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Exhibit 10.2
PLEDGE AND SECURITY AGREEMENT
DATED AS OF APRIL 6, 2004
AMONG
PRESTIGE BRANDS, INC.
AS A GRANTOR
AND
EACH OTHER GRANTOR
FROM TIME TO TIME PARTY HERETO
AND
CITICORP NORTH AMERICA, INC.
AS ADMINISTRATIVE AGENT
AND
CITICORP NORTH AMERICA, INC.
AS TRANCHE C AGENT
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153-0119
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TABLE OF CONTENTS
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PAGE
Article I Defined Terms......................................................................1
Section 1.1 Definitions................................................................1
Section 1.2 Certain Other Terms........................................................5
Article II Grant of Security Interest.........................................................6
Section 2.1 Collateral.................................................................6
Section 2.2 Grant of Security Interest in Collateral...................................7
Section 2.3 Cash Collateral Accounts...................................................8
Article III Representations and Warranties.....................................................8
Section 3.1 Title; No Other Liens......................................................8
Section 3.2 Perfection and Priority....................................................8
Section 3.3 Jurisdiction of Organization; Chief Executive Office.......................9
Section 3.4 Inventory and Equipment....................................................9
Section 3.5 Pledged Collateral.........................................................9
Section 3.6 Accounts..................................................................10
Section 3.7 Intellectual Property.....................................................10
Section 3.8 Deposit Accounts; Securities Accounts.....................................11
Section 3.9 Commercial Tort Claims....................................................11
Article IV Covenants.........................................................................11
Section 4.1 Generally.................................................................11
Section 4.2 Maintenance of Perfected Security Interest; Further Documentation.........11
Section 4.3 Changes in Locations, Name, Etc...........................................12
Section 4.4 Pledged Collateral........................................................12
Section 4.5 Accounts..................................................................14
Section 4.6 Delivery of Instruments and Chattel Paper.................................14
Section 4.7 Intellectual Property.....................................................15
Section 4.8 Vehicles..................................................................16
Section 4.9 Payment of Obligations....................................................17
Section 4.10 Insurance.................................................................17
Section 4.11 Notice of Commercial Tort Claims..........................................17
Article V Remedial Provisions...............................................................18
Section 5.1 Code and Other Remedies...................................................18
Section 5.2 Accounts and Payments in Respect of General Intangibles...................19
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TABLE OF CONTENTS
(CONTINUED)
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PAGE
Section 5.3 Pledged Collateral........................................................20
Section 5.4 Proceeds Turned Over to Applicable Collateral Agent.......................21
Section 5.5 Registration Rights.......................................................21
Section 5.6 Deficiency................................................................22
Article VI The Collateral Agents.............................................................22
Section 6.1 Collateral Agent's Appointment as Attorney-in-Fact........................22
Section 6.2 Duty of Collateral Agents.................................................24
Section 6.3 Authorization of Financing Statements.....................................24
Section 6.4 Authority of Collateral Agents............................................24
Article VII Miscellaneous ....................................................................25
Section 7.1 Succession of the Tranche C Agent to the Rights of Administrative Agent...25
Section 7.2 Amendments in Writing.....................................................25
Section 7.3 Notices...................................................................25
Section 7.4 No Waiver by Course of Conduct; Cumulative Remedies.......................25
Section 7.5 Successors and Assigns....................................................26
Section 7.6 Counterparts..............................................................26
Section 7.7 Severability..............................................................26
Section 7.8 Section Headings..........................................................26
Section 7.9 Entire Agreement..........................................................26
Section 7.10 Governing Law.............................................................26
Section 7.11 Additional Grantors.......................................................26
Section 7.12 Release of Collateral.....................................................27
Section 7.13 Reinstatement.............................................................27
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ANNEXES AND SCHEDULES
Annex 1 Form of Deposit Account Control Agreement
Annex 2 Form of Securities Account Control Agreement
Annex 3 Form of Pledge Amendment
Annex 4 Form of Joinder Agreement
Annex 5 Form of Short Form Intellectual Property Security Agreement
Schedule 1 Jurisdiction of Organization; Principal Executive Office
Schedule 2 Pledged Collateral
Schedule 3 Filings
Schedule 4 Location of Inventory and Equipment
Schedule 5 Intellectual Property
Schedule 6 Bank Accounts; Control Accounts
Schedule 7 Commercial Tort Claims
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PLEDGE AND SECURITY AGREEMENT, dated as of April 6, 2004, by PRESTIGE
BRANDS, INC., a Delaware corporation (the "BORROWER"), and each of the other
entities listed on the signature pages hereof or that becomes a party hereto
pursuant to SECTION 7.11 (ADDITIONAL GRANTORS) (each a "GRANTOR" and,
collectively, the "GRANTORS"), in favor of CITICORP NORTH AMERICA, INC.
("CNAI"), as administrative agent for the Lenders and the Issuers and collateral
agent for the First-Priority Secured Parties (in such capacity, the
"ADMINISTRATIVE AGENT"), and as collateral agent for the Tranche C Secured
Parties (in such capacity, the "TRANCHE C AGENT," and, together with the
Administrative Agent, the "COLLATERAL AGENTS").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, of even date herewith (as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), among the Borrower, Prestige Brands
International, LLC, a Delaware limited liability company (the "PARENT"), the
Lenders and Issuers party thereto, the Collateral Agents, Bank of America, N.A.,
as syndication agent for the Lenders and the Issuers and Merrill Lynch Capital,
a division of Merrill Lynch Business Financial Services Inc., as documentation
agent for the Lenders and the Issuers, the Lenders and the Issuers have
severally agreed to make extensions of credit to the Borrower upon the terms and
subject to the conditions set forth therein;
WHEREAS, the Grantors other than the Borrower are party to the
Guaranty pursuant to which they have guaranteed the Obligations (as defined in
the Credit Agreement); and
WHEREAS, it is a condition precedent to the obligation of the Lenders
and the Issuers to make their respective extensions of credit to the Borrower
under the Credit Agreement that the Grantors shall have executed and delivered
this Agreement to the Collateral Agents;
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders, the Issuers, the Collateral Agents, and the other Agents to enter into
the Credit Agreement and to induce the Lenders and the Issuers to make their
respective extensions of credit to the Borrower thereunder, each Grantor hereby
agrees with the Collateral Agents as follows:
ARTICLE I DEFINED TERMS
SECTION 1.1 DEFINITIONS
(a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein have the meanings given to them in the Credit
Agreement.
(b) Terms used herein without definition that are defined in the
UCC have the meanings given to them in the UCC, including the following terms
(which are capitalized herein):
"ACCOUNT DEBTOR"
"ACCOUNT"
"CERTIFICATED SECURITY"
"CHATTEL PAPER"
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"COMMERCIAL TORT CLAIM"
"COMMODITY ACCOUNT"
"CONTROL ACCOUNT"
"DEPOSIT ACCOUNT"
"DOCUMENTS"
"ENTITLEMENT HOLDER"
"ENTITLEMENT ORDER"
"EQUIPMENT"
"FINANCIAL ASSET"
"GENERAL INTANGIBLE"
"GOODS"
"INSTRUMENTS"
"INVENTORY"
"INVESTMENT PROPERTY"
"LETTER-OF-CREDIT RIGHT"
"PROCEEDS"
"SECURITIES ACCOUNT"
"SECURITIES INTERMEDIARY"
"SECURITY"
"SECURITY ENTITLEMENT"
(c) The following terms shall have the following meanings:
"ADDITIONAL PLEDGED COLLATERAL" means any Pledged Collateral acquired
by any Grantor after the date hereof and in which a security interest is granted
pursuant to SECTION 2.2 (GRANT OF SECURITY INTEREST IN COLLATERAL), including,
to the extent a security interest is granted therein pursuant to SECTION 2.2
(GRANT OF SECURITY INTEREST IN COLLATERAL), (i) all Stock and Stock Equivalents
of any Person that are acquired by any Grantor after the date hereof, together
with all certificates, instruments or other documents representing any of the
foregoing and all Security Entitlements of any Grantor in respect of any of the
foregoing, (ii) all additional Indebtedness from time to time owed to any
Grantor by any obligor on the Pledged Debt Instruments and the
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Instruments evidencing such Indebtedness and (iii) all interest, cash,
Instruments and other property or Proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any of the
foregoing. "ADDITIONAL PLEDGED COLLATERAL" may be General Intangibles,
Instruments or Investment Property.
"AGREEMENT" means this Pledge and Security Agreement.
"APPLICABLE COLLATERAL AGENT" means, prior to payment in full of the
First-Priority Secured Obligations, the Administrative Agent, and, thereafter,
the Tranche C Agent.
"COLLATERAL" has the meaning specified in SECTION 2.1 (COLLATERAL).
"COPYRIGHT LICENSES" means any written agreement naming any Grantor as
licensor or licensee granting any right under any Copyright, including the grant
of any right to copy, publicly perform, create derivative works, manufacture,
distribute, exploit or sell materials derived from any Copyright.
"COPYRIGHTS" means (a) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof (or any
treaty or international organization or body or political subdivision thereof),
whether registered or unregistered and whether published or unpublished, all
registrations and recordings thereof and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any foreign counterparts thereof, and (b)
the right to obtain all renewals thereof.
"DEPOSIT ACCOUNT CONTROL AGREEMENT" means a letter agreement,
substantially in the form of ANNEX 1 (FORM OF DEPOSIT ACCOUNT CONTROL AGREEMENT)
(with such changes as may be agreed to by the Administrative Agent), executed by
the Grantor, each Collateral Agent and the relevant financial institution.
"EXCLUDED EQUITY" means any Voting Stock in excess of 66% of the total
outstanding Voting Stock of any Excluded Foreign Subsidiary. For the purposes of
this definition, "VOTING STOCK" means, as to any issuer, the issued and
outstanding shares of each class of capital stock or other ownership interests
of such issuer entitled to vote (within the meaning of Treasury Regulations
Section 1.956-2(c)(2)).
"EXCLUDED PROPERTY" means, collectively, (i) Excluded Equity, (ii) any
permit, lease, license, contract, instrument or other agreement held by any
Grantor that prohibits or requires the consent of any Person other than the
Borrower and its Affiliates as a condition to the creation by such Grantor of a
Lien thereon, or any permit, lease, license contract or other agreement held by
any Grantor to the extent that any Requirement of Law applicable thereto
prohibits the creation of a Lien thereon, but only, in each case, to the extent,
and for so long as, such prohibition is not terminated or rendered unenforceable
or otherwise deemed ineffective by the UCC or any other Requirement of Law,
(iii) Equipment owned by any Grantor that is subject to a purchase money Lien or
a Capital Lease if the contract or other agreement in which such Lien is granted
(or in the documentation providing for such Capital Lease) prohibits or requires
the consent of any Person other than the Borrower and its Affiliates as a
condition to the creation of any other Lien on such Equipment and (iv) each U.S.
application to register any Trademark prior to the filing under applicable law
of a verified statement of use (or equivalent) for such Trademark; PROVIDED,
HOWEVER, that "EXCLUDED PROPERTY" shall not include any Proceeds,
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substitutions or replacements of Excluded Property (unless such Proceeds,
substitutions or replacements would constitute Excluded Property).
"INTELLECTUAL PROPERTY" means, collectively, all rights, priorities
and privileges of any Grantor relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark
Licenses, trade secrets and Internet domain names, and all rights to sue at law
or in equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"INTERCOMPANY NOTE" means any promissory note evidencing loans made by
any Grantor or any of its Subsidiaries to any of its Subsidiaries or another
Grantor.
"LLC" means each limited liability company in which a Grantor has an
interest, including those set forth on SCHEDULE 2 (PLEDGED COLLATERAL).
"LLC AGREEMENT" means each operating agreement with respect to a LLC,
as each agreement has heretofore been, and may hereafter be, amended, restated,
supplemented or otherwise modified from time to time.
"MATERIAL INTELLECTUAL PROPERTY" means Intellectual Property owned by
or licensed to a Grantor and material to the conduct of any Grantor's business.
"PAID IN FULL" and "PAYMENT IN FULL" means, with respect to any
Secured Obligation, the occurrence of all of the foregoing, (a) with respect to
such Secured Obligations other than (i) contingent indemnification obligations,
Hedging Contract Obligations and Cash Management Obligations not then due and
payable and (ii) to the extent covered by CLAUSE (b) below, obligations with
respect to undrawn Letters of Credit, payment in full thereof in cash (or
otherwise to the written satisfaction of the Secured Parties owed such Secured
Obligations), (b) with respect to any undrawn Letter of Credit, the obligations
under which are included in such Secured Obligations, (i) the cancellation
thereof and payment in full of all resulting Secured Obligations pursuant to
CLAUSE (a) above or (ii) the receipt of cash collateral (or a backstop letter of
credit in respect thereof on terms acceptable to the applicable Issuer of the
Letters of Credit and the Administrative Agent) in an amount at least equal to
102% of the Letter of Credit Obligations for such Letter of Credit and (c) if
such Secured Obligations consist of all the Secured Obligations in one or more
Facilities, termination of all Commitments and all other obligations of the
Secured Parties in respect of such Facilities under the Loan Documents.
"PARTNERSHIP" means each partnership in which a Grantor has an
interest, including those set forth on SCHEDULE 2 (PLEDGED COLLATERAL).
"PARTNERSHIP AGREEMENT" means each partnership agreement governing a
Partnership, as each such agreement has heretofore been, and may hereafter be,
amended, restated, supplemented or otherwise modified.
"PATENTS" means (a) all letters patent of the United States, any other
country or any political subdivision thereof (or any treaty or international
organization or body or political subdivision thereof) and all reissues and
extensions thereof, (b) all applications for letters patent of the United States
or any other country or any political subdivision thereof (or any treaty or
international organization or body or political subdivision thereof) and all
divisionals,
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continuations and continuations-in-part thereof and (c) all rights to obtain any
reissues or extensions of any of the foregoing.
"PATENT LICENSE" means all agreements, whether written or oral,
providing for the grant by or to any Grantor of any right to manufacture, have
manufactured, use, import, sell or offer for sale any invention covered in whole
or in part by a Patent.
"PLEDGED CERTIFICATED STOCK" means all Certificated Securities and any
other Stock and Stock Equivalent of a Person evidenced by a certificate,
Instrument or other equivalent document, in each case owned by any Grantor,
including all Stock listed on SCHEDULE 2 (PLEDGED COLLATERAL).
"PLEDGED COLLATERAL" means, collectively, the Pledged Stock, Pledged
Debt Instruments, any other Investment Property of any Grantor, all chattel
paper, certificates or other Instruments representing any of the foregoing and
all Security Entitlements of any Grantor in respect of any of the foregoing.
Pledged Collateral may, without limitation, be General Intangibles, Instruments
or Investment Property.
"PLEDGED DEBT INSTRUMENTS" means all right, title and interest of any
Grantor in Instruments evidencing any Indebtedness owed to such Grantor,
including all Indebtedness described on SCHEDULE 2 (PLEDGED COLLATERAL), issued
by the obligors named therein.
"PLEDGED STOCK" means all Pledged Certificated Stock and all Pledged
Uncertificated Stock. For purposes of this Agreement, the term "PLEDGED STOCK"
shall not include any Excluded Equity.
"PLEDGED UNCERTIFICATED STOCK" means any Stock or Stock Equivalent of
any Person that is not a Pledged Certificated Stock, including all right, title
and interest of any Grantor as a limited or general partner in any Partnership
or as a member of any LLC and all right, title and interest of any Grantor in,
to and under any Partnership Agreement or LLC Agreement to which it is a party.
"SECURITIES ACCOUNT CONTROL AGREEMENT" means a letter agreement,
substantially in the form of ANNEX 2 (FORM OF SECURITIES ACCOUNT CONTROL
AGREEMENT) (with such changes as may be agreed to by the Administrative Agent),
executed by the relevant Grantor, the Collateral Agents and the relevant
Approved Securities Intermediary.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"TRADEMARK LICENSE" means any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any Trademark.
"TRADEMARKS" means (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and, in each case, all
goodwill associated therewith, whether now existing or hereafter adopted or
acquired, all registrations and recordings thereof and all applications in
connection therewith, in each case whether in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision thereof (or any
treaty or international organization or
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body or political subdivision thereof), and all common-law rights related
thereto, and (b) the right to obtain all renewals thereof.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the State of New York; PROVIDED, HOWEVER, that, in the event that, by reason
of mandatory provisions of law, any of the attachment, perfection or priority of
the Collateral Agents' and any Secured Party's security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term "UCC" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such attachment, perfection or priority and
for purposes of definitions related to such provisions.
"VEHICLES" means all vehicles covered by a certificate of title law of
any state.
SECTION 1.2 CERTAIN OTHER TERMS
(a) In this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "FROM" means "from and
including" and the words "TO" and "UNTIL" each mean "to but excluding" and the
word "THROUGH" means "to and including."
(b) The terms "HEREIN," "HEREOF," "HERETO" and "HEREUNDER" and
similar terms refer to this Agreement as a whole and not to any particular
Article, Section, subsection or clause in this Agreement.
(c) References herein to an Annex, Schedule, Article, Section,
subsection or clause refer to the appropriate Annex or Schedule to, or Article,
Section, subsection or clause in this Agreement.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) Where the context requires, provisions relating to any
Collateral, when used in relation to a Grantor, shall refer to such Grantor's
Collateral or any relevant part thereof.
(f) Any reference in this Agreement to a Loan Document shall
include all appendices, exhibits and schedules thereto, and, unless specifically
stated otherwise all amendments, restatements, supplements or other
modifications thereto, and as the same may be in effect at any time such
reference becomes operative.
(g) The term "INCLUDING" means "including without limitation"
except when used in the computation of time periods.
(h) The terms "LENDER," "ISSUER," "ADMINISTRATIVE AGENT" "TRANCHE C
AGENT," "COLLATERAL AGENT," "APPLICABLE COLLATERAL AGENT" and "SECURED PARTY"
include their respective successors.
(i) References in this Agreement to any statute shall be to such
statute as amended or modified and in effect from time to time.
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ARTICLE II GRANT OF SECURITY INTEREST
SECTION 2.1 COLLATERAL
For the purposes of this Agreement, all of the following property now
owned or at any time hereafter acquired by a Grantor or in which a Grantor now
has or at any time in the future may acquire any right, title or interests is
collectively referred to as the "COLLATERAL":
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Inventory;
(i) all Investment Property;
(j) all Letter-of-Credit Rights;
(k) all Vehicles;
(l) the Commercial Tort Claims described on Schedule 7 (COMMERCIAL
TORT CLAIMS) and on any supplement thereto received by the Administrative Agent
pursuant to SECTION 4.11 (NOTICE OF COMMERCIAL TORT CLAIMS);
(m) all books and records pertaining to the other property
described in this SECTION 2.1;
(n) all property of any Grantor held by any Collateral Agent or any
other Secured Party, including all property of every description, in the
possession or custody of or in transit to such Collateral Agent or such Secured
Party for any purpose, including safekeeping, collection or pledge, for the
account of such Grantor or as to which such Grantor may have any right or power;
(o) all other Goods and personal property of such Grantor, whether
tangible or intangible and wherever located; and
(p) to the extent not otherwise included, all Proceeds;
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PROVIDED, HOWEVER, that "COLLATERAL" shall not include any Excluded Property;
and PROVIDED, FURTHER, that if and when any property shall cease to be Excluded
Property, such property shall be deemed at all times from and after the date
hereof to constitute Collateral.
SECTION 2.2 GRANT OF SECURITY INTEREST IN COLLATERAL
(a) Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations of such Grantor, hereby
mortgages, pledges and hypothecates to the Administrative Agent for the benefit
of the First-Priority Secured Parties, and grants to the Administrative Agent
for the benefit of the First-Priority Secured Parties a lien on and security
interest in, all of its right, title and interest in, to and under the
Collateral; PROVIDED, HOWEVER, that, if and when any property that at any time
constituted Excluded Property becomes Collateral, the Administrative Agent shall
have, and at all times from and after the date hereof be deemed to have had, a
lien on and security interest in such property.
(b) Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Tranche C Secured Obligations of such Grantor,
hereby also mortgages, pledges and hypothecates to the Tranche C Agent for the
benefit of the Tranche C Secured Parties, and grants to the Tranche C Agent for
the benefit of the Tranche C Secured Parties a lien on and security interest in,
all of its right, title and interest in, to and under the Collateral; PROVIDED,
HOWEVER, that, if and when any property that at any time constituted Excluded
Property becomes Collateral, the Tranche C Agent shall have, and at all times
from and after the date hereof be deemed to have had, a lien on and security
interest in such property; and PROVIDED, FURTHER, that the foregoing lien and
security interest to the Tranche C Agent shall be junior in priority to the
security interest granted to the Administrative Agent for the benefit of the
First-Priority Secured Parties pursuant to CLAUSE (a) above on the terms set
forth in the Intercreditor Agreement.
SECTION 2.3 CASH COLLATERAL ACCOUNTS
The Administrative Agent has established a Deposit Account at
Citibank, N.A., designated as "Citicorp North America, Inc. - Prestige Brands,
Inc. Cash Collateral Account". Such Deposit Account shall be a Cash Collateral
Account. Upon payment in full of the First-Priority Secured Obligations, the
Tranche C Agent may establish a similar Cash Collateral Account with the Tranche
C Agent or an appropriate Affiliate thereof.
ARTICLE III REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuers, the Collateral Agents and the
other Agents to enter into the Credit Agreement, each Grantor hereby represents
and warrants each of the following to the Administrative Agent, the Lenders, the
Issuers and the other Secured Parties:
SECTION 3.1 TITLE; NO OTHER LIENS
Except for Liens granted to the Collateral Agents pursuant to this
Agreement and the other Liens permitted to exist on the Collateral under the
Credit Agreement, such Grantor (a) is the record and beneficial owner of the
Pledged Collateral pledged by it hereunder constituting Instruments or
Certificated Securities, (b) is the Entitlement Holder of all such Pledged
Collateral constituting Investment Property held in a Securities Account and (c)
has
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rights in or the power to transfer each other item of Collateral in which a Lien
is granted by it hereunder, free and clear of any other Lien.
SECTION 3.2 PERFECTION AND PRIORITY
The security interests granted pursuant to this Agreement shall
constitute valid and continuing perfected security interests in favor of the
Collateral Agents in the Collateral for which perfection is governed by the UCC
or filing with the United States Copyright Office upon (i) in the case of all
Collateral in which a security interest may be perfected by filing a financing
statement under the UCC, the timely and proper completion of the filings and
other actions specified on SCHEDULE 3 (FILINGS) (which, in the case of all
filings and other documents referred to on such schedule, have been delivered to
the Administrative Agent in completed and duly executed form), (ii) the delivery
to the Applicable Collateral Agent of all Collateral consisting of Instruments
and Certificated Securities, in each case properly endorsed for transfer to the
Administrative Agent or in blank, (iii) the execution of Securities Account
Control Agreements with respect to Investment Property not in certificated form,
(iv) the execution of Deposit Account Control Agreements with respect to all
Deposit Accounts of a Grantor and (v) in the case of Collateral in which a
security interest may be perfected by filing with the United States Copyright
Office, filing of a short-form security agreement in the form attached hereto as
ANNEX 5 (FORM OF SHORT FORM INTELLECTUAL PROPERTY SECURITY AGREEMENT) with the
United States Copyright Office. Security interests in collateral that is subject
to foreign jurisdiction Requirements of Law may require additional actions in
accordance with the Requirements of Law of such jurisdictions. The security
interest created hereunder in favor of the Administrative Agent for the benefit
of the First-Priority Secured Parties be prior to all other Liens on the
Collateral except for Customary Permitted Liens having priority over the
Administrative Agent's Lien by operation of law or otherwise as permitted under
the Credit Agreement. The security interest created hereunder in favor of the
Tranche C Agent for the benefit of the Tranche C Secured Parties will be prior
to all other Liens on the Collateral except for (x) the Liens in favor of the
Administrative Agent for the benefit of the First-Priority Secured Parties and
(y) the Customary Permitted Liens, in each case to the extent that a security
interest therein can be perfected by filing or possession.
SECTION 3.3 JURISDICTION OF ORGANIZATION; CHIEF EXECUTIVE OFFICE
Such Grantor's jurisdiction of organization, legal name,
organizational identification number, if any, and the location of such Grantor's
chief executive office or sole place of business, in each case as of the date
hereof, is specified on SCHEDULE 1 (JURISDICTION OF ORGANIZATION; PRINCIPAL
EXECUTIVE OFFICE) and such SCHEDULE 1 (JURISDICTION OF ORGANIZATION; PRINCIPAL
EXECUTIVE OFFICE) also lists all jurisdictions of incorporation, legal names and
locations of such Grantor's chief executive office or sole place of business for
the five years preceding the date hereof.
SECTION 3.4 INVENTORY AND EQUIPMENT
On the date hereof, such Grantor's Inventory and Equipment (other than
mobile goods and Inventory or Equipment in transit) are kept at the locations
listed on SCHEDULE 4 (LOCATION OF INVENTORY AND EQUIPMENT) and such SCHEDULE 4
(LOCATION OF INVENTORY AND EQUIPMENT) also list the locations of such Inventory
and Equipment for the five years preceding the date hereof.
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SECTION 3.5 PLEDGED COLLATERAL
(a) The Pledged Stock pledged hereunder by such Grantor is listed
on SCHEDULE 2 (PLEDGED COLLATERAL) and constitutes that percentage of the issued
and outstanding equity of all classes of each issuer thereof as set forth on
SCHEDULE 2 (PLEDGED COLLATERAL).
(b) All of the Pledged Stock (other than Pledged Stock in limited
liability companies and partnerships) has been duly authorized, validly issued
and is fully paid and nonassessable.
(c) Each of the Pledged Stock constitutes the legal, valid and
binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, and general equitable
principles (whether considered in a proceeding in equity or at law).
(d) All Pledged Collateral and, if applicable, any Additional
Pledged Collateral, consisting of Certificated Securities or Instruments has
been delivered to the Applicable Collateral Agent in accordance with SECTION
4.4(a) (PLEDGED COLLATERAL) hereof and SECTION 7.11 (ADDITIONAL COLLATERAL AND
GUARANTIES) of the Credit Agreement.
(e) All Pledged Collateral held by a Securities Intermediary in a
Securities Account is in a Control Account.
(f) Other than Pledged Stock constituting General Intangibles,
there is no Pledged Collateral other than that represented by Certificated
Securities or Instruments in the possession of either Collateral Agent, or that
consists of Financial Assets held in a Control Account.
(g) The Constituent Documents of any Person governing any Pledged
Stock of any limited liability company partnership or similar entity do not,
upon the occurrence and during the continuance of an Event of Default, prevent
the Applicable Collateral Agent from exercising all of the rights of the Grantor
granting the security interest therein, or prevent a transferee or assignee of
Stock of such Person from becoming a member partner or, as the case may be, or
other holder of such Pledged Stock to the same extent as the Grantor in such
Person entitled to participate in the management of such Person or prohibit that
upon the transfer of the entire interest of such Grantor, such Grantor ceases to
be a member, partner or, as the case may be, other holder of such Pledged Stock.
SECTION 3.6 ACCOUNTS
No amount payable to such Grantor under or in connection with any
Account is evidenced by any Instrument or Chattel Paper that has not been
delivered to the Applicable Collateral Agent properly endorsed for transfer, to
the extent delivery is required by SECTION 4.4 (PLEDGED COLLATERAL).
SECTION 3.7 INTELLECTUAL PROPERTY
(a) SCHEDULE 5 (INTELLECTUAL PROPERTY) lists all registrations for
and applications to register Material Intellectual Property and material
unregistered trademarks owned
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by such Grantor on the date hereof. SCHEDULE 5 (INTELLECTUAL PROPERTY) also
lists all license agreements pursuant to which Material Intellectual Property is
licensed to such Grantor.
(b) Except as set forth on SCHEDULE 5 (INTELLECTUAL PROPERTY), all
Material Intellectual Property owned by such Grantor is valid, subsisting,
unexpired and enforceable, has not been adjudged invalid and has not been
abandoned and the use thereof in the business of such Grantor does not infringe,
misappropriate, dilute or violate the intellectual property rights of any other
Person.
(c) Except as set forth in SCHEDULE 5 (INTELLECTUAL PROPERTY), none
of the Material Intellectual Property owned by such Grantor is the subject of
any licensing or franchise agreement pursuant to which such Grantor is the
licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority that would limit, cancel or question the validity of, or
such Grantor's rights in, any Material Intellectual Property.
(e) No action or proceeding seeking to limit, cancel or question
the validity of any Material Intellectual Property owned by such Grantor or such
Grantor's ownership interest therein is pending or, to the knowledge of such
Grantor, threatened. There are no claims, judgments or settlements to be paid by
such Grantor relating to the Material Intellectual Property.
SECTION 3.8 DEPOSIT ACCOUNTS; SECURITIES ACCOUNTS
The only Deposit Accounts or Securities Accounts maintained by any
Grantor on the date hereof are those listed on SCHEDULE 6 (BANK ACCOUNTS;
CONTROL ACCOUNTS), which sets forth such information separately for each
Grantor.
SECTION 3.9 COMMERCIAL TORT CLAIMS
The only Commercial Tort Claims of any Grantor existing on the date
hereof (regardless of whether the amount, defendant or other material facts can
be determined and regardless of whether such Commercial Tort Claim has been
asserted, threatened or has otherwise been made known to the obligee thereof or
whether litigation has been commenced for such claims) are those listed on
SCHEDULE 7 (COMMERCIAL TORT CLAIMS), which sets forth such information
separately for each Grantor.
ARTICLE IV COVENANTS
Each Grantor agrees with each Collateral Agent to the following until
all Secured Obligations are paid in full, unless the Requisite Lenders otherwise
consent in writing:
SECTION 4.1 GENERALLY
Such Grantor shall (a) not create or suffer to exist any Lien upon or
with respect to any Collateral, except Liens permitted under SECTION 8.2 (LIENS,
ETC.) of the Credit Agreement, (b) not use or permit any Collateral to be used
unlawfully or in violation of any provision of this Agreement, any other Loan
Document, any Related Document, any Requirement of Law or any policy of
insurance covering the Collateral, (c) not enter into any agreement or
undertaking restricting the right or ability of such Grantor or any Collateral
Agent to sell, assign or transfer
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any Collateral if such restriction would have a Material Adverse Effect and (d)
promptly notify each Collateral Agent of its entry into any agreement or
assumption of undertaking that restricts the ability to sell, assign or transfer
any Collateral regardless of whether or not it has a Material Adverse Effect.
SECTION 4.2 MAINTENANCE OF PERFECTED SECURITY INTEREST; FURTHER
DOCUMENTATION
(a) Such Grantor shall maintain the security interests created by
this Agreement as security interests having at least the priority described in
SECTION 3.2 (PERFECTION AND PRIORITY) and SECTION 2.2 (GRANT OF SECURITY
INTEREST IN COLLATERAL) and shall defend such security interests and such
priority against the claims and demands of all Persons to the extent adverse to
such Grantor's ownership rights or otherwise inconsistent with this Agreement or
the other Loan Documents; PROVIDED, HOWEVER, that security interests that relate
solely to Collateral the aggregate value of which has a Dollar Equivalent not
exceeding $1,000,000 are deemed invalid or unenforceable, such invalidity or
unenforceability may remain to the extent not constituting an Event of Default
under SECTION 9.1(j)(EVENTS OF DEFAULT) of the Credit Agreement for the period
specified therein.
(b) Such Grantor shall furnish to the Applicable Collateral Agent
from time to time statements and schedules further identifying and describing
the Collateral and such other reports in connection with the Collateral as the
Applicable Collateral Agent may reasonably request, all in reasonable detail and
in form and substance satisfactory to the Applicable Collateral Agent.
(c) Subject to the limitations on visits set forth in SECTION 7.6
(ACCESS) of the Credit Agreement, at any time and from time to time, upon the
reasonable written request of the Applicable Collateral Agent, and at the sole
expense of such Grantor, such Grantor shall promptly and duly execute and
deliver, and have recorded or authorize the recording of, such further
instruments and documents and take such further action as the Applicable
Collateral Agent may reasonably request for the purpose of obtaining or
preserving the benefits of this Agreement and of the rights and powers herein
granted, including the filing of any financing or continuation statement under
the UCC (or any other Requirement of Law relating to registration of Liens over
Intellectual Property or other personal property) in effect in any jurisdiction
with respect to the security interests created hereby and the execution and
delivery of Deposit Account Control Agreements and Securities Account Control
Agreements.
SECTION 4.3 CHANGES IN LOCATIONS, NAME, ETC.
(a) Except upon 15 days' prior written notice to the Applicable
Collateral Agent and delivery to the Applicable Collateral Agent of (i) all
additional financing statements and other documents reasonably requested by the
Applicable Collateral Agent to maintain the validity, perfection and priority of
the security interests provided for herein and (ii) if applicable, a written
supplement to SCHEDULE 4 (LOCATION OF INVENTORY AND EQUIPMENT) showing (A) any
additional locations at which Inventory or Equipment shall be kept or (B) any
changes in any location where Inventory or Equipment shall be kept that would
require either Collateral Agent to take any action to maintain perfected
Requisite Priority Liens in such Collateral, such Grantor shall not do any of
the following:
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(i) permit any Inventory or Equipment (other than computers and
communications equipment used by, and in the possession of employees) to be
kept at a location other than those listed on SCHEDULE 4 (LOCATION OF
INVENTORY AND EQUIPMENT), except for Inventory or Equipment in transit or
absent for repair in the ordinary course of business; PROVIDED, HOWEVER,
that Inventory and Equipment having an aggregate Fair Market Value not to
exceed $500,000.00 may be kept at other locations;
(ii) change its jurisdiction of organization or its location, in
each case from that referred to in Section 3.3 (Jurisdiction of
Organization; Chief Executive Office); or
(iii) change its legal name or any trade name used to identify it in
the conduct of its business or ownership of its properties or
organizational identification number, if any, or corporation, limited
liability company or other organizational structure to such an extent that
any financing statement filed or other filing or registration made in
connection with this Agreement would become misleading or otherwise
ineffective.
(b) Such Grantor shall keep and maintain at its own cost and
expense satisfactory and complete records of the Collateral, including a record
of all payments received and all credits granted with respect to the Collateral
and all other dealings with the Collateral. If requested by the Applicable
Collateral Agent, the security interests of the Collateral Agents shall be noted
on the certificate of title of each Vehicle.
SECTION 4.4 PLEDGED COLLATERAL
(a) Such Grantor shall (i) deliver to the Applicable Collateral
Agent all certificates and Instruments representing or evidencing any Pledged
Collateral (including Additional Pledged Collateral), whether now existing or
hereafter acquired, in suitable form for transfer by delivery or, as applicable,
accompanied by such Grantor's endorsement, where necessary, or duly executed
instruments of transfer or assignment in blank, all in form and substance
reasonably satisfactory to the Applicable Collateral Agent, together, in respect
of any Additional Pledged Collateral, with a Pledge Amendment, duly executed by
the Grantor, in substantially the form of ANNEX 3 (FORM OF PLEDGE AMENDMENT), an
acknowledgment and agreement to a Joinder Agreement duly executed by the
Grantor, in substantially the form in the form of ANNEX 4 (FORM OF JOINDER
AGREEMENT), or such other documentation acceptable to the Applicable Collateral
Agent and (ii) maintain all other Pledged Collateral constituting Investment
Property in a Control Account. Such Grantor authorizes the Applicable Collateral
Agent to attach each Pledge Amendment to this Agreement. The Applicable
Collateral Agent shall have the right, at any time upon the occurrence and
during the continuance of any Event of Default, in its discretion and without
notice to the Grantor, to transfer to or to register in its name or in the name
of its nominees any Pledged Collateral. The Applicable Collateral Agent shall
have the right at any time upon the occurrence and during the continuance of any
Event of Default, to exchange any certificate or instrument representing or
evidencing any Pledged Collateral for certificates or instruments of smaller or
larger denominations.
(b) Except as provided in ARTICLE V (REMEDIAL PROVISIONS), such
Grantor shall be entitled to receive all cash dividends paid in respect of the
Pledged Collateral with respect to the Pledged Collateral. Any sums paid upon or
in respect of any Pledged Collateral upon the liquidation or dissolution of any
issuer of any Pledged Collateral, any distribution of capital made on or in
respect of any Pledged Collateral or any property distributed upon or with
respect to any Pledged Collateral pursuant to the recapitalization or
reclassification of the capital
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of any issuer of Pledged Collateral or pursuant to the reorganization thereof
shall, unless otherwise subject to perfected Requisite Priority Liens in favor
of the Collateral Agents, be delivered to the Applicable Collateral Agent to be
held by it hereunder as additional collateral security for the Secured
Obligations. If any such sum of money or property so paid or distributed in
respect of any Pledged Collateral shall be received by such Grantor and not
otherwise be subject to perfected Requisite Priority Liens in favor of the
Collateral Agents, such Grantor shall, until such money or property is paid or
delivered to the Applicable Collateral Agent, hold such money or property in
trust for the Applicable Collateral Agent, segregated from other funds of such
Grantor, as additional security for the Secured Obligations.
(c) Except as provided in ARTICLE V (REMEDIAL PROVISIONS), such
Grantor shall be entitled to exercise all voting, consent and corporate,
partnership, limited liability company and similar rights with respect to the
Pledged Collateral; PROVIDED, HOWEVER, that no vote shall be cast, consent given
or right exercised or other action taken by such Grantor that would materially
impair the Collateral, be inconsistent with or result in any violation of any
provision of the Credit Agreement, this Agreement or any other Loan Document or,
without prior notice to the Collateral Agents, enable or permit any issuer of
Pledged Collateral to issue any Stock or other equity Securities of any nature
or to issue any other securities convertible into or granting the right to
purchase or exchange for any Stock or other equity Securities of any nature of
any issuer of Pledged Collateral.
(d) Such Grantor shall not grant "control" (within the meaning of
such term under Article 9-106 of the UCC) over any Investment Property of such
Grantor to any Person other than the Collateral Agents.
(e) In the case of each Grantor that is an issuer of Pledged
Collateral, such Grantor agrees to be bound by the terms of this Agreement
relating to the Pledged Collateral issued by it and shall comply with such terms
insofar as such terms are applicable to it. In the case of any Grantor that is a
holder of any Stock or Stock Equivalent in any Person that is an issuer of
Pledged Collateral, such Grantor consents to (i) the exercise of the rights
granted to the Collateral Agents hereunder (including those described in SECTION
5.3 (PLEDGED COLLATERAL)), and (ii) the pledge by each other Grantor, pursuant
to the terms hereof, of the Pledged Stock in such Person and to the transfer of
such Pledged Stock after the occurrence and during the continuance Event of
Default to the Applicable Collateral Agent or its nominee and to the
substitution of the Applicable Collateral Agent or its nominee as a holder of
such Pledged Stock with all the rights, powers and duties of other holders of
Pledged Stock of the same class and, if the Grantor having pledged such Pledged
Stock hereunder had any right, power or duty at the time of such pledge or at
the time of such substitution beyond that of such other holders, with all such
additional rights, powers and duties. Such Grantor agrees to execute and deliver
to the Applicable Collateral Agent such certificates, agreements and other
documents as may be reasonably necessary to evidence, formalize or otherwise
give effect to the consents given in this CLAUSE (e).
(f) Such Grantor shall not, without the consent of the Applicable
Collateral Agent (and to the extent required pursuant to SECTION 8.11
(MODIFICATIONS OF CONSTITUENT DOCUMENTS) of the Credit Agreement, any Lender or
Agent), agree to any amendment of any Constituent Document that in any way
materially adversely affects the perfection of the security interests of either
Collateral Agent in any Pledged Collateral pledged by any Grantor hereunder,
including any amendment electing to treat any membership interest or partnership
interest that is part of the Pledged Collateral as a "security" under Section
8-103 of the UCC, or any election to
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turn any previously uncertificated Stock that is part of the Pledged Collateral
into certificated Stock.
SECTION 4.5 ACCOUNTS
(a) Such Grantor shall not, other than as permitted by the Credit
Agreement consistent with its reasonable business judgment, (i) grant any
extension of the time of payment of any Account, (ii) compromise or settle any
Account for less than the full amount thereof, (iii) release, wholly or
partially, any Person liable for the payment of any Account, (iv) allow any
credit or discount on any Account or (v) amend, supplement or modify any Account
in any manner that could materially adversely affect the value thereof.
(b) Subject to the limitations in SECTION 7.6 (ACCESS) of the
Credit Agreement, the Applicable Collateral Agent shall have the right to make
test verifications of the Accounts in any manner and through any medium that it
reasonably considers advisable, and such Grantor shall furnish all such
assistance and information as the Applicable Collateral Agent may reasonably
require in connection therewith. At any time and from time to time, upon the
Applicable Collateral Agent's request and at the expense of the relevant
Grantor, such Grantor shall cause independent public accountants or others
satisfactory to the Applicable Collateral Agent to furnish to the Applicable
Collateral Agent reports showing reconciliations, aging and test verifications
of, and trial balances for, the Accounts; PROVIDED, HOWEVER, that unless a
Default or Event of Default shall be continuing, the Applicable Collateral Agent
shall request no more than one such reports during any calendar year.
SECTION 4.6 DELIVERY OF INSTRUMENTS AND CHATTEL PAPER
If any amount in excess of $500,000 payable under or in connection
with any Collateral owned by such Grantor shall be or become evidenced by an
Instrument or Chattel Paper, such Grantor shall immediately deliver such
Instrument or Chattel Paper to the Applicable Collateral Agent, duly indorsed in
a manner reasonably satisfactory to the Applicable Collateral Agent, or, if
consented to by the Applicable Collateral Agent, shall mark, or, to the extent
permitted by such Instruments and Chattel Paper and applicable Requirements of
Law, attach a valid allonge to, all such Instruments and Chattel Paper with the
following legend: "This writing and the obligations evidenced or secured hereby
are subject to the security interest of Citicorp North America, Inc., as
Administrative Agent and the security interest of Citicorp North America Inc.,
as Tranche C Agent" (which legend shall be modified to reflect successor
Administrative Agents and successor Tranche C Agents).
SECTION 4.7 INTELLECTUAL PROPERTY
(a) Such Grantor (either itself or through licensees) shall, in
accordance with its reasonable business judgment, (i) continue to use each
Trademark that is Material Intellectual Property in order to maintain such
Trademark in full force and effect with respect to each class of goods for which
such Trademark is currently used, free from any claim of abandonment for
non-use, (ii) maintain as in the past the quality of products and services
offered under such Trademark, (iii) use such Trademark with the appropriate
notice of registration and all other notices and legends required by applicable
Requirements of Law, (iv) not adopt or use any mark that is confusingly similar
or a colorable imitation of such Trademark unless the Collateral Agents shall
obtain perfected Requisite Priority Liens in such mark pursuant to this
Agreement and (v) not (and not permit any licensee or sublicensee thereof to) do
any act or knowingly omit
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to do any act whereby such Trademark (or any goodwill associated therewith) may
become destroyed, invalidated, impaired or harmed in any way.
(b) Such Grantor (either itself or through licensees) shall, in
accordance with its reasonable business judgment, not do any act, or omit to do
any act, whereby any Patent that is Material Intellectual Property may become
forfeited, abandoned or dedicated to the public (except for Patents expiring at
the end of their statutory terms).
(c) Such Grantor (either itself or through licensees) shall, in
accordance with its reasonable business judgment, (i) not (and shall not permit
any licensee or sublicensee thereof to) do any act or omit to do any act whereby
any portion of the Copyrights that is Material Intellectual Property may become
invalidated or otherwise impaired and (ii) not (either itself or through
licensees) do any act whereby any portion of the Copyrights that is Material
Intellectual Property may fall into the public domain (except for Copyrights
expiring at the end of their statutory terms).
(d) Such Grantor (either itself or through licensees) shall not do
any act, or omit to do any act, whereby any trade secret that is Material
Intellectual Property may become publicly available or otherwise unprotectable.
(e) Such Grantor (either itself or through licensees) shall not do
any act that knowingly uses any Material Intellectual Property to infringe,
misappropriate, or violate the intellectual property rights of any other Person.
(f) Such Grantor shall notify the Applicable Collateral Agent
promptly if it knows, or has reason to know, that any application or
registration relating to any Material Intellectual Property may become
forfeited, abandoned or dedicated to the public, or of any adverse determination
or development (including the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office,
the United States Copyright Office, or any other Governmental Authority or any
international agency or similar authority), regarding such Grantor's ownership
of, right to use, interest in, or the validity of, any Material Intellectual
Property or such Grantor's right to register the same or to own and maintain the
same.
(g) Whenever such Grantor, either by itself or through any agent,
licensee or designee, shall file an application for the registration of any
Intellectual Property with the United States Patent and Trademark Office, the
United States Copyright Office, any similar Governmental Authority within or
outside the United States or any international agency or similar authority or
register any Internet domain name, such Grantor shall report such filing to the
Applicable Collateral Agent within 10 Business Days after the last day of the
fiscal quarter in which such filing occurs. Upon request of the Applicable
Collateral Agent, such Grantor shall execute and deliver, and have recorded, all
agreements, instruments, documents and papers as the Applicable Collateral Agent
may reasonably request to evidence either Collateral Agent's security interest
in any Copyright, Patent, Trademark (other than Excluded Property) or Internet
domain name and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby.
(h) Such Grantor shall take all reasonable actions necessary or
appropriate (in accordance with its reasonable business judgment) or requested
by the Applicable Collateral Agent, including in any proceeding before the
United States Patent and Trademark Office, the
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United States Copyright Office, any similar Governmental Authority within or
outside of the United States, any international agency and similar authority and
any Internet domain name registrar, to maintain and pursue each application (and
to obtain the relevant registration) and to maintain each registration of any
Copyright, Trademark, Patent or Internet domain name that is Material
Intellectual Property, including filing of applications for renewal, affidavits
of use, affidavits of incontestability and opposition and interference and
cancellation proceedings.
(i) In the event that any Material Intellectual Property is or has
been infringed upon or misappropriated or diluted by a third party, such Grantor
shall notify the Applicable Collateral Agent promptly after such Grantor learns
thereof. Such Grantor shall take appropriate action in accordance with its
reasonable business judgment in response to such infringement, misappropriation
of dilution, including promptly bringing suit for infringement, misappropriation
or dilution and to recover all damages for such infringement, misappropriation
of dilution, and shall take such other actions may be appropriate in its
reasonable judgment under the circumstances to protect such Material
Intellectual Property.
(j) Unless otherwise agreed to by the Applicable Collateral Agent,
such Grantor shall execute and deliver to the Applicable Collateral Agent for
filing (i) in the United States Copyright Office, a short-form copyright
security agreement in the form attached hereto as ANNEX 5 (FORM OF SHORT FORM
INTELLECTUAL PROPERTY SECURITY AGREEMENT), (ii) in the United States Patent and
Trademark Office and with the Secretary of State of all appropriate States of
the United States, a short-form patent security agreement in the form attached
hereto as ANNEX 5 (FORM OF SHORT FORM INTELLECTUAL PROPERTY SECURITY AGREEMENT),
(iii) in the United States Patent and Trademark Office, a short-form trademark
security agreement in form attached hereto as ANNEX 5 (FORM OF SHORT FORM
INTELLECTUAL PROPERTY SECURITY AGREEMENT), and (iv) a duly executed form of
assignment of such Internet domain name to the Applicable Collateral Agent
(together with appropriate supporting documentation as may be requested by the
Applicable Collateral Agent) in form and substance reasonably acceptable to the
Applicable Collateral Agent. In the case of CLAUSE (iv) above, such Grantor
shall execute such form of assignment in blank and hereby authorizes the
Applicable Collateral Agent, upon the occurrence or continuance of an Event of
Default, to file such assignment in such Grantor's name and to otherwise perform
in the name of such Grantor all other necessary actions to complete such
assignment, and each Grantor agrees to perform all appropriate actions deemed
necessary by the Applicable Collateral Agent for the Applicable Collateral Agent
to ensure such Internet domain name is registered in the name of either
Collateral Agent.
SECTION 4.8 VEHICLES
Upon the request of the Applicable Collateral Agent, within 30 days
after the date of such request and, with respect to Vehicles acquired by such
Grantor with an aggregate Fair Market Value in excess of $500,000 subsequent to
the date of any such request, within 30 days after the date of acquisition
thereof, such Grantor shall file all applications for certificates of title or
ownership indicating the Collateral Agents' Requisite Priority Liens in the
Vehicle covered by such certificate and any other necessary documentation, in
each office in each jurisdiction that the Applicable Collateral Agent shall deem
advisable to perfect the Collateral Agent's Requisite Priority Liens in the
Vehicles.
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SECTION 4.9 PAYMENT OF OBLIGATIONS
Such Grantor shall pay and discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all federal taxes
and all material other taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as
well as all claims of any kind (including claims for labor, materials and
supplies) against or with respect to the Collateral, except that no such charge
need be paid if the amount or validity thereof is currently being contested in
good faith by appropriate proceedings, reserves in conformity with GAAP with
respect thereto have been provided on the books of such Grantor and such
proceedings could not reasonably be expected to result in the sale, forfeiture
or loss of any material portion of the Collateral or any interest therein.
SECTION 4.10 INSURANCE
Such Grantor shall maintain, and cause to be maintained for each of
its Subsidiaries, insurance with responsible and reputable insurance companies
or associations in such amounts and covering such risks as in the reasonable
business judgment of a Responsible Officer of the Parent is sufficient,
appropriate and prudent for a business of the size and character of that of such
Person, and such other insurance as may be reasonably requested by the Requisite
Lenders, and, in any event, all insurance required by any Collateral Documents.
SECTION 4.11 NOTICE OF COMMERCIAL TORT CLAIMS
Such Grantor agrees that, if it shall acquire any interest in any
Commercial Tort Claim (whether from another Person or because such Commercial
Tort Claim shall have come into existence), (i) such Grantor shall, promptly
after a Responsible Officer gains knowledge of such acquisition, deliver to the
Applicable Collateral Agent, in each case in form and substance reasonably
satisfactory to the Applicable Collateral Agent, a notice of the existence and
nature of such Commercial Tort Claim and deliver a supplement to SCHEDULE 7
(COMMERCIAL TORT CLAIMS) containing a specific description of such Commercial
Tort Claim, (ii) the provision of SECTION 2.1 (COLLATERAL) shall apply to such
Commercial Tort Claim and (iii) such Grantor shall execute and deliver to the
Applicable Collateral Agent, in each case in form and substance reasonably
satisfactory to the Applicable Collateral Agent, any certificate, agreement and
other document, and take all other reasonable action, reasonably deemed by the
Applicable Collateral Agent to be reasonably necessary or reasonably appropriate
for the Collateral Agents to obtain perfected Requisite Priority Liens in all
such Commercial Tort Claims. Any supplement to SCHEDULE 7 (COMMERCIAL TORT
CLAIMS) delivered pursuant to this SECTION 4.11 (NOTICE OF COMMERCIAL TORT
CLAIMS) shall, after the receipt thereof by the Applicable Collateral Agent,
become part of SCHEDULE 7 (COMMERCIAL TORT CLAIMS) for all purposes hereunder
other than in respect of representations and warranties made prior to the date
of such receipt.
ARTICLE V REMEDIAL PROVISIONS
SECTION 5.1 CODE AND OTHER REMEDIES
During the continuance of an Event of Default, each Collateral Agent
may exercise, in addition to all other rights and remedies granted to it in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Secured Obligations, all rights and remedies of a secured party
under the UCC or any other applicable law. Without limiting the generality of
the foregoing, each Collateral Agent, without demand of performance or
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other demand, presentment, protest, advertisement or notice of any kind (except
any notice required by law referred to below) to or upon any Grantor or any
other Person (all and each of which demands, defenses, advertisements and
notices are hereby waived to the fullest extent permitted by law), may in such
circumstances forthwith collect, receive, appropriate and realize upon any
Collateral, and may forthwith sell, lease, assign, give option or options to
purchase, or otherwise dispose of and deliver any Collateral (or contract to do
any of the foregoing), in one or more parcels at public or private sale or
sales, at any exchange, broker's board or office of either Collateral Agent or
any Lender or elsewhere upon such terms and conditions as it may deem advisable
and at such prices as it may deem best, for cash or on credit or for future
delivery without assumption of any credit risk. Each Collateral Agent shall have
the right upon any such public sale or sales, and, to the extent permitted by
the UCC and other applicable law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption of any Grantor, which right or equity is hereby waived and
released. Each Grantor further agrees, at either Collateral Agent's request, to
assemble the Collateral and make it available to such Collateral Agent at places
that such Collateral Agent shall reasonably select, whether at such Grantor's
premises or elsewhere. Each Collateral Agent shall apply the net proceeds of any
action taken by it pursuant to this SECTION 5.1, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental
to the care or safekeeping of any Collateral or in any way relating to the
Collateral or the rights of such Collateral Agent and any other applicable
Secured Party hereunder, including reasonable attorneys' fees and disbursements,
to the payment in whole or in part of the Secured Obligations, in such order as
the Credit Agreement shall prescribe, and only after such application and after
the payment by such Collateral Agent of any other amount required by any
provision of law, need such Collateral Agent account for the surplus, if any, to
any Grantor. To the extent permitted by applicable law, each Grantor waives all
claims, damages and demands it may acquire against either Collateral Agent or
any other Secured Party arising out of the exercise by them of any rights
hereunder. If any notice of a proposed sale or other disposition of Collateral
shall be required by law, such notice shall be deemed reasonable and proper if
given at least 10 days before such sale or other disposition.
SECTION 5.2 ACCOUNTS AND PAYMENTS IN RESPECT OF GENERAL INTANGIBLES
(a) In addition to, and not in substitution for, any similar
requirement in the Credit Agreement, if required by any Collateral Agent at any
time during the continuance of an Event of Default, any payment of Accounts or
payment in respect of General Intangibles, when collected by any Grantor, shall
be forthwith (and, in any event, within five Business Days) deposited by such
Grantor in the exact form received, duly indorsed by such Grantor to the
Applicable Collateral Agent, in an Approved Deposit Account or a Cash Collateral
Account, subject to withdrawal by the Applicable Collateral Agent as provided in
SECTION 5.4 (PROCEEDS TURNED OVER TO APPLICABLE COLLATERAL AGENTS). Until so
turned over or turned over, such payment shall be held by such Grantor in trust
for the Applicable Collateral Agent, segregated from other funds of such
Grantor. Each such deposit of Proceeds of Accounts and payments in respect of
General Intangibles shall be accompanied by a report identifying in reasonable
detail the nature and source of the payments included in the deposit.
(b) At either Collateral Agent's request, during the continuance of
an Event of Default, each Grantor shall deliver to the Applicable Collateral
Agent all original and other documents evidencing, and relating to, the
agreements and transactions that gave rise to the
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Accounts or payments in respect of General Intangibles, including all original
orders, invoices and shipping receipts.
(c) Each Collateral Agent may, without notice, at any time during
the continuance of an Event of Default, limit or terminate the authority of a
Grantor to collect its Accounts or amounts due under General Intangibles or any
thereof.
(d) Each Collateral Agent in its own name or in the name of others
may at any time during the continuance of an Event of Default communicate with
Account Debtors to verify with them to the Applicable Collateral Agent's
satisfaction the existence, amount and terms of any Account or amounts due under
any General Intangible and such Collateral Agent, to the extent permitted under
applicable Requirements of Law, shall have given written notice to the relevant
Grantor on, prior to or promptly after such exercise of such Collateral Agent's
intent to exercise its corresponding rights under this SECTION 5.2; PROVIDED,
HOWEVER, that the failure of such Collateral Agent to give notice shall not
affect the rights of the Collateral Agents hereunder and shall not otherwise
result in any liability for any Collateral Agent.
(e) Upon the request of any Collateral Agent at any time during the
continuance of an Event of Default, and, to the extent permitted under
applicable Requirements of Law, such Collateral Agent shall have given written
notice to the relevant Grantor on, prior to or promptly after such exercise of
such Collateral Agent's intent to exercise its corresponding rights under this
SECTION 5.2; (PROVIDED, HOWEVER, that the failure to give notice shall not
affect the rights of the Collateral Agents hereunder and shall not otherwise
result in any liability for any Collateral Agent), each Grantor shall notify
Account Debtors that the Accounts or General Intangibles have been collaterally
assigned to the Applicable Collateral Agent and that payments in respect thereof
shall be made directly to the Applicable Collateral Agent. In addition, each
Collateral Agent may at any time during the continuance of an Event of Default
enforce such Grantor's rights against such Account Debtors and obligors of
General Intangibles.
(f) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Accounts and payments in respect of
General Intangibles to observe and perform all the conditions and obligations to
be observed and performed by it thereunder, all in accordance with the terms of
any agreement giving rise thereto. No Collateral Agent and no other Secured
Party shall have any obligation or liability under any agreement giving rise to
an Account or a payment in respect of a General Intangible by reason of or
arising out of this Agreement or the receipt by any Collateral Agent or any
other Secured Party of any payment relating thereto, and no Collateral Agent and
no other Secured Party be obligated in any manner to perform any obligation of
any Grantor under or pursuant to any agreement giving rise to an Account or a
payment in respect of a General Intangible, to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment received by it or as
to the sufficiency of any performance by any party thereunder, to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts that may have been assigned to it or to which it may be
entitled at any time or times.
SECTION 5.3 PLEDGED COLLATERAL
(a) During the continuance of an Event of Default, upon notice by
either Collateral Agent to the relevant Grantor or Grantors, (i) each Collateral
Agent shall have the right to receive any Proceeds of the Pledged Collateral and
turn them over to the Applicable Collateral Agent as provided in SECTION 5.4
(PROCEEDS TURNED OVER TO APPLICABLE COLLATERAL AGENT) for the
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Applicable Collateral Agent to make application thereof to the Obligations in
the order set forth in the Credit Agreement and (ii) each Collateral Agent or
its nominee may exercise (A) any voting, consent, corporate and other right
pertaining to the Pledged Collateral at any meeting of shareholders, partners or
members, as the case may be, of the relevant issuer or issuers of Pledged
Collateral or otherwise and (B) any right of conversion, exchange and
subscription and any other right, privilege or option pertaining to the Pledged
Collateral as if it were the absolute owner thereof (including the right to
exchange at its discretion any of the Pledged Collateral upon the merger,
amalgamation, consolidation, reorganization, recapitalization or other
fundamental change in the corporate or equivalent structure of any issuer of
Pledged Stock, the right to deposit and deliver any Pledged Collateral with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as each Collateral Agent may reasonably determine),
all without liability except to account for property actually received by it;
PROVIDED, HOWEVER, that no Collateral Agent shall have any duty to any Grantor
to exercise any such right, privilege or option and no Collateral Agent shall be
responsible for any failure to do so or delay in so doing.
(b) In order to permit each Collateral Agent to exercise the voting
and other consensual rights that it may be entitled to exercise pursuant hereto
and to receive all dividends and other distributions that it may be entitled to
receive hereunder, (i) each Grantor shall promptly execute and deliver (or cause
to be executed and delivered) to Collateral Agent all such proxies, dividend
payment orders and other instruments as the Applicable Collateral Agent may from
time to time reasonably request and (ii) without limiting the effect of CLAUSE
(i) above, such Grantor hereby grants to each Collateral Agent an irrevocable
proxy to vote all or any part of the Pledged Collateral and to exercise all
other rights, powers, privileges and remedies to which a holder of the Pledged
Collateral would be entitled (including giving or withholding written consents
of shareholders, partners or members, as the case may be, calling special
meetings of shareholders, partners or members, as the case may be, and voting at
such meetings), which proxy shall be effective, automatically and without the
necessity of any action (including any transfer of any Pledged Collateral on the
record books of the issuer thereof) by any other person (including the issuer of
such Pledged Collateral or any officer or agent thereof) during the continuance
of an Event of Default and which proxy shall only terminate (x) in the case of
the Administrative Agent, upon the payment in full of the First-Priority Secured
Obligations and (y) in the case of the Tranche C Agent, upon the payment in full
of the Tranche C Obligations.
(c) Each Grantor hereby expressly authorizes and instructs each
issuer of any Pledged Collateral pledged hereunder by such Grantor to (i) comply
with any instruction received by it from any Collateral Agent in writing that
(A) states that an Event of Default has occurred and is continuing and that is
not prohibited from giving such instruction pursuant to the Intercreditor
Agreement and (B) is otherwise in accordance with the terms of this Agreement,
without any other or further instructions from such Grantor, and each Grantor
agrees that such issuer shall be fully protected in so complying and (ii) unless
otherwise expressly provided hereby, pay any dividend or other payment with
respect to the Pledged Collateral directly to such Collateral Agent.
SECTION 5.4 PROCEEDS TURNED OVER TO APPLICABLE COLLATERAL AGENT
Unless otherwise expressly provided in the Credit Agreement or the
Intercreditor Agreement, all Proceeds received by either Collateral Agent
hereunder in cash or Cash Equivalents shall be turned over to the Applicable
Collateral Agent and held by the Applicable Collateral Agent in a Cash
Collateral Account; PROVIDED, HOWEVER, that amounts provided as cash
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collateral for Letters of Credit shall continue to be held by the Administrative
Agent. All Proceeds while held by the Applicable Collateral Agent in a Cash
Collateral Account (or by such Grantor in trust for the Applicable Collateral
Agent) shall continue to be held by the Applicable Collateral Agent as
collateral security for the Secured Obligations and shall not constitute payment
thereof until applied as provided in the Intercreditor Agreement.
SECTION 5.5 REGISTRATION RIGHTS
(a) If any Collateral Agent shall determine (and be permitted under
the Intercreditor Agreement) to exercise its rights to sell any the Pledged
Collateral pursuant to SECTION 5.1 (CODE AND OTHER REMEDIES), and if in the
opinion of such Collateral Agent it is necessary or advisable to have the
Pledged Collateral, or any portion thereof to be registered under the provisions
of the Securities Act, the relevant Grantor shall cause the issuer thereof to
(i) execute and deliver, and cause the directors and officers of such issuer to
execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts as may be, in the opinion of such Collateral Agent,
necessary or advisable to register the Pledged Collateral, or that portion
thereof to be sold, under the provisions of the Securities Act, (ii) use its
best efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of one year from the date of the
first public offering of the Pledged Collateral, or that portion thereof to be
sold and (iii) make all amendments thereto or to the related prospectus that, in
the opinion of such Collateral Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. Each
Grantor agrees to cause such issuer to comply with the provisions of the
securities or "Blue Sky" laws of any jurisdiction that such Collateral Agent
shall designate and to make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) satisfying the
provisions of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that each Collateral Agent may be
unable to effect a public sale of any Pledged Collateral by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise or may determine that a public sale is impracticable or not
commercially reasonable and, accordingly, may resort to one or more private
sales thereof to a restricted group of purchasers that shall be obliged to
agree, among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. No Collateral
Agent shall be under any obligation to delay a sale of any Pledged Collateral
for the period of time necessary to permit the issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such issuer would agree to do so.
(c) Each Grantor agrees to use commercially reasonable efforts to
do or cause to be done all such other acts as may be necessary to make such sale
or sales of all or any portion of the Pledged Collateral pursuant to this
SECTION 5.5 valid and binding and in compliance with all other applicable
Requirements of Law. Each Grantor further agrees that a breach of any covenant
contained in this SECTION 5.5 will cause irreparable injury to each Collateral
Agent and other Secured Parties, that the Collateral Agents and the other
Secured Parties have no adequate remedy at law in respect of such breach and, as
a consequence, that each and every covenant contained in this SECTION 5.5 shall
be specifically enforceable against such Grantor, and such
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Grantor hereby waives, to the fullest extent permitted by law, and agrees not to
assert any defense against an action for specific performance of such covenants
except for a defense that no Event of Default has occurred under the Credit
Agreement or that the Secured Obligations have been paid in full or that such
covenants have been fully performed.
SECTION 5.6 DEFICIENCY
Each Grantor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay the
Secured Obligations and the reasonable fees and out-of-pocket disbursements of
any attorney employed by either Collateral Agent or any other Secured Party to
collect such deficiency.
ARTICLE VI THE COLLATERAL AGENTS
SECTION 6.1 COLLATERAL AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT
(a) Until such time as all Secured Obligations shall have been paid
in full, each Grantor hereby irrevocably constitutes and appoints each
Collateral Agent and any officer or agent of either of them, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any appropriate action and to execute any document or
instrument that may be necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing, each Grantor
hereby gives each Collateral Agent the power and right, on behalf of such
Grantor, without notice to or assent by such Grantor, to do any of the
following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any check, draft, note, acceptance or
other instrument for the payment of moneys due under any Account or General
Intangible or with respect to any other Collateral and file any claim or
take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by such Collateral Agent for the purpose of
collecting any such moneys due under any Account or General Intangible or
with respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver,
and have recorded, any agreement, instrument, document or paper as such
Collateral Agent may request to evidence such Collateral Agent's security
interests in such Intellectual Property and the goodwill and General
Intangibles of such Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repair or pay any insurance
called for by the terms of this Agreement (including all or any part of the
premiums therefor and the costs thereof);
(iv) execute, in connection with any sale provided for in SECTION
5.1 (CODE AND OTHER REMEDIES) or 5.5 (REGISTRATION RIGHTS), any
endorsement, assignment or other instrument of conveyance or transfer with
respect to the Collateral; or
(v) (A) direct any party liable for any payment under any
Collateral to make payment of any moneys due or to become due thereunder
directly to such Collateral
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PLEDGE AND SECURITY AGREEMENT
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Agent or as such Collateral Agent shall direct, (B) ask or demand for,
collect, and receive payment of and receipt for, any moneys, claims and
other amounts due or to become due at any time in respect of or arising out
of any Collateral, (C) sign and indorse any invoice, freight or express
bill, bill of lading, storage or warehouse receipt, draft against debtors,
assignment, verification, notice and other document in connection with any
Collateral, (D) commence and prosecute any suit, action or proceeding at
law or in equity in any court of competent jurisdiction to collect any
Collateral and to enforce any other right in respect of any Collateral, (E)
defend any suit, action or proceeding brought against such Grantor with
respect to any Collateral, (F) settle, compromise or adjust any such suit,
action or proceeding and, in connection therewith, give such discharges or
releases as such Collateral Agent may deem appropriate, (G) assign any
Copyright, Patent or Trademark (along with the goodwill of the business to
which any such Trademark pertains) throughout the world for such term or
terms, on such conditions, and in such manner as such Collateral Agent
shall in its sole discretion determine, including the execution and filing
of any document necessary to effectuate or record such assignment and (H)
generally, sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any Collateral as fully and completely as though such
Collateral Agent were the absolute owner thereof for all purposes, and do,
at such Collateral Agent's option and such Grantor's expense, at any time,
or from time to time, all acts and things that such Collateral Agent deems
necessary to protect, preserve or realize upon the Collateral and the
Collateral Agents' and the other Secured Parties' security interests
therein and to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do.
Anything in this CLAUSE (a) to the contrary notwithstanding, each Collateral
Agent agrees that it shall not exercise any right under the power of attorney
provided for in this CLAUSE (a) unless an Event of Default shall be continuing
and such exercise shall be permitted pursuant to the Intercreditor Agreement.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, each Collateral Agent, at its option, but without
any obligation so to do, may perform or comply, or otherwise cause performance
or compliance, with such agreement.
(c) The expenses of either Collateral Agent incurred in connection
with actions undertaken as provided in this SECTION 6.1, together with interest
thereon at a rate per annum equal to the rate per annum at which interest would
then be payable on past due Revolving Loans that are Base Rate Loans under the
Credit Agreement, from the date of payment by such Collateral Agent to the date
reimbursed by the relevant Grantor, shall be payable by such Grantor to such
Collateral Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
SECTION 6.2 DUTY OF COLLATERAL AGENTS
Each Collateral Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession shall
be to deal with it in the same manner as such Collateral Agent deals with
similar property for its own account. No such Collateral
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PLEDGE AND SECURITY AGREEMENT
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Agent and no other Secured Party, nor any of their respective officers,
directors, employees or agents, shall be liable for failure to demand, collect
or realize upon any Collateral or for any delay in doing so or shall be under
any obligation to sell or otherwise dispose of any Collateral upon the request
of any Grantor or any other Person or to take any other action whatsoever with
regard to any Collateral. The powers conferred on any Collateral Agent hereunder
are solely to protect such Collateral Agent's interest in the Collateral and
shall not impose any duty upon any Collateral Agent or any other Secured Party
to exercise any such powers. The Collateral Agents and the other Secured Parties
shall be accountable only for amounts that they actually receive as a result of
the exercise of such powers and neither they nor any of their respective
officers, directors, employees or agents shall be responsible to any Grantor for
any act or failure to act hereunder, except for their own gross negligence, bad
faith or willful misconduct and the gross negligence, bad faith or willful
misconduct of any of their own officers, directors, employees or agents.
SECTION 6.3 AUTHORIZATION OF FINANCING STATEMENTS
Each Grantor authorizes each Collateral Agent and its Affiliates,
counsel and other representatives, at any time and from time to time, to file or
record financing statements, amendments to financing statements, and other
filing or recording documents or instruments with respect to the Collateral in
such form and in such offices as such Collateral Agent reasonably determines
appropriate to perfect the security interests of such Collateral Agent under
this Agreement, and such financing statements and amendments may described the
Collateral covered thereby as "all assets of the debtor", "all personal property
of the debtor" or words of similar effect. Each Grantor hereby also authorizes
each Collateral Agent and its Affiliates, counsel and other representatives, at
any time and from time to time, to file continuation statements with respect to
previously filed financing statements. A photographic or other reproduction of
this Agreement shall be sufficient as a financing statement or other filing or
recording document or instrument for filing or recording in any jurisdiction.
SECTION 6.4 AUTHORITY OF COLLATERAL AGENTS
Each Grantor acknowledges that the rights and responsibilities of each
Collateral Agent under this Agreement with respect to any action taken by either
of them or the exercise or non-exercise by such Collateral Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between such Collateral
Agent and the other Secured Parties, be governed by the Credit Agreement, the
Intercreditor Agreement and by such other agreements with respect thereto as may
exist from time to time among them, but, as between such Collateral Agent and
the Grantors, such Collateral Agent shall be conclusively presumed to be acting
as agent for the other Secured Parties it represents as collateral agent with
full and valid authority so to act or refrain from acting, and no Grantor shall
be under any obligation, or entitlement, to make any inquiry respecting such
authority. In the event of any conflict between this Agreement and the
Intercreditor Agreement, the Intercreditor Agreement shall control, and no
right, power, or remedy granted to any Collateral Agent hereunder or under any
other Loan Document shall be exercised by such Collateral Agent in contravention
of the Intercreditor Agreement.
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ARTICLE VII MISCELLANEOUS
SECTION 7.1 SUCCESSION OF THE TRANCHE C AGENT TO THE RIGHTS OF
ADMINISTRATIVE AGENT.
Upon the payment in full of the First-Priority Secured Obligations,
the rights of the Administrative Agent (in its capacity as collateral agent for
the First-Priority Secured Parties other than in respect of outstanding Letters
of Credit and cash collateral provided in respect thereof and for related fees,
costs, indemnification, and expenses) and the rights of the First-Priority
Secured Parties under this Agreement shall be deemed to have been assigned to
the Tranche C Agent and the Tranche C Secured Parties, respectively, and the
Tranche C Agent and the Tranche C Secured Parties shall be entitled to all of
the benefits of the Administrative Agent (in its capacity as collateral agent
for the First-Priority Secured Parties) and the First-Priority Secured Parties,
respectively.
SECTION 7.2 AMENDMENTS IN WRITING
None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise modified except in accordance with SECTION
11.1 (AMENDMENTS, WAIVERS, ETC.) of the Credit Agreement; PROVIDED, HOWEVER,
that annexes to this Agreement may be supplemented (but no existing provisions
may be modified and no Collateral may be released) through Pledge Amendments and
Joinder Agreements, in substantially the form of ANNEX 3 (FORM OF PLEDGE
AMENDMENT) and ANNEX 4 (FORM OF JOINDER AGREEMENT) respectively, in each case
duly executed by Collateral Agent and each Grantor directly affected thereby.
SECTION 7.3 NOTICES
All notices, requests and demands to or upon any Collateral Agent or
any Grantor hereunder shall be effected in the manner provided for in SECTION
11.8 (NOTICES, ETC.) of the Credit Agreement; PROVIDED, HOWEVER, that any such
notice, request or demand to or upon any Grantor shall be addressed to the
Borrower's notice address set forth in such SECTION 11.8.
SECTION 7.4 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES
No Collateral Agent and no other Secured Party shall by any act
(except by a written instrument pursuant to SECTION 7.2 (AMENDMENTS IN
WRITING)), delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any Default or Event of
Default. No failure to exercise, nor any delay in exercising, on the part of any
Collateral Agent or any other Secured Party, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by any Collateral Agent or any other Secured Party of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy that such Collateral Agent or such other Secured Party would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
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SECTION 7.5 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the successors and assigns of
each Grantor and shall inure to the benefit of each Collateral Agent and each
other Secured Party and their successors and assigns; PROVIDED, HOWEVER, that no
Grantor may assign, transfer or delegate any of its rights or obligations under
this Agreement without the prior written consent of the Applicable Collateral
Agent, except pursuant to mergers, liquidations or dissolutions permitted
pursuant to SECTION 8.7 (RESTRICTIONS ON FUNDAMENTAL CHANGES, PERMITTED
ACQUISITIONS) of the Credit Agreement.
SECTION 7.6 COUNTERPARTS
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy), each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Signature pages may
be detached from multiple counterparts and attached to a single counterpart so
that all signature pages are attached to the same document. Delivery of an
executed counterpart by telecopy shall be effective as delivery of a manually
executed counterpart.
SECTION 7.7 SEVERABILITY
Any provision of this Agreement that 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.
SECTION 7.8 SECTION HEADINGS
The Article and Section titles contained in this Agreement are, and
shall be, without substantive meaning or content of any kind whatsoever and are
not part of the agreement of the parties hereto.
SECTION 7.9 ENTIRE AGREEMENT
This Agreement together with the other Loan Documents represents the
entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof.
SECTION 7.10 GOVERNING LAW
This Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.
SECTION 7.11 ADDITIONAL GRANTORS
If, pursuant to SECTION 7.11 (ADDITIONAL COLLATERAL AND GUARANTIES) of
the Credit Agreement, the Borrower or the Parent shall be required to cause any
Subsidiary of the Parent or any other Person that is not a Grantor to become a
Grantor hereunder, such Subsidiary or other
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Person shall execute and deliver to each Collateral Agent a Joinder Agreement
substantially in the form of ANNEX 4 (FORM OF JOINDER AGREEMENT) and shall
thereafter for all purposes be a party hereto and have the same rights, benefits
and obligations as a Grantor party hereto on the Closing Date.
SECTION 7.12 RELEASE OF COLLATERAL
(a) At the time provided in SECTION 5.1 (RELEASES; ENFORCEMENT BY
ADMINISTRATIVE AGENT) of the Intercreditor Agreement, the Collateral shall be
released from the Lien created hereby and this Agreement and all obligations
(other than those expressly stated to survive such termination) of each
Collateral Agent and each Grantor hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Grantors. At the request and sole
expense of any Grantor following any such termination, each Collateral Agent
shall deliver to such Grantor any Collateral of such Grantor held by such
Collateral Agent hereunder and execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such termination.
(b) If any Collateral shall be sold or disposed of by any Grantor
in a transaction permitted by the Credit Agreement, such Collateral shall be
released from the Lien created hereby to the extent provided under, and subject
to the terms and conditions set forth in, SECTION 5.1 (RELEASES; ENFORCEMENT BY
ADMINISTRATIVE AGENT) of the Intercreditor Agreement. In connection therewith,
each Collateral Agent, at the request and sole expense of the Borrower, shall
execute and deliver to the Borrower all releases or other documents, including,
without limitation, UCC termination statements, reasonably necessary or
desirable for the release of the Lien created hereby on such Collateral. At the
request and sole expense of the Borrower, a Grantor shall be released from its
obligations hereunder in the event that all the capital stock of such Grantor
shall be so sold or disposed; PROVIDED, HOWEVER, that the Borrower shall have
delivered to each Collateral Agent, at least ten Business Days prior to the date
of the proposed release, a written request for release identifying the relevant
Grantor and the terms of the sale or other disposition in reasonable detail,
including the price thereof and any expenses in connection therewith, together
with a certification by the Borrower in form and substance satisfactory to such
Collateral Agent stating that such transaction is in compliance with the Credit
Agreement and the other Loan Documents.
SECTION 7.13 REINSTATEMENT
Each Grantor further agrees that, if any payment made by any Loan
Party or other Person and applied to the Obligations is at any time annulled,
avoided, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be refunded or repaid, or the proceeds of
Collateral are required to be returned by any Secured Party to such Loan Party,
its estate, trustee, receiver or any other party, including any Grantor, under
any bankruptcy law, state or federal law, common law or equitable cause, then,
to the extent of such payment or repayment, any Lien or other Collateral
securing such liability shall be and remain in full force and effect, as fully
as if such payment had never been made or, if prior thereto the Lien granted
hereby or other Collateral securing such liability hereunder shall have been
released or terminated by virtue of such cancellation or surrender), such Lien
or other Collateral shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect any Lien or other Collateral securing the obligations of any
Grantor in respect of the amount of such payment.
28
<Page>
PLEDGE AND SECURITY AGREEMENT
PRESTIGE BRANDS, INC.
SECTION 7.14 TERMINATION
This Agreement (other than the reinstatement provisions of SECTION
7.13 (REINSTATEMENT)) shall terminate upon the payment in full of the Secured
Obligations.
[SIGNATURE PAGES FOLLOW]
29
<Page>
IN WITNESS WHEREOF, each of the undersigned has caused this Pledge and
Security Agreement to be duly executed and delivered as of the date first above
written.
PRESTIGE BRANDS, INC.
AS GRANTOR
By: /S/ PETER J. ANDERSON
-----------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
PRESTIGE BRANDS INTERNATIONAL, LLC
AS GRANTOR
By: /S/ PETER J. ANDERSON
-----------------------------------
Name: Peter J. Anderson
Title: Secretary, CFO and Vice President
BONITA BAY HOLDINGS, INC.
AS GRANTOR
By: /S/ PETER J. ANDERSON
---------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
MEDTECH HOLDINGS, INC.
AS GRANTOR
By: /S/ PETER J. ANDERSON
---------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
MEDTECH PRODUCTS, INC.
AS GRANTOR
By: /S/ PETER J. ANDERSON
---------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
[SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT FOR
PRESTIGE'S CREDIT AGREEMENT]
<Page>
PLEDGE AND SECURITY AGREEMENT
PRESTIGE BRANDS, INC.
PECOS PHARMACEUTICAL, INC.
AS GRANTOR
By: /S/ PETER J. ANDERSON
---------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
PRESTIGE ACQUISITION HOLDINGS, LLC
AS GRANTOR
By: /S/ PETER J. ANDERSON
---------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
PRESTIGE BRANDS FINANCIAL CORPORATION
AS GRANTOR
By: /S/ PETER J. ANDERSON
---------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
PRESTIGE BRANDS HOLDINGS, INC.
AS GRANTOR
By: /S/ PETER J. ANDERSON
---------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
PRESTIGE BRANDS INTERNATIONAL, INC.
AS GRANTOR
By: /S/ PETER J. ANDERSON
---------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
[SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT FOR
PRESTIGE'S CREDIT AGREEMENT]
<Page>
PLEDGE AND SECURITY AGREEMENT
PRESTIGE BRANDS, INC.
PRESTIGE HOUSEHOLD BRANDS, INC.
AS GRANTOR
By: /S/ PETER J. ANDERSON
---------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
PRESTIGE HOUSEHOLD HOLDINGS, INC.
AS GRANTOR
By: /S/ PETER J. ANDERSON
-----------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
PRESTIGE PERSONAL CARE, INC.
AS GRANTOR
By: /S/ PETER J. ANDERSON
-----------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
PRESTIGE PERSONAL CARE HOLDINGS, INC.
AS GRANTOR
By: /S/ PETER J. ANDERSON
-----------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
PRESTIGE PRODUCTS HOLDINGS, INC.
AS GRANTOR
By: /S/ PETER J. ANDERSON
-----------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
[SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT FOR
PRESTIGE'S CREDIT AGREEMENT]
<Page>
PLEDGE AND SECURITY AGREEMENT
PRESTIGE BRANDS, INC.
THE COMET PRODUCTS CORPORATION
AS GRANTOR
By: /S/ PETER J. ANDERSON
-----------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
THE CUTEX COMPANY
AS GRANTOR
By: /S/ PETER J. ANDERSON
-----------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
THE DENOREX COMPANY
AS GRANTOR
By: /S/ PETER J. ANDERSON
-----------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
THE SPIC AND SPAN COMPANY
AS GRANTOR
By: /S/ PETER J. ANDERSON
-----------------------------------
Name: Peter J. Anderson
Title: Secretary, Treasurer and
Vice President
[SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT FOR
PRESTIGE'S CREDIT AGREEMENT]
<Page>
ACCEPTED AND AGREED
as of the date first above written:
CITICORP NORTH AMERICA, INC.
AS ADMINISTRATIVE AGENT
and TRANCHE C AGENT
By: /S/ STEPHEN SELLHAUSEN
-------------------------
Name: Stephen Sellhausen
Title: Vice President
[SIGNATURE PAGE TO PLEDGE AND SECURITY AGREEMENT FOR
PRESTIGE'S CREDIT AGREEMENT]
<Page>
ANNEX 1
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF DEPOSIT ACCOUNT CONTROL AGREEMENT
______________ __, ___
[Financial Institution]
[Address]
Ladies and Gentlemen:
Reference is made to account no. [__________] maintained with you (the
"BANK") by [ ] (the "COMPANY"), [as borrower] [as guarantor] into which funds
are deposited from time to time (the "ACCOUNT"). The Company has entered into a
Pledge and Security Agreement, dated as of April 6, 2004 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"PLEDGE AND SECURITY AGREEMENT"), among the Company, certain of its subsidiaries
and/or affiliates party thereto and Citicorp North America, Inc. as
administrative agent for the Lenders and the Issuers and collateral agent for
the First-Priority Secured Parties (in such capacity, the "ADMINISTRATIVE
AGENT"), and as collateral agent for the Tranche C Secured Parties (in such
capacity, the "TRANCHE C AGENT" and, together with the Administrative Agent, the
"COLLATERAL AGENTS").
Pursuant to the Credit Agreement and related documents, the Company
has granted to the Collateral Agents, for the benefit of the Secured Parties,
security interests in certain property of the Company, including, among other
things, accounts, inventory, equipment, instruments, general intangibles and all
proceeds thereof (the "COLLATERAL"). Payments with respect to the Collateral are
or hereafter may be made to the Account. You, the Company and the Collateral
Agents are entering into this letter agreement to perfect the security interests
of the Collateral Agents in the Account.
The Company hereby transfers to each Collateral Agent control of the
Account and all funds and other property on deposit therein. By your execution
of this letter agreement, you (i) agree that you shall comply with instructions
originated by either Collateral Agent directing disposition of the funds in the
Account without further consent of the Company and (ii) acknowledge and agree
that each Collateral Agent now has exclusive control of the Account, that all
funds and other property on deposit in the Account shall be transferred to the
Collateral Agents as provided herein, that the Account is being maintained by
you for the benefit of each Collateral Agent and that all amounts and other
property therein are held by you as custodian for each Collateral Agent.
Except as provided in CLAUSE (d) below, the Account shall not be
subject to deduction, set-off, banker's lien, counterclaim, defense, recoupment
or any other right in favor of any person or entity other than each Collateral
Agent. By your execution of this letter agreement you also acknowledge that, as
of the date hereof, you have received no notice of any other pledge or
assignment of the Account and have not executed any agreements with third
parties covering the disposition of funds in the Account. You agree with the
Collateral Agents as follows:
(a) Notwithstanding anything to the contrary or any other agreement
relating to the Account, the Account is and shall be maintained for the benefit
of the Collateral
A1-1
<Page>
Agents and shall be entitled "CITICORP NORTH AMERICA, INC. [NAME OF
COMPANY] ACCOUNT" and shall be subject to written instructions only from an
authorized officer of either Collateral Agent.
(b) Prior to the delivery to you of a written notice from either
Collateral Agent in the form of EXHIBIT A (FORM OF COLLATERAL AGENT
BLOCKAGE NOTICE) hereto (a "BLOCKAGE NOTICE"), you are authorized to
transfer to the Company, in same day funds, on each business day, the
entire balance in the Account to the following account:
ABA Number:_____________________________
[name and address of Company's bank]
Account Name:___________________________
Concentration Account
Account Number:_________________________
Reference:______________________________
Attn:___________________________________
or to such other account as the Company may from time to time designate in
writing.
(c) From and after the delivery to you of a Blockage Notice, you
shall transfer (by wire transfer or other method of transfer mutually
acceptable to you and the Collateral Agent that sent such Blockage Notice)
to the account of such Collateral Agent set forth in the Blockage Notice or
to such other account as such Collateral Agent may otherwise designate in
writing after the delivery of such Blockage Notice (the "COLLATERAL AGENT
CONCENTRATION ACCOUNT").
(d) All customary service charges and fees with respect to the
Account shall be debited to the Account. In the event insufficient funds
remain in the Account to cover such customary service charges and fees, the
Company shall pay and indemnify you for the amounts of such customary
service charges and fees.
This letter agreement shall be binding upon and shall inure to the
benefit of you, the Company, each Collateral Agent, the Secured Parties referred
to in the Pledge and Security Agreement and the respective successors,
transferees and assigns of any of the foregoing. This letter agreement may not
be modified except upon the mutual consent of the Applicable Collateral Agent,
the Company and you. You may terminate the letter agreement only upon 30 days'
prior written notice to the Company and each Collateral Agent. Each Collateral
Agent may terminate this letter agreement upon 10 days' prior written notice to
you and the Company. Upon such termination you shall close the Account and
transfer all funds in the Account to the Collateral Agent Concentration Account
or as otherwise directed by either Collateral Agent. After any such termination,
you shall nonetheless remain obligated promptly to transfer to the Collateral
Agent Concentration Account or as either Collateral Agent may otherwise direct
all funds and other property received in respect of the Account.
This letter agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement. Delivery of an executed counterpart
of a signature page to this letter agreement by
A1-2
<Page>
telecopier shall be effective as delivery of a manually executed counterpart of
this letter agreement.
This letter agreement supersedes all prior agreements, oral or
written, with respect to the subject matter hereof and may not be amended,
modified or supplemented except by a writing signed by the Administrative Agent,
the Company and you. You have not, and, without the prior consent of both
Collateral Agents and the Company, you shall not, agree with any third party to
comply with instructions or other directions concerning the Account or the
disposition of funds in the Account originated by such third party.
The Company hereby agrees to indemnify and hold you, your directors,
officers, agents and employees harmless against all claims, causes of action,
liabilities, lawsuits, demands and damages, including, without limitation, all
court costs and reasonable attorney fees, in each case in any way related to or
arising out of or in connection with this letter agreement or any action taken
or not taken pursuant hereto, except to the extent caused by your gross
negligence or willful misconduct.
This letter agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
A1-3
<Page>
Upon acceptance of this letter agreement it shall be the valid and
binding obligation of the Company, each Collateral Agent, and you, in accordance
with its terms.
Very truly yours,
[NAME OF COMPANY]
By:
-----------------------------------
Name:
Title:
CITICORP NORTH AMERICA, INC.,
AS ADMINISTRATIVE AGENT and
TRANCHE C AGENT
By:
-----------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED
as of the date first above written:
[FINANCIAL INSTITUTION]
By:
------------------------------
Name:
Title:
[SIGNATURE PAGE TO DEPOSIT ACCOUNT CONTROL ACCOUNT AGREEMENT]
<Page>
ANNEX 2
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF SECURITIES ACCOUNT CONTROL AGREEMENT
EXHIBIT A
TO
DEPOSIT ACCOUNT CONTROL AGREEMENT
FORM OF COLLATERAL AGENT BLOCKAGE NOTICE
[Financial Institution]
[Address]
Re: Account No. ____________________ (the "ACCOUNT")
Ladies and Gentlemen:
Reference is made to the Account and that certain Deposit Account
Control Agreement dated __________ __, 20__ among you, Citicorp North America,
Inc., as Administrative Agent [(the "ADMINISTRATIVE AGENT")] and as Tranche C
Agent [(the "TRANCHE C AGENt")], and [_____________] (the "DEPOSIT ACCOUNT
CONTROL AGREEMENT"). Capitalized terms used herein shall have the meanings given
to them in the Deposit Account Control Agreement.
The [Administrative Agent] [Tranche C Agent] hereby notifies you that,
from and after the date of this notice, you are hereby directed to transfer (by
wire transfer or other method of transfer mutually acceptable to you and the
[Administrative Agent] [Tranche C Agent]) to the [Administrative Agent] [Tranche
C Agent], in same day funds, on each business day, the entire balance in the
Account to the following account:
ABA Number:_________________________
Name of Bank:
Address:
Account Name:_______________________
Account Number:_____________________
Reference:__________________________
Attn:_______________________________
or to such other account as the [Administrative Agent] [Tranche C Agent] may
from time to time designate in writing.
Very truly yours,
A2-1
<Page>
CITICORP NORTH AMERICA, INC.,
[AS ADMINISTRATIVE AGENT]
[AS TRANCHE C AGENT]
By:
----------------------------------------
Name:
Title:
A2-2
<Page>
[Name and Address
of Approved Securities
Intermediary]
_____________ __, 20__
Ladies and Gentlemen:
The undersigned ___________________ (the "PLEDGOR") together with
certain of its affiliates are party to a Pledge and Security Agreement, dated as
of April 6, 2004, in favor of Citicorp North America, Inc., as administrative
agent for the First-Priority Secured Parties (the "ADMINISTRATIVE AGENT") and as
agent for the Tranche C Secured Parties (the "TRANCHE C AGENT," and, together
with the Administrative Agent, the "COLLATERAL AGENTS") referred to therein
pursuant to which security interests are granted by the Pledgor in all present
and future Assets (hereinafter defined) in Account No. _______ of the Pledgor
(the "PLEDGE").
In connection therewith, the Pledgor hereby instructs you (the
"APPROVED SECURITIES INTERMEDIARY") to do all of the following:
1. maintain the Account, as "____________- Citicorp North America,
Inc. Control Account";
2. hold in the Account the assets, including, without limitation, all
financial assets, securities, security entitlements and all other
property and rights now or hereafter received in such Account
(collectively the "ASSETS"), including, without limitation, those
assets listed on SCHEDULE A (LIST OF ASSETS) attached hereto and made
a part hereof;
3. provide to each Collateral Agent with a duplicate copy to the Pledgor,
a monthly statement of Assets and a confirmation statement of each
transaction effected in the Account after such transaction is
effected; and
4. honor only the instructions or entitlement orders (within the meaning
of Section 8-102 of the UCC (as defined below) (the "ENTITLEMENT
ORDERS") in regard to or in connection with the Account given by an
Authorized Officer of the Collateral Agent, except as provided in the
following sentence. Until such time as any Collateral Agent gives a
written notice in the form of EXHIBIT A hereto to the Approved
Securities Intermediary that the Pledgor's rights under this sentence
have been terminated (on which notice the Approved Securities
Intermediary may rely exclusively), the Pledgor acting through an
Authorized Officer of the Pledgor may (a) exercise any voting right
that it may have with respect to any Asset, (b) give Entitlement
Orders and otherwise give instructions to enter into purchase or sale
transactions in the Account and (c) withdraw and receive for its own
use all regularly scheduled interest and dividends paid with respect
to the Assets and all cash proceeds of any sale of Assets ("PERMITTED
A2-3
<Page>
WITHDRAWALS"); PROVIDED, HOWEVER, that, unless both Collateral Agents
have consented to the specific transaction, the Pledgor shall not
instruct the Approved Securities Intermediary to deliver and, except
as may be required by law or by court order, the Approved Securities
Intermediary shall not deliver, cash, securities, or proceeds from the
sale of, or distributions on, such securities out of the Account to
the Pledgor or to any other person or entity other than Permitted
Withdrawals.
By its signature below, the Approved Securities Intermediary agrees to
comply with the Entitlement Orders and instructions of an Authorized Officer of
the Collateral Agent (including, without limitation, any instruction with
respect to sales, trades, transfers and withdrawals of cash or other of the
Assets) without the further consent of the Pledgor or any other person (it being
understood and agreed by the Pledgor that the Approved Securities Intermediary
shall have no duty or obligation whatsoever to have knowledge of the terms of
the Pledge and Security Agreement or to determine whether or not an event of
default exists thereunder). The Pledgor hereby agrees to indemnify and hold
harmless the Approved Securities Intermediary, its affiliates, officers and
employees from and against all claims, causes of action, liabilities, lawsuits,
demands and damages, including, without limitation, all court costs and
reasonable attorney's fees, that may result by reason of the Approved Securities
Intermediary complying with such instructions of any Collateral Agent.
The Authorized Officer of the Collateral Agent who shall give oral
instructions hereunder shall confirm the same in writing to the Approved
Securities Intermediary within five days after such oral instructions are given.
For the purpose of this Agreement, the term "AUTHORIZED OFFICER OF THE
PLEDGOR" shall refer in the singular to ___________________ or
___________________ (each of whom is, on the date hereof, an officer or director
of the Pledgor) and "AUTHORIZED OFFICER OF THE COLLATERAL AGENT" shall refer in
the singular to any person who is a vice president or managing director of
either Collateral Agent. In the event that the Pledgor shall find it advisable
to designate a replacement for any Authorized Officer of the Pledgor, written
notice of any such replacement shall be given to the Approved Securities
Intermediary and each Collateral Agent.
Except with respect to the obligations and duties as set forth herein,
this Agreement shall not impose or create any obligation or duty upon the
Approved Securities Intermediary greater than or in addition to the customary
and usual obligations and duties of the Approved Securities Intermediary to the
Pledgor.
As long as the Assets are pledged to either Collateral Agent, (i) the
Approved Securities Intermediary shall not invade the Assets to cover margin
debits or calls in any other account of the Pledgor and (ii) the Approved
Securities Intermediary agrees that, except for liens resulting from customary
commissions, fees, or charges based upon transactions in the Account, it
subordinates in favor of the Collateral Agents, any security interest, lien or
right of setoff the Approved Securities Intermediary may have. The Approved
Securities Intermediary acknowledges that it has not received notice of any
other security interest in the Account or the Assets. In the event any such
notice is received, the Approved Securities Intermediary shall promptly notify
each Collateral Agent. The Pledgor herein represents that the Assets are free
and clear of any lien or encumbrance and agrees that, with the exception of the
security interests granted to the Collateral Agents, no lien or encumbrance
shall be placed by it on the Assets
A2-4
<Page>
without the express written consent of each Collateral Agent, and the Approved
Securities Intermediary.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns and it and the rights
and obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, and the law of the Approved Securities
Intermediary's jurisdiction for the purposes of Section 8-110 of the Uniform
Commercial Code in effect in the State of New York (the "UCC") shall be, the law
of the State of New York.
The Approved Securities Intermediary shall treat all property at any
time held by the Approved Securities Intermediary in the Account as Financial
Assets within the meaning of the UCC. The Approved Securities Intermediary
acknowledges that this Agreement constitutes written notification to the
Approved Securities Intermediary, pursuant to the UCC and any applicable federal
regulations for the Federal Reserve Book Entry System, of the Collateral Agents'
security interests in the Assets. The Pledgor, the Collateral Agents and
Approved Securities Intermediary are entering into this Agreement to provide for
each Collateral Agent's control of the Assets and to confirm the first priority
security interest of the Administrative Agent in the Assets and the second
priority security interest of the Tranche C Agent in the Assets.
If any term or provision of this Agreement is determined to be invalid
or unenforceable, the remainder of this Agreement shall be construed in all
respects as if the invalid or unenforceable term or provision were omitted. This
Agreement may not be altered or amended in any manner without the express
written consent of the Pledgor, the Collateral Agent, and the Approved
Securities Intermediary. This Agreement may be executed in any number of
counterparts, all of which shall constitute one original agreement.
The Pledgor hereby agrees to indemnify and hold you, your directors,
officers, agents and employees harmless against all claims, causes of action,
liabilities, lawsuits, demands and damages, including, without limitation, all
court costs and reasonable attorney fees, in each case in any way related to or
arising out of or in connection with this letter agreement or any action taken
or not taken pursuant hereto, except to the extent caused by your gross
negligence or willful misconduct.
This Agreement may be terminated by the Approved Securities
Intermediary upon 30 day's prior written notice to the Pledgor and the
Collateral Agents. Upon expiration of such 30-day period, the Approved
Securities Intermediary shall be under no further obligation except to hold the
Assets in accordance with the terms of this Agreement, pending receipt of
written instructions from the Pledgor and the Collateral Agents, jointly,
regarding the further disposition of the pledged Assets.
The Pledgor acknowledges that this Agreement supplements any existing
agreement of the Pledgor with the Approved Securities Intermediary and, except
as expressly provided herein, is in no way intended to abridge any right that
the Approved Securities Intermediary might otherwise have.
A2-5
<Page>
IN WITNESS WHEREOF, the Pledgor, the Administrative Agent and the
Tranche C Agent have caused this Agreement to be executed by their duly
authorized officers all as of the date first above written.
[NAME OF PLEDGOR]
By:
-----------------------------------
Name:
Title:
CITICORP NORTH AMERICA, INC.,
AS ADMINISTRATIVE AGENT and
AS TRANCHE C AGENT
By:
-----------------------------------
Name:
Title:
ACCEPTED AND AGREED
as of the date first above written:
[APPROVED FINANCIAL INTERMEDIARY]
By:
-----------------------------
Name:
Title:
[SIGNATURE PAGE TO SECURITIES ACCOUNT CONTROL AGREEMENT]
<Page>
SCHEDULE A
TO
SECURITIES ACCOUNT CONTROL AGREEMENT
PLEDGED COLLATERAL ACCOUNT NUMBER: _____________
A2-7
<Page>
EXHIBIT A
TO
SECURITIES ACCOUNT CONTROL AGREEMENT
FORM OF NOTICE OF CONTROL
[Securities Intermediary]
[Address]
Re: Account No. ____________________ (the "ACCOUNT")
Ladies and Gentlemen:
Reference is made to the Account and that certain Securities Account
Control Agreement dated __________ __, 20__ among you, Citicorp North America,
Inc., as Administrative Agent [(the "ADMINISTRATIVE AGENT")] and as Tranche C
Agent [(the "TRANCHE C AGENT")], and _____________ (the "PLEDGOR") (such
agreement, the "SECURITIES ACCOUNT CONTROL AGREEMENT"). Capitalized terms used
herein shall have the meanings given to them in the Securities Account Control
Agreement.
The [Administrative Agent] [Tranche C Agent] hereby notifies you that,
from and after the date of this notice, the Pledgor's rights to give Entitlement
Orders with respect to the Account and the other rights afforded to the Pledgor
under paragraph 4 of the Securities Account Control Agreement are terminated.
From and after the delivery of this notice to you, you shall honor only the
Entitlement Orders in regard to or in connection with the Account and/or the
financial assets contained therein given by an Authorized Officer of the
Collateral Agent that is an officer of the [Administrative Agent] [Tranche C
Agent].
Very truly yours,
CITICORP NORTH AMERICA, INC.,
[AS ADMINISTRATIVE AGENT]
[AS TRANCHE C AGENT]
By:
-----------------------------------
Name:
Title:
A2-8
<Page>
ANNEX 3
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF PLEDGE AMENDMENT
This PLEDGE AMENDMENT, dated as of __________ __, 20__, is delivered
pursuant to SECTION 4.4(a) (PLEDGED COLLATERAL) of the Pledge and Security
Agreement, dated as of April 6, 2004, by PRESTIGE BRANDS, INC. (the "BORROWER"),
the undersigned Grantor and the other subsidiaries and affiliates of the
Borrower from time to time party thereto as Grantors in favor of Citicorp North
America, Inc., as agent for the First-Priority Secured Parties referred to
therein, and as collateral agent for the Tranche C Secured Parties referred to
therein (the "PLEDGE AND SECURITY AGREEMENT") and the undersigned hereby agrees
that this Pledge Amendment may be attached to the Pledge and Security Agreement
and that the Pledged Collateral listed on this Pledge Amendment shall be and
become part of the Collateral referred to in the Pledge and Security Agreement
and shall secure all Secured Obligations of the undersigned. Capitalized terms
used herein but not defined herein are used herein with the meaning given them
in the Pledge and Security Agreement.
[GRANTOR]
By:
-----------------------------------
Name:
Title:
PLEDGED STOCK
<Table>
<Caption>
NUMBER OF
SHARES,
UNITS OR
ISSUER CLASS CERTIFICATE NO(S). PAR VALUE INTERESTS
-------- -------- ------------------ ------------ -------------
</Table>
PLEDGED DEBT INSTRUMENTS
<Table>
<Caption>
PRINCIPAL
ISSUER DESCRIPTION OF DEBT CERTIFICATE NO(S). FINAL MATURITY AMOUNT
-------- --------------------- ------------------ -------------- -------------
</Table>
A3-1
<Page>
ACKNOWLEDGED AND AGREED
as of the date first above written:
CITICORP NORTH AMERICA, INC.,
AS ADMINISTRATIVE AGENT and
AS TRANCHE C AGENT
By:
------------------------------
Name:
Title:
A3-2
<Page>
ANNEX 4
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT, dated as of _________ __, 20__, is delivered
pursuant to SECTION 7.11 (ADDITIONAL GRANTORS) of the Pledge and Security
Agreement, dated as of April 6, 2004, by PRESTIGE BRANDS, INC. (the "BORROWER")
and the subsidiaries and affiliates of the Borrower listed on the signature
pages thereof in favor of the Citicorp North America, Inc., as agent for the
First-Priority Secured Parties (the "ADMINISTRATIVE AGENT") and as collateral
agent for the Tranche C Secured Parties (the "TRANCHE C AGENT") referred to
therein (the "PLEDGE AND SECURITY AGREEMENT"). Capitalized terms used herein but
not defined herein are used with the meanings given them in the Pledge and
Security Agreement.
By executing and delivering this Joinder Agreement, the undersigned,
as provided in SECTION 7.11 (ADDITIONAL GRANTORS) of the Pledge and Security
Agreement, hereby becomes a party to the Pledge and Security Agreement as a
Grantor thereunder with the same force and effect as if originally named as a
Grantor therein and, without limiting the generality of the foregoing, hereby
grants to the Administrative Agent, as collateral security for the full, prompt
and complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the First-Priority Secured Obligations of the
undersigned, hereby collaterally assigns, mortgages, pledges and hypothecates to
the Administrative Agent and grants to the Administrative Agent a Lien on and
security interest in, all of its right, title and interest in, to and under the
Collateral of the undersigned and expressly assumes all obligations and
liabilities of a Grantor thereunder. The undersigned also hereby grants to the
Tranche C Agent, as collateral security for the full, prompt and complete
payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of the Tranche C Secured Obligations of the undersigned, hereby
collaterally assigns, mortgages, pledges and hypothecates to the Tranche C Agent
and grants to the Tranche C Agent a Lien on and security interest in, all of its
right, title and interest in, to and under the Collateral of the undersigned and
expressly assumes all obligations and liabilities of a Grantor thereunder.
The information set forth in ANNEX 1-A is hereby added to the
information set forth in SCHEDULES 1 through 7 to the Pledge and Security
Agreement. [By acknowledging and agreeing to this Joinder Agreement, the
undersigned hereby agree that this Joinder Agreement may be attached to the
Pledge and Security Agreement and that the Pledged Collateral listed on ANNEX
1-A to this Pledge Amendment shall be and become part of the Collateral referred
to in the Pledge and Security Agreement and shall secure all Secured Obligations
of the undersigned.](1)
The undersigned hereby represents and warrants that each of the
representations and warranties contained in ARTICLE III (REPRESENTATIONS AND
WARRANTIES) of the Pledge and Security Agreement applicable to it is true and
correct on and as the date hereof as if made on and as of such date.
- ----------
(1) Insert to pledge Stock of the new Subsidiary without doing a Pledge
Amendment.
A4-1
<Page>
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement
to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:
-----------------------------------
Name:
Title:
A4-2
<Page>
ACKNOWLEDGED AND AGREED
AS OF THE DATE FIRST ABOVE WRITTEN:
[EACH GRANTOR PLEDGING
ADDITIONAL COLLATERAL]
BY:
-----------------------------
NAME:
TITLE:
CITICORP NORTH AMERICA, INC.,
AS ADMINISTRATIVE AGENT AND
AS TRANCHE C AGENT
BY:
-----------------------------
NAME:
TITLE:
A4-3
<Page>
ANNEX 5
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF SHORT FORM INTELLECTUAL PROPERTY SECURITY AGREEMENT(2)
[COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT, dated as of
_________ __, 20__, by each of the entities listed on the signature pages hereof
[or that becomes a party hereto pursuant to SECTION 7.11 (ADDITIONAL GRANTORS)
of the Security Agreement referred to below] (each a "GRANTOR" and,
collectively, the "GRANTORS"), in favor of Citicorp North America, Inc.
("CNAI"), [as agent for the First-Priority Secured Parties (the "ADMINISTRATIVE
AGENT")] [as collateral agent for the Tranche C Secured Parties (the "TRANCHE C
AGENT")] (as defined in the Credit Agreement referred to below).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of April 6, 2004
(as the same may be amended, restated, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT"), among Prestige Brands, Inc. (the
"BORROWER"), Prestige Brands International, LLC, a Delaware limited liability
company, the Lenders and Issuers party thereto and CNAI, [as agent for the
First-Priority Secured Parties (the "ADMINISTRATIVE AGENT")] [as collateral
agent for the Tranche C Secured Parties (the "TRANCHE C AGENT")], Bank of
America, N.A., as syndication agent for the Lenders and the Issuers and Merrill
Lynch Capital, a division of Merrill Lynch Business Financial Services Inc., as
documentation agent for the Lenders and the Issuers, the Lenders and the Issuers
have severally agreed to make extensions of credit to the Borrower upon the
terms and subject to the conditions set forth therein;
WHEREAS, the Grantors other than the Borrower are party to the
Guaranty pursuant to which they have guaranteed the Obligations; and
WHEREAS, all the Grantors are party to a Pledge and Security Agreement
of even date herewith in favor of the Collateral Agents (the "SECURITY
AGREEMENT") pursuant to which the Grantors are required to execute and deliver
this [Copyright] [Patent] [Trademark] Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders, the Issuers and the Collateral Agents to enter into the Credit
Agreement and to induce the Lenders and the Issuers to make their respective
extensions of credit to the Borrower thereunder, each Grantor hereby agrees with
the [Administrative Agent] [Tranche C Agent] as follows:
SECTION 1. DEFINED TERMS
Unless otherwise defined herein, terms defined in the Credit Agreement
or in the Security Agreement and used herein have the meaning given to them in
the Credit Agreement or the Security Agreement.
SECTION 2. GRANT OF SECURITY INTEREST IN [COPYRIGHT] [TRADEMARK]
[PATENT] COLLATERAL
[Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the
- ----------
(2) Separate short form agreements should be filed relating to each Grantor's
respective copyrights, patents and trademarks.
A5-1
<Page>
Secured Obligations of such Grantor, hereby mortgages, pledges and hypothecates
to the Administrative Agent for the benefit of the First-Priority Secured
Parties, and grants to the Administrative Agent for the benefit of the
First-Priority Secured Parties a lien on and security interest in, all of its
right, title and interest in, to and under the following Collateral of such
Grantor] [Each Grantor, as collateral security for the full, prompt and complete
payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of the Tranche C Secured Obligations of such Grantor, hereby
mortgages, pledges and hypothecates to the Tranche C Agent for the benefit of
the Tranche C Secured Parties, and grants to the Tranche C Agent for the benefit
of the Tranche C Secured Parties a lien on and security interest in, all of its
right, title and interest in, to and under the following Collateral of such
Grantor] (the "[COPYRIGHT] [PATENT] [TRADEMARK] COLLATERAL"):
[(a) all of its Copyrights, including, without limitation, those
referred to on SCHEDULE I hereto;
(b) all reissues, continuations or extensions of the foregoing; and
(c) all Proceeds of the foregoing, including, without limitation,
any claim by Grantor against third parties for past, present, future
infringement or dilution of any Copyright.]
or
[(a) all of its Patents, including, without limitation, those
referred to on SCHEDULE I hereto;
(b) all reissues, continuations or extensions of the foregoing; and
(c) all Proceeds of the foregoing, including, without limitation,
any claim by Grantor against third parties for past, present or future
infringement or dilution of any Patent.]
or
[(a) all of its Trademarks, including, without limitation, those
referred to on SCHEDULE I hereto;
(b) all reissues, continuations or extensions of the foregoing;
(c) all goodwill of the business connected with the use of, and
symbolized by, each Trademark; and
(d) all Proceeds of the foregoing, including, without limitation,
any claim by Grantor against third parties for past, present, future (i)
infringement or dilution of any Trademark or (ii) injury to the goodwill
associated with any Trademark;]
SECTION 3. SECURITY AGREEMENT
The security interest granted pursuant to this [Copyright] [Patent]
[Trademark] Security Agreement is granted in conjunction with the security
interest granted to the [Administrative Agent] [Tranche C Agent] pursuant to the
Security Agreement and each Grantor hereby acknowledges and affirms that the
rights and remedies of the [Administrative Agent] [Tranche C Agent] with respect
to the security interests in the [Copyright] [Patent] [Trademark]
A5-2
<Page>
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
[SIGNATURE PAGES FOLLOW]
A5-3
<Page>
IN WITNESS WHEREOF, each Grantor has caused this [Copyright] [Patent]
[Trademark] Security Agreement to be executed and delivered by its duly
authorized offer as of the date first set forth above.
Very truly yours,
[GRANTOR],
AS GRANTOR
By:
------------------------------------
Name:
Title:
ACCEPTED AND AGREED
as of the date first above written:
CITICORP NORTH AMERICA, INC.,
[AS ADMINISTRATIVE AGENT]
[AS TRANCHE C AGENT]
By:
------------------------------
Name:
Title:
[SIGNATURE PAGE TO [COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT]
<Page>
ACKNOWLEDGMENT OF GRANTOR
STATE OF____________________)
) ss.
COUNTY OF___________________)
On this ___ day of ________ __, 20__ before me personally appeared
______________________, proved to me on the basis of satisfactory evidence to be
the person who executed the foregoing instrument on behalf of ________________,
who being by me duly sworn did depose and say that he is an authorized officer
of said corporation, that the said instrument was signed on behalf of said
corporation as authorized by its Board of Directors and that he acknowledged
said instrument to be the free act and deed of said corporation.
-----------------------
Notary Public
[ACKNOWLEDGEMENT OF GRANTOR FOR [COPYRIGHT] [PATENT] [TRADEMARK] SECURITY
AGREEMENT FOR THE BENEFIT OF THE
[ADMINISTRATIVE AGENT] [TRANCHE C AGENT]]
A5-5
<Page>
SCHEDULE I
TO
[COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT
[COPYRIGHT] [PATENT] [TRADEMARK] REGISTRATIONS
[A. REGISTERED COPYRIGHTS
[Include Copyright Registration Number and Date]
B. COPYRIGHT APPLICATIONS]
[C. REGISTERED PATENTS
D. PATENT APPLICATIONS]
[E. REGISTERED TRADEMARKS
F. TRADEMARK APPLICATIONS]
[Include complete legal description of agreement
(name of agreement, parties and date)]
i