business.
5.6 Future 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 a grant of a
security interest in such Patent or Copyright, as the case may be, to the
Collateral Agent and at the expense of such Assignor, confirming the grant of a
security interest, the form of such grant of a security interest to be
substantially in the form of Annex I or J hereto, as appropriate, 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, and until such Event of Default is cured or waived in writing to the
written satisfaction of the Required Lenders, the Collateral Agent may, with the
consent of the Required Lenders, and shall, at the request of the Required
Lenders, by written notice to the relevant Assignor, take any or all of the
following actions: (i) declare and assign the entire right, title, and interest
of such Assignor in each of the Patents and Copyrights vested in the Collateral
Agent, including the right to sue for past damages, for the benefit of the
Secured Creditors, in which event such right, title, and interest and right to
sue for past damages 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 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
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6.1 Protection of Collateral Agent's Security. Each
Assignor will do nothing to impair the rights of the Collateral Agent in the
Collateral. 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. To the extent
practicable, 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 Further Actions. Each Assignor will, at its own
expense and upon the reasonable request of the Collateral Agent, make, execute,
endorse, acknowledge, file and/or deliver to the Collateral Agent from time to
time such lists, descriptions and designations of its Collateral, warehouse
receipts, receipts in the nature of warehouse receipts, bills of lading,
documents of title, vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, certificates, reports
and other assurances or instruments and take such further steps relating to the
Collateral and other property or rights covered by the security interest hereby
granted, which the Collateral Agent deems reasonably appropriate or advisable to
perfect, preserve or protect its security interest in the Collateral.
6.4 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 reasonably 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 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.
6.5 Authorization to File. Each Assignor hereby
authorizes the Collateral Agent to file a record or records (as defined in
Article 9 of the UCC), including, without limitation, financing statements, in
all jurisdictions and with all filing offices as the Collateral Agent may
determine, in its sole discretion, are necessary or advisable to perfect the
security interest granted to the Collateral Agent herein. Such financing
statements may describe the Collateral in the same manner as described herein or
may contain an indication or description of
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collateral that describes such property in any other manner as the Collateral
Agent may determine, in its sole discretion, is necessary, advisable or prudent
to ensure the perfection of the security interest in the Collateral granted to
the Collateral Agent herein, including, without limitation, describing such
property as "all assets" or "all personal property," and such financing
statements may be filed prior to the date of this Agreement.
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 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, each Assignor agrees that, if an Event of Default shall have
occurred and be continuing, and until such Event of Default is cured or waived
in writing to the written satisfaction of the Required Lenders, the Collateral
Agent may, with the consent of the Required Lenders, and shall, at the request
of the Required Lenders, by written notice to the relevant Assignor, take any or
all of the following actions,:
(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(s) 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) personally, or by agents or attorneys,
immediately take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to
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deliver the same to the Collateral Agent at any reasonable place or
places 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 designated by the
Collateral Agent and there delivered to the
Collateral Agent;
(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, Copyrights or
Proprietary Information 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 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 which 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
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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 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 (as
determined by a court of competent jurisdiction in a final and
non-appealable decision);
(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.
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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
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 other
Security Document to be applied in accordance with the provisions of
this Agreement, the Pledge or Collateral Agent 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 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, premium, fees and
interest on, all Loans, all Unpaid Drawings theretofore made (together
with all
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interest accrued thereon), the aggregate Stated Amount of all Letters
of Credit issued or deemed issued under the Credit Agreement and all
Fees and (ii) in the case of the Other Obligations, all amounts due
under such Interest Rate Protection Agreements or Other Hedging
Agreements (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.
(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,
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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 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, 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.
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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
and agents (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 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, 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 willful misconduct of such Indemnitee (a) determined by a
court of competent jurisdiction in a final and non-appealable
decision). 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
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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, 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 which is permissible under
applicable law.
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,
and Loans made under the Credit Agreement, the termination of all Interest Rate
Protection Agreements, Other Hedging Agreements and 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.
"Account" means an "account" as defined in the Minnesota UCC.
"Administrative Agent" has the meaning provided in the
recitals of this Agreement.
"Agreement" means this Security Agreement as the same may be
modified, supplemented or amended from time to time in accordance with its
terms.
"Assignor" has the meaning provided in the first paragraph of
this Agreement.
"Borrower" has the meaning provided in the recitals of this
Agreement.
"Cash Collateral Account" means a Deposit Account which is (i)
maintained with, and in the sole dominion and control of, the Collateral Agent
for the benefit of the Secured Creditors, and (ii) is the subject of a Control
Agreement.
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"Certificated Security" means a "certificated security" as
defined in the Minnesota UCC.
"Chattel Paper" means "chattel paper" as defined in the
Minnesota UCC.
"Class" has the meaning provided in Section 10.2 of this
Agreement.
"Collateral" has the meaning provided in Section 1.1(a) of
this Agreement.
"Collateral Agent" has the meaning provided in the first
paragraph of this Agreement.
"Commodities Accounts" means a "commodity account" as defined
in the Minnesota UCC. The term "Commodities Accounts" shall include, without
limitation, all of the accounts listed on Annex H under the heading "Commodities
Accounts" as such annex may be amended or supplemented from time to time.
"Contract Rights" means 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" means all contracts between any Assignor and one
or more additional parties (including, without limitation, any Interest Rate
Protection Agreements, Other Hedging Agreements, and any partnership agreements,
joint venture agreements and limited liability company agreements), but
excluding any contract to the extent that (but only as long as) the terms
thereof prohibit the assignment of, or granting a security interest in, such
contract (it being understood and agreed, however, (i) 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 and (ii) such excluded contract shall otherwise be subject to the
security interests created by this Agreement upon receiving any necessary
approvals or waivers permitting the assignment thereof).
"Control Agreement" means, in the case of a Securities
Account, an agreement substantially in the form of Annex H to the Pledge
Agreement, and in the case of a Deposit Account, an agreement substantially in
the form of Annex I to the Pledge Agreement.
"Copyrights" means any United States or foreign copyright now
or hereafter 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" has the meaning provided in the recitals of
this Agreement.
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"Credit Document Obligations" has the meaning provided in the
definition of "Obligations" in this Article IX.
"Default" means any event which, with notice or lapse of time,
or both, would constitute an Event of Default.
"Deposit Account" means a "deposit account" as defined in the
Minnesota UCC. The term "Deposit Accounts" shall include, without limitation,
all of the accounts listed on Annex H under the heading "Deposit Accounts" as
such schedule may be amended or supplemented from time to time.
"Document" means a "document" as defined in the Minnesota UCC.
"Equipment" means any "equipment," as such term is defined in
the Minnesota UCC, 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" means 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 Intangible" means a "general intangible" as defined
in the Minnesota UCC. The term "General Intangibles" shall include, without
limitation, all interest rate or currency protection or hedging arrangements,
all tax refunds, all licenses, permits, concessions and authorizations, all
Contracts, all Intellectual Property, all Payment Intangibles, all partnership
interests, and all limited liability company and membership interests (in each
case, regardless of whether characterized as general intangibles under the UCC).
"Goods" means "goods" as defined in the Minnesota UCC.
"Indemnitee" has the meaning provided in Section 8.1 of this
Agreement.
"Instrument" means an "instrument" as defined in the Minnesota
UCC.
"Insurance" means (i) all insurance policies covering all
Collateral (regardless of whether the Collateral Agent is the loss payee) and
(ii) all key-man life insurance policies.
"Intellectual Property" means all Patents, Copyrights and
Marks of the Assignors or any of them.
"Inventory" means "inventory" as defined in the Minnesota UCC.
"Investment Property" means "investment property" as defined
in the Minnesota UCC.
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"Investment Related Property" means Investment Property, and
without limitation, shall include all Deposit Accounts (including the Collateral
Account(s)), all Securities Accounts, and all Commodities Accounts (in each case
regardless of whether classified as Investment Property under the UCC).
"Lender Creditors" has the meaning provided in the recitals of
this Agreement.
"Lenders" has the meaning provided in the recitals of this
Agreement.
"Letter of Credit Right" means a "Letter of Credit Right" as
defined in the Minnesota UCC.
"Liens" means 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" means 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 or application for registration of any
trademarks and service marks now held or hereafter acquired by an Assignor,
which are registered in the United States Patent and Trademark Office or the
equivalent thereof in any state of the United States or any foreign equivalent
office; as well as any unregistered marks used by any Assignor and any trade
dress including logos, designs, company names, business names, fictitious
business names and other business identifiers used by any Assignor, excluding,
however, from the term "Marks" any United States Intent-to-Use trademark
application prior to the filing and acceptance of a Statement of Use or an
Amendment to allege use in connection therewith to the extent that a valid
security interest may not be taken in such an Intent-to-Use trademark
application under applicable law.
"Minnesota UCC" means the UCC as in effect in Minnesota on the
date hereof.
"Money" means Money as defined in the Minnesota UCC.
"Non-Assignable Contract" - see Section 1(b) of this
Agreement..
"Non-Assignable Intellectual Property" - see Section 1(b) of
this Agreement.
"Obligations" means (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 Assignor which is a Subsidiary Guarantor,
all such obligations and indebtedness of such Assignor under the Subsidiaries
Guaranty) and the due performance and compliance by such Assignor with all of
the terms, conditions and agreements contained in the Credit Agreement and in
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
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called the "Credit Document Obligations"); (ii) the full and prompt payment when
due (whether at the stated maturity, by acceleration or otherwise) of all
obligations and liabilities owing by such Assignor to the Other Creditors under,
or with respect to (including, in the case of each Assignor which is a
Subsidiary Guarantor, by reason of the Subsidiaries Guaranty), 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 (all such obligations and
liabilities described in this clause (ii) being herein collectively called the
"Other Obligations"); (iii) any and all sums advanced by the Collateral Agent 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 Collateral Agent 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; 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" has the meaning provided in the recitals of
this Agreement.
"Other Obligations" has the meaning provided in the definition
of "Obligations" in this Article IX.
"Patents" means all right, title and interest in and to any
United States or non-United States patent to which any Assignor now or hereafter
has title and any divisions continuations, reissues or reexaminations thereof,
as well as any application for a patent now or hereafter made or acquired by any
Assignor.
"Payment Intangible" means a "payment intangible" as defined
in the Minnesota UCC.
"Permits" means, 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" has the meaning provided in Section
7.4(b) of this Agreement.
"Pro Rata Share" has the meaning provided in Section 7.4(b) of
this Agreement.
"Proceeds" means "proceeds" as defined in the Minnesota UCC.
Proceeds 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 respect to any of
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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.
"Proprietary Information" means all information and know-how
worldwide, including, without limitation, data collections; technical data;
manufacturing data; research and development data; data relating to
compositions, processes and formulations, manufacturing and production know-how
and experience; management know-how; training programs; manufacturing,
engineering and other drawings; specifications; performance criteria; operating
instructions; maintenance manuals; technology; technical information; software;
engineering and computer data and databases; design and engineering
specifications; catalogs; financial, business and marketing plans; inventions
and invention disclosures.
"Receivables" means all Accounts, all Chattel Paper, and all
Payment Intangibles, now or hereafter owned by any Assignor and, in any event,
shall include all Supporting Obligations, including without limitation 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" has the meaning provided in Section 7.4(e) of
this Agreement.
"Required Secured Creditors" means (i) the Required Lenders
(or, to the extent required by Section 13.11 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" has the meaning provided in Section 10.2
of this Agreement.
"Secondary Obligations" has the meaning provided in Section
7.4(b) of this Agreement.
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"Secured Creditors" has the meaning provided in the recitals
of this Agreement.
"Secured Debt Agreements" means and include this Agreement,
the other Credit Documents and the Interest Rate Protection Agreements and Other
Hedging Agreements.
"Securities Account" means a "securities account" as defined
in the Minnesota UCC. The term "Securities Accounts" shall include, without
limitation, all of the accounts listed on Annex H under the heading "Securities
Accounts" (as such schedule may be amended or supplemented from time to time).
"Securities Entitlement" means a "securities entitlement" as
defined in the Minnesota UCC.
"Supporting Obligation" means a "supporting obligation" as
defined in the Minnesota UCC.
"Termination Date" has the meaning provided in Section 10.8 of
this Agreement.
"Trade Secrets" means any secretly held existing engineering
and other data, information, production procedures and other know-how relating
to the design, manufacture, assembly, installation, use, operation, marketing,
sale and servicing of any products or business of an Assignor worldwide whether
written or not written.
"Trade Secret Rights" means the rights of an Assignor in any
Trade Secret it holds.
"UCC" means the Uniform Commercial Code as in effect from time
to time in the relevant jurisdiction.
"Uncertificated Security" means an "uncertificated security"
as defined in the Minnesota UCC.
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 sent or delivered by mail, telegraph, telex, telecopy,
cable or overnight courier service and all such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by
overnight courier, be effective when deposited in the mails, delivered to the
telegraph company, cable company or overnight courier, as the case may be, or
sent by telex or telecopier and when mailed shall be effective three Business
Days following deposit in the mail with proper postage, except that notices and
communications to the Collateral Agent or any Assignor shall not be effective
until received by the Collateral Agent or such Assignor, as the case may be. All
notices and other communications shall be in writing and addressed as follows:
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(a) if to any Assignor, at:
c/o infoUSA Inc.
5711 South 86th Circle
Omaha, Nebraska 68127
Attention: Chief Financial Officer
Telephone No.: (402) 593-4500
Telecopier No.: (402) 331-1505
(b) if to the Collateral Agent, at:
Wells Fargo Bank, National Association
1740 Broadway
MAC: C7300-034
Denver, Colorado 80209
Attention: Kevin Rapp
Tel. No.: (___) ___________
Fax. No.: (___) ___________
(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" 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 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
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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) and shall inure to the benefit
of the Collateral Agent and the 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 MINNESOTA.
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 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 Commitment and all Interest Rate Protection Agreements and Other
Hedging Agreements have been terminated, no Note is outstanding (and
all
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Loans have been repaid in full), all Letters of Credit have been
terminated and all Obligations then due and payable 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 10.2 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 and the proceeds of such sale or sales or from such release
are applied in accordance with the provisions of the Credit Agreement,
to the extent required to be so applied, such Collateral will be sold
free and clear of the Liens created by this Agreement and the
Collateral Agent, at the request and expense of the relevant Assignor,
will duly and promptly 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 senior 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.
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 Article
12 of the Credit Agreement. The Collateral Agent shall act hereunder and
thereunder on the terms and conditions set forth herein and in Article 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.
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10.13 Additional Assignors. It is understood and agreed
that any Subsidiary of the Borrower that is required to execute a counterpart of
this Agreement after the date hereof pursuant to the Credit Agreement shall
become an Assignor hereunder by executing a counterpart hereof and delivering
the same to the Collateral Agent (it being understood that in connection
therewith, such Subsidiary shall supplement Annexes A through H with information
pertaining to such Subsidiary).
* * *
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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.
infoUSA INC., as an Assignor
By _________________________________________
Name:_______________________________________
Title: _____________________________________
AMERICAN CHURCH LISTS, INC.,
BJ HUNTER INFORMATION, INC.,
CD-ROM TECHNOLOGIES, INC.,
CITY DIRECTORIES, INC.,
CLICKACTION INC.,
DONNELLEY MARKETING, INC.,
HILL-DONNELLY CORPORATION
IDEXEC, INC.,
INFOUSA MARKETING, INC.,
LIST BAZAAR.COM, INC.,
MARKADO, INC.,
STRATEGIC INFORMATION MANAGEMENT, INC.,
TGMVC CORPORATION,
TRIPLEX DIRECT MARKETING CORP.,
WALTER KARL, INC., and
YESMAIL, INC.
each as an Assignor
By _________________________________________
Name:_______________________________________
Title: _____________________________________
Signature Page
to
Security Agreement
Accepted and Agreed to:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Collateral Agent
By:_____________________________
Name:___________________________
Title: _________________________