INTERCOMPANY PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT (this "AGREEMENT"), dated as of April
15, 1999, between THE COLEMAN COMPANY, INC. (with its successors, the
"GRANTOR") and SUNBEAM CORPORATION (the "PARENT").
W I T N E S S E T H :
WHEREAS, the Parent and the Grantor are parties to the Credit
Agreement, dated as of March 30, 1998 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Parent, the
subsidiary borrowers referred to therein (including the Grantor, the
"SUBSIDIARY BORROWERS"), the lenders party thereto (the "LENDERS"), Morgan
Stanley Senior Funding, Inc., as Syndication Agent, Bank of America National
Trust and Savings Association, as Documentation Agent, and First Union
National Bank, as administrative agent (the "ADMINISTRATIVE AGENT");
WHEREAS, in connection with the Credit Agreement, the Parent
executed a Parent Pledge and Security Agreement, dated as of March 30, 1998
(as amended, supplemented or otherwise modified from time to time, the
"PARENT PLEDGE AND SECURITY AGREEMENT"), between the Parent and the
Administrative Agent, pursuant to which, among other things, all Pledged
Instruments (as defined in the Parent Pledge and Security Agreement) in favor
of the Parent, including the Parent Intercompany Note (as hereafter defined),
are pledged to the Administrative Agent, for the benefit of the Lenders, to
secure the Secured Obligations (as defined in the Parent Pledge and Security
Agreement), including without limitation, the obligations of the Parent under
the Credit Agreement;
WHEREAS, the Grantor has executed an Amended and Restated
Subordinated Intercompany Note, dated April 6, 1998 (as amended, supplemented
or otherwise modified from time to time, the "COLEMAN INTERCOMPANY NOTE"), in
favor of the Parent;
WHEREAS, in order to secure its obligations under the Coleman
Intercompany Note, the Grantor has agreed to grant a continuing security
interest in and to the Collateral (as hereafter defined) to secure the
Secured Intercompany Obligations (as hereafter defined); and
WHEREAS, pursuant to this Agreement and the Parent Pledge and
Security Agreement under which the Coleman Intercompany Note has been pledged
to the Administrative Agent, the security interests in the Collateral granted
by the Grantor pursuant to this Agreement, including all of the right, title
and interest of the Parent, as Secured Party (as hereafter defined)
hereunder, have been pledged and collaterally assigned to the Administrative
Agent, for the
benefit of the Lenders, to secure the Secured Obligations (as hereafter
defined) in accordance with the terms of the Parent Pledge and Security
Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. DEFINITIONS. Terms defined in the Coleman Intercompany
Note and not otherwise defined herein have, as used herein, the respective
meanings provided for therein. The following additional terms, as used
herein, have the following respective meanings:
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City or Charlotte, North
Carolina are authorized or required by law to remain closed.
"COLEMAN COLLATERAL DOCUMENTS" has the meaning set forth in the
Credit Agreement.
"COLEMAN MERGER EFFECTIVE DATE" has the meaning set forth in the
Credit Agreement.
"COLLATERAL" has the meaning assigned to such term in Section 3(A).
"DIRECT DOMESTIC SUBSIDIARY" means a Direct Subsidiary organized
under the laws of the United States of America or a state thereof.
"DIRECT DOMESTIC SUBSIDIARY SHARES" means the shares of capital
stock, membership or limited liability company interests or other equity
interests of each Direct Domestic Subsidiary listed on Schedule I opposite
such Direct Domestic Subsidiary's name.
"DIRECT FOREIGN SUBSIDIARY" means a Direct Subsidiary organized
under the laws of any jurisdiction outside the United States.
"DIRECT FOREIGN SUBSIDIARY SHARES" means the shares of capital
stock, membership or limited liability company interest or other equity
interests of each Direct Foreign Subsidiary listed on Schedule II opposite
such Direct Foreign Subsidiary's name.
"DIRECT SUBSIDIARY" means a Subsidiary of the Grantor, the capital
stock or other equity interests of which is held directly by the Grantor.
"DIRECT SUBSIDIARY INTERCOMPANY AGREEMENT" means all instruments,
listed on Schedule I or Schedule II that are owned by the Grantor evidencing
Indebtedness owed to the Grantor by its Direct Subsidiaries.
"FOREIGN HOLDING COMPANY" means Direct Domestic Subsidiary of the
Grantor whose sole assets (exclusive of assets consisting of advances or
loans to Grantor or any of its
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Subsidiaries and assets with an aggregate book value not exceeding
$1,000,000) consist primarily of capital stock, membership or limited
liability interest or other equity interests of one or more Foreign
Subsidiaries or other Foreign Holding Companies.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Grantor organized
under the laws of any jurisdiction outside the United States.
"INDEBTEDNESS" has the meaning set forth in the Credit Agreement.
"INDIRECT SUBSIDIARY" means a Subsidiary of the Grantor which is
not a Direct Subsidiary.
"INDIRECT SUBSIDIARY INTERCOMPANY AGREEMENTS" means all
instruments, other than Direct Subsidiary Intercompany Agreements, listed on
Schedule I or Schedule II that are owned by the Grantor evidencing
Indebtedness owed to the Grantor by its Indirect Subsidiaries.
"INVESTMENT PROPERTY" means all "investment property" as such term
is defined in Section 9-115 of the Uniform Commercial Code.
"INVESTMENTS" has the meaning set forth in the Credit Agreement.
"PLEDGED INSTRUMENTS" means (i) the Direct Subsidiary Intercompany
Agreement, (ii) the Indirect Subsidiary Intercompany Agreements, and (iii)
any instrument required to be pledged to the Administrative Agent pursuant to
Section 3(B), Section 3(C) or Section 3(D).
"PLEDGED SECURITIES" means the Pledged Instruments and the Pledged
Stock.
"PLEDGED STOCK" means (i) the Direct Domestic Subsidiary Shares
(other than with respect to any Foreign Holding Company), (ii) 66% of (A) the
Direct Domestic Subsidiary Shares of any Foreign Holding Company including,
without limitation, the Direct Domestic Subsidiary Shares of the Foreign
Holding Companies represented by the certificates identified with respect to
such companies on Schedule 1 hereto and (B) the Direct Foreign Subsidiary
Shares and (iii) any other capital stock, membership or limited liability
interest or other equity interests required to be pledged to the Secured
Party pursuant to Section 3(B) and Section 3(C).
"SECURED INTERCOMPANY OBLIGATIONS" means the obligations of the
Grantor to the Parent secured under this Agreement, including without
limitation, (i) all principal of and interest (including without limitation,
any interest which accrues after or would accrue but for the commencement of
any case, proceeding or other action relating to the bankruptcy, insolvency
or reorganization of the Grantor, whether or not allowed or allowable as a
claim in any such proceeding) on the Coleman Intercompany Note, (ii) all
other amounts payable by the Grantor under the Coleman Intercompany Note and
(iii) any renewals or extensions of any of the foregoing.
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"SECURED OBLIGATIONS" means, collectively, the Secured Obligations
under and as defined in the Parent Pledge and Security Agreement.
"SECURED OBLIGATIONS REPAYMENT DATE" means the date on which all of
the following shall have occurred: (A) the payment in full of the Secured
Obligations, (B) the termination of the Commitments under and as defined in
the Credit Agreement and (C) the expiration or termination of all Letters of
Credit issued pursuant to and as defined in the Credit Agreement.
"SECURED PARTY" means the Parent; PROVIDED that until the Secured
Obligations Repayment Date the Security Interests and the Secured Party's
powers, rights, remedies, benefits, protections, authority and functions of
the Secured Party have been collaterally assigned by the Parent to the
Administrative Agent to the extent set forth in Section 13(B) hereof and the
Parent Pledge and Security Agreement.
"SECURITY INTERESTS" means the security interests in the Collateral
granted hereunder securing the Secured Intercompany Obligations.
"SUNBEAM (CANADA)" means Sunbeam Corporation (Canada) Limited.
"UNIFORM COMMERCIAL CODE": the Uniform Commercial Code as in
effect from time to time in the State of New York.
Unless otherwise defined herein, or unless the context otherwise
requires, all terms used herein which are defined in the Uniform Commercial
Code shall have the meanings therein stated.
Section 2. REPRESENTATIONS AND WARRANTIES. The Grantor represents
and warrants as follows:
(A) TITLE TO PLEDGED SECURITIES. The Grantor owns all of the Pledged
Securities, free and clear of any Liens other than the Security Interests.
The Pledged Stock includes (i) all of the issued and outstanding capital
stock of each Direct Domestic Subsidiary (other than any Foreign Holding
Company), (ii) 66% of (x) the issued and outstanding stock of each Direct
Foreign Subsidiary and (y) the issued and outstanding capital stock,
membership or limited liability company interest or other equity interests
of each Foreign Holding Company and (iii) 23% of the issued and outstanding
capital stock of Sunbeam (Canada). The Pledged Instruments include all
instruments owned by the Grantor evidencing Indebtedness owed to it by the
Parent or any of its Subsidiaries (other than any Foreign Holding Company
or Foreign Subsidiary). All of the Pledged Stock has been duly authorized
and validly issued, and is fully paid and non-assessable, and is subject to
no options to purchase or similar rights of any Person. The Grantor is not
and will not become a party to or otherwise become bound by any agreement,
other than this Agreement and the Coleman Collateral Documents, which
restricts in any manner the rights of any present or future holder of any
of the Pledged Securities with respect thereto.
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(B) VALIDITY, PERFECTION AND PRIORITY OF SECURITY INTERESTS. Upon
the delivery of the Pledged Instruments and certificates representing the
Pledged Stock to the Secured Party in accordance with Section 4 hereof, and
the filing of UCC financing statements with the collateral description in
the form specified in Exhibit A in the appropriate filing office in the
jurisdiction specified on Schedule III, the Secured Party will have valid
and perfected security interests in the Collateral subject to no prior Lien
other than (i) Permitted Liens under and as defined in the Credit Agreement
and (ii) on and after the Coleman Merger Effective Date, the Liens in favor
of the Administrative Agent under the Coleman Collateral Documents. Except
for the filing of the UCC financing statements described in the immediately
preceding sentence, no registration, recordation or filing with any
governmental body, agency or official is required in connection with the
execution or delivery of this Agreement or necessary for the validity or
enforceability hereof or for the perfection or enforcement of the Security
Interests. Neither the Grantor nor any of its Subsidiaries has performed
or will perform any acts which might prevent the Secured Party from
enforcing any of the terms and conditions of this Agreement or which would
limit the Secured Party in any such enforcement other than the execution
and delivery of the Coleman Collateral Documents. Other than financing
statements or other similar or equivalent documents or instruments with
respect to the Security Interests, no financing statement, mortgage,
security agreement or similar or equivalent document or instrument covering
all or any part of the Collateral is on file or of record in any
jurisdiction in which such filing or recording would be effective to
perfect a Lien on such Collateral. No Collateral is in the possession of
any Person (other than the Grantor) asserting any claim thereto or security
interest therein, except that (x) the Secured Party or the Administrative
Agent as its designee may have possession of Collateral as contemplated
hereby and (y) on and after the Coleman Merger Effective Date, the
Administrative Agent also may have possession of Collateral in its own
right as contemplated by the Coleman Collateral Documents.
(C) UCC FILING LOCATIONS. The chief executive office of the Grantor
is located at its address set forth on the signature pages hereto. The
State of incorporation of the Grantor is the State of Delaware. Under the
Uniform Commercial Code as in effect in the State in which such office is
located, no local filing is required to perfect a security interest in
collateral consisting of accounts, Investment Property or general
intangibles.
(D) PLEDGED INSTRUMENTS. Each Pledged Instrument and each document
and instrument that secures or guarantees payment of such Pledged
Instrument constitutes the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law. As
of the date of the grant of the Security Interests in any Pledged
Instrument, such Pledged Instrument was not subject to any right of
counterclaim or offset whatsoever.
Section 3. THE SECURITY INTERESTS. In order to secure the full
and punctual payment of the Secured Intercompany Obligations in accordance
with the terms thereof, and to
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secure the payment and performance of all the obligations of the Grantor
hereunder and under the Coleman Intercompany Loan Documents:
(A) The Grantor hereby assigns and pledges to the Parent, as Secured
Party, and grants to the Parent, as Secured Party, security interests in
all of the following property of the Grantor (collectively, the
"COLLATERAL"):
(1) the Pledged Securities, and all organizational documents,
together with all of its rights and privileges thereunder, with
respect to the Pledged Securities, and all income and profits thereon,
and all interest, dividends and other payments and distributions with
respect thereto;
(2) all Indebtedness now or hereafter owed to the Grantor by the
Parent or any of its Subsidiaries (whether or not evidenced by
instruments (as defined in the Uniform Commercial Code));
(3) all Investments made by the Grantor in any of its
Subsidiaries;
(4) all Investment Property; and
(5) all proceeds of all or any of the collateral described in
clauses (1) through (4) hereof, including without limitation, all
dividends or other income from the Investment Property or the Pledged
Securities, collections thereon or distributions or payments with
respect thereto, and all collateral security and guarantees given by
any person with respect to all or any of the collateral described in
clauses (1) through (4) hereof.
Contemporaneously with the execution and delivery hereof, the Grantor is
delivering the Direct Subsidiary Intercompany Agreement, the Indirect
Subsidiary Intercompany Agreements and certificates representing the Direct
Domestic Subsidiary Shares and the Direct Foreign Subsidiary Shares in pledge
hereunder.
(B) In the event that at any time any Person becomes a Direct
Domestic Subsidiary, or any Direct Domestic Subsidiary issues any
additional or substitute shares of capital stock of any class, any
membership or limited liability company interest or any other equity
interests or any substitute note, or instrument evidencing any other
Indebtedness to the Grantor, or the Grantor makes any other Investment in
any Direct Domestic Subsidiary, the Grantor will immediately pledge and
deposit with the Secured Party certificates representing all such shares,
any membership or limited liability company interests or other equity
interests and such note or an instrument evidencing such other Indebtedness
or other investment as additional security for the Secured Intercompany
Obligations. All such shares, interests, notes and instruments constitute
Pledged Securities and are subject to all provisions of this Agreement.
(C) In the event that at any time any Person becomes a Direct Foreign
Subsidiary, or any Direct Foreign Subsidiary issues any additional or
substitute shares of
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capital stock of any class, any membership or limited liability company
interest or any other equity interests to the Grantor, the Grantor will
immediately pledge and deposit with the Secured Party certificates
representing additional shares, membership or limited liability company
interests or equity interests sufficient to cause the Secured Party to
have a security interest in 66% (but not more than 66%) of all the
outstanding capital stock of, membership or limited liability company
interests or other equity interests in, such Direct Foreign Subsidiary as
additional security for the Secured Intercompany Obligations. All such
shares and interests constitute Pledged Securities and are subject to all
provisions of this Agreement.
(D) In the event that at any time the Parent or any Indirect
Subsidiary issues any substitute note or instrument evidencing any other
Indebtedness to the Grantor, the Grantor will immediately pledge and
deposit with the Secured Party such note or an instrument evidencing such
other Indebtedness as additional security for the Secured Intercompany
Obligations. All such notes and instruments constitute Pledged Securities
and are subject to all provisions of this Agreement.
(E) The Security Interests are granted as security only and shall not
subject the Secured Party to, or transfer or in any way affect or modify,
any obligation or liability of the Grantor or any of its Direct
Subsidiaries or Indirect Subsidiaries with respect to any of the Collateral
or any transaction in connection therewith.
(F) Notwithstanding anything to the contrary herein, Grantor shall
not be required to pledge (i) any capital stock, membership or limited
liability interest or other equity interests issued by any Foreign
Subsidiary or Foreign Holding Company if the aggregate portion of capital
stock, membership or limited liability interest or other equity interests
of such Person that is Pledged Stock would (x) in the case of Sunbeam
(Canada), exceed 66% of the outstanding capital stock, membership or
limited liability interest or other equity interests of Sunbeam (Canada)
when taken together with the percentage of the outstanding capital stock,
membership or limited liability interest or other equity interests of
Sunbeam (Canada) pledged to the Administrative Agent under the Pledge and
Security Agreements (as defined in the Credit Agreement) or (y) in the case
of any other Foreign Subsidiary or Foreign Holding Company, exceed 66% of
the outstanding capital stock, membership or limited liability interest or
other equity interests of such Person or (ii) any Direct Subsidiary
Intercompany Agreement, Indirect Subsidiary Intercompany Agreement or
instrument owned by the Grantor evidencing Indebtedness owed to the Grantor
by any Foreign Subsidiary or Foreign Holding Company.
Section 4. DELIVERY OF PLEDGED SECURITIES. All Pledged
Instruments shall be delivered to the Parent by the Grantor pursuant hereto
indorsed to the order of the Secured Party, and accompanied by any required
transfer tax stamps, all in form and substance satisfactory to the Secured
Party. All certificates representing the Pledged Stock delivered to the
Parent by the Grantor pursuant hereto shall be in suitable form for transfer
by delivery, or shall be accompanied by duly executed instruments of transfer
or assignment in blank, with signatures appropriately guaranteed, and
accompanied by any required transfer tax stamps, all in form and substance
satisfactory to the Parent. It is understood and agreed that, upon its
receipt thereof, the
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Parent will immediately deliver to the Administrative Agent in accordance
with Section 13(A) hereof all certificates representing such Pledged Stock in
suitable form for transfer by delivery, or accompanied by duly executed
instruments of transfer or assignment in blank, and all Pledged Instruments
indorsed to the order of the Administrative Agent or in blank.
Section 5. FURTHER ASSURANCES.
(A) The Grantor agrees that it will from time to time, at its expense
and in such manner and form as the Secured Party may require, execute,
deliver, file and record any financing statement, specific assignment or
other paper and take any other action that may be necessary or desirable,
or that the Secured Party may request, in order to create, preserve,
perfect, confirm or validate any Security Interest or to enable the Secured
Party to exercise and enforce any of its rights, powers or remedies
hereunder with respect to any of the Collateral (including without
limitation, in the case of Investment Property, taking any actions
reasonably deemed necessary to enable the Secured Party to obtain "control"
(within the meaning of the applicable Uniform Commercial Code) with respect
thereto). The Grantor hereby authorizes the Secured Party to execute and
file, to the extent not prohibited by applicable law, in the name of the
Grantor or otherwise, Uniform Commercial Code financing statements (which
may be carbon, photographic, photostatic or other reproductions of this
Agreement or of a financing statement relating to this Agreement) which the
Secured Party in its sole discretion may deem necessary or appropriate to
further perfect the Security Interests.
(B) The Grantor agrees that it will not change (i) its name, identity
or corporate structure in any manner unless it shall have given the Secured
Party not less than 10 days' prior notice thereof or (ii) the location of
its chief executive office unless it shall have given the Secured Party not
less than 30 days' prior notice thereof.
Section 6. RECORD OWNERSHIP OF PLEDGED STOCK. Upon the occurrence
and during the continuance of any Default, the Secured Party may at any time
or from time to time, in its sole discretion, cause any or all of the Pledged
Stock to be transferred of record into the name of the Secured Party or its
nominee. The Grantor will promptly give to the Secured Party copies of any
notices or other communications received by it with respect to Pledged Stock
registered in the name of the Grantor and the Secured Party will promptly
give to the Grantor copies of any notices and communications received by the
Secured Party with respect to Pledged Stock registered in the name of the
Secured Party or its nominee.
Section 7. RIGHT TO RECEIVE DISTRIBUTIONS ON COLLATERAL. The
Secured Party shall have the right to receive and, during the continuance of
any Default, to retain as Collateral hereunder all dividends, interest and
other payments and distributions made upon or with respect to the Collateral
and the Grantor shall take all such action as the Secured Party may deem
necessary or appropriate to give effect to such right. All such dividends,
interest and other payments and distributions which are received by the
Grantor shall be received in trust for the benefit of the Secured Party and,
if the Secured Party so directs during the continuance of a Default, shall be
segregated from other funds of the Grantor and shall, forthwith upon demand
by the Secured Party during the continuance of a Default, be paid over to the
Secured Party as
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Collateral in the same form as received (with any necessary endorsement).
After all Defaults have been cured, the Secured Party's right to retain
dividends, interest and other payments and distributions under this Section 7
shall cease and the Secured Party shall pay over to the Grantor any such
Collateral retained by it during the continuance of a Default.
Section 8. RIGHT TO VOTE PLEDGED STOCK. Unless a Default shall
have occurred and be continuing, the Grantor shall have the right, from time
to time, to vote and to give consents, ratifications and waivers with respect
to the Pledged Stock and the Investment Property, and the Secured Party
shall, upon receiving a written request from the Grantor accompanied by a
certificate signed by its principal financial officer stating that no Default
has occurred and is continuing, deliver to the Grantor or as specified in
such request such proxies, powers of attorney, consents, ratifications and
waivers in respect of any of the Pledged Stock and the Investment Property
which is registered in the name of the Secured Party or its nominee as shall
be specified in such request and be in form and substance satisfactory to the
Secured Party.
If a Default shall have occurred and be continuing, the Secured
Party shall have the right, to the extent not prohibited by applicable law,
to vote and to give consents, ratifications and waivers, and take any other
action with respect to any or all of the Pledged Stock with the same force
and effect as if the Secured Party were the absolute and sole owner thereof
and the Grantor shall take all such action as may be necessary or appropriate
to give effect to such right.
Section 9. GENERAL AUTHORITY. The Grantor hereby irrevocably
appoints the Secured Party its true and lawful attorney, with full power of
substitution, in the name of the Grantor, the Secured Party or otherwise,
for the sole use and benefit of the Secured Party, but at the expense of the
Grantor, to the extent not prohibited by applicable law, to exercise, at any
time and from time to time while an Event of Default has occurred and is
continuing, all or any of the following powers with respect to all or any of
the Collateral:
(i) to demand, sue for, collect, receive and give acquittance for
any and all monies due or to become due upon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any action
or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with the same
or the proceeds or avails thereof, as fully and effectually as if the
Secured Party were the absolute owner thereof, and
(iv) to extend the time of payment of any or all thereof and to make
any allowance and other adjustments with reference thereto;
PROVIDED that the Secured Party shall give the Grantor not less than ten
days' prior notice of the time and place of any sale or other intended
disposition of any of the Collateral except any Collateral which is
perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market. Such notice constitutes "REASONABLE
NOTIFICATION" within the meaning of Section 9-504(3) of the Uniform
Commercial Code. The Grantor hereby ratifies and
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confirms all that the Secured Party, as said attorney, shall do or cause to
be done by virtue of this Section 9 and the other provisions of this
Agreement. All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and shall be irrevocable until the
Secured Intercompany Obligations are paid in full.
Section 10. REMEDIES UPON EVENT OF DEFAULT. If any Event of
Default shall have occurred and be continuing, the Secured Party may exercise
all the rights of a secured party under the Uniform Commercial Code (whether
or not in effect in the jurisdiction where such rights are exercised) and, in
addition, the Secured Party may, without being required to give any notice,
except as herein provided or as may be required by mandatory provisions of
law, (i) apply the cash, if any, then held by it as Collateral and (ii) if
there shall be no such cash or if such cash shall be insufficient to pay all
the Secured Intercompany Obligations in full, sell the Collateral or any part
thereof at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery, and at
such price or prices as the Secured Party may deem satisfactory. Any Lender
or Sunbeam Entity may be the purchaser of any or all of the Collateral so
sold at any public sale (or, if the Collateral is of a type customarily sold
in a recognized market or is of a type which is the subject of widely
distributed standard price quotations, at any private sale). The Secured
Party is authorized, in connection with any such sale, if it deems it
advisable so to do, (i) to restrict the prospective bidders on or purchasers
of any of the Pledged Securities to a limited number of sophisticated
investors who will represent and agree that they are purchasing for their own
account for investment and not with a view to the distribution or sale of any
of such Pledged Securities, (ii) to cause to be placed on certificates for
any or all of the Pledged Securities or on any other securities pledged
hereunder a legend to the effect that such security has not been registered
under the Securities Act of 1933 and may not be disposed of in violation of
the provisions of said Act, and (iii) to impose such other limitations or
conditions in connection with any such sale as the Secured Party deems
necessary or advisable in order to comply with said Act or any other law. The
Grantor will execute and deliver such documents and take such other action as
the Secured Party deems necessary or advisable in order that any such sale
may be made in compliance with law. Upon any such sale the Secured Party
shall have the right to deliver, assign and transfer to the purchaser thereof
the Collateral so sold. Each purchaser at any such sale shall hold the
Collateral so sold absolutely and free from any claim or right of whatsoever
kind, including any equity or right of redemption of the Grantor which may be
waived, and the Grantor, to the extent permitted by law, hereby specifically
waives all rights of redemption, stay or appraisal which it has or may have
under any law now existing or hereafter adopted. The notice (if any) of such
sale shall (1) in the case of a public sale, state the time and place fixed
for such sale, (2) in the case of a sale at a broker's board or on a
securities exchange, state the board or exchange at which such sale is to be
made and the day on which the Collateral, or the portion thereof so being
sold, will first be offered for sale at such board or exchange, and (3) in
the case of a private sale, state the day after which such sale may be
consummated. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Secured Party may
fix in the notice of such sale. At any such sale the Collateral may be sold
in one lot as an entirety or in separate parcels, as the Secured Party may
determine. The Secured Party shall not be obligated to make any such sale
pursuant to any such notice. The Secured Party may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
the sale, and such sale may be made at any time or place to which the same
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may be so adjourned. In the case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral so sold may be
retained by the Secured Party until the selling price is paid by the
purchaser thereof, but the Secured Party shall not incur any liability in the
case of the failure of such purchaser to take up and pay for the Collateral
so sold and, in the case of any such failure, such Collateral may again be
sold upon like notice. The Secured Party, instead of exercising the power of
sale herein conferred upon it, may proceed by a suit or suits at law or in
equity to foreclose the Security Interests and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
Section 11. EXPENSES. The Grantor agrees that it will forthwith
upon demand pay to the Secured Party:
(i) the amount of any taxes which the Secured Party may have been
required to pay by reason of the Security Interests or to free any of the
Collateral from any Lien thereon, and
(ii) the amount of any and all out-of-pocket expenses, including the
fees and disbursements of counsel and of any other experts, which the
Secured Party may incur in connection with (w) the administration or
enforcement of this Agreement, including such expenses as are incurred to
preserve the value of the Collateral and the validity, perfection, rank and
value of any Security Interest, (x) the collection, sale or other
disposition of any of the Collateral, (y) the exercise by the Secured Party
of any of the rights conferred upon it hereunder or (z) any Default or
Event of Default.
Any such amount not paid on demand shall bear interest at the rate applicable
to the Coleman Intercompany Note plus 2% and shall be an additional Secured
Intercompany Obligation hereunder.
Section 12. APPLICATION OF PROCEEDS. Upon the occurrence and
during the continuance of an Event of Default, the proceeds of any sale of,
or other realization upon, all or any part of the Collateral and any cash
held shall be applied by the Secured Party in the following order of
priorities:
FIRST, to payment of the expenses of such sale or other realization,
including reasonable compensation to agents and counsel for the Secured
Party, and all expenses, liabilities and advances incurred or made by
the Secured Party in connection therewith, and any other unreimbursed
expenses for which the Secured Party is to be reimbursed pursuant to
Section 11 hereof;
SECOND, to the payment of unpaid principal (including all capitalized
interest) of the Secured Intercompany Obligations in accordance with the
provisions of the Coleman Intercompany Note;
THIRD, to the payment of accrued but unpaid interest on the Secured
Intercompany Obligations in accordance with the provisions of the Coleman
Intercompany Note;
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FOURTH, to the ratable payment of all other Secured Intercompany
Obligations, until all Secured Intercompany Obligations shall have been
paid in full; and
FINALLY, to payment to the Grantor or its successors or assigns, or as
a court of competent jurisdiction may direct, of any surplus then remaining
from such proceeds.
The Secured Party may make distributions hereunder in cash or in kind or,
on a ratable basis, in any combination thereof.
Section 13. APPOINTMENT OF ADMINISTRATIVE AGENT AS BAILEE;
ASSIGNMENT TO ADMINISTRATIVE AGENT; ACKNOWLEDGMENT OF GRANTOR.
(A) In order to further perfect and protect the security
interests granted to the Administrative Agent under the Parent Pledge and
Security Agreement, including the Parent's pledge thereunder of the Security
Interests, the Parent hereby authorizes and appoints the Administrative Agent
to hold on the Parent's behalf and as its agent all Collateral granted
hereunder for purposes of possession and control under the Uniform Commercial
Code or other applicable law. The Administrative Agent, for itself and its
successors, hereby accepts such authorization and appointment and the Parent
hereby releases the Administrative Agent from any liability whatsoever (other
than liability resulting from the Administrative Agent's willful misconduct
or gross negligence) in connection with such authorization and appointment.
This authorization and appointment are a power coupled with an interest and
are irrevocable. It is understood and agreed that the Administrative Agent
may also hold collateral for its own benefit.
(B) Effective immediately following the grant of the Security
Interests in the Collateral pursuant to Section 3 hereof and the foregoing
authorization and appointment of the Administrative Agent as its nominee and
agent, and as more fully provided in the Parent Pledge and Security
Agreement, the Parent pledges and collaterally assigns, until the Secured
Obligations Repayment Date, to the Administrative Agent all of its right,
title and interest as the Secured Party hereunder, including, without
limitation, all of the powers, rights, remedies, benefits, protections,
authority and functions (but not the obligations) of the Secured Party
hereunder and the Administrative Agent, for itself and its successors, hereby
accepts such pledge and collateral assignment. The foregoing pledge and
collateral assignment are powers coupled with an interest and shall be
irrevocable until the Secured Obligations Repayment Date. In furtherance of
such pledge and assignment, the Parent will not exercise any of the rights or
remedies under this Agreement without the prior written consent of the
Administrative Agent and will exercise any of the powers, rights, remedies,
benefits, protections, authority and functions of the Secured Party under
this Agreement as directed to do so by the Administrative Agent; PROVIDED
that after the occurrence and during the continuance of a Default or an Event
of Default, all such powers, rights, remedies, benefits, protections,
authority and functions shall be for the sole use and benefit of, and shall
be exercised solely by, the Administrative Agent for the benefit of the
Lenders and any conflict between the interests of the Lenders and the
interests of the Parent hereby is waived by the Parent.
(C) The Grantor hereby acknowledges (i) receipt of a copy of
the Parent Pledge and Security Agreement; (ii) that pursuant to the Parent
Pledge and Security Agreement
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and this Agreement, the Parent has assigned to the Administrative Agent, as
collateral security for the Secured Obligations, all of its right, title and
interest in (A) the Secured Intercompany Obligations, (B) the Coleman
Intercompany Note and this Agreement and (C) the Security Interests and any
other collateral for the Secured Intercompany Obligations now or hereafter
granted by the Grantor to or for the benefit of the Parent under this
Agreement or any other Coleman Intercompany Loan Document; and (iii) that
pursuant to this Agreement and the Parent Pledge and Security Agreement, the
Administrative Agent is authorized, in accordance with the terms of this
Agreement and the Parent Pledge and Security Agreement, to exercise the
powers, rights, remedies, benefits, protections, authority and functions of
the Secured Party against the Grantor under this Agreement and otherwise in
respect of the Secured Intercompany Obligations.
(D) Notwithstanding anything to the contrary contained in
this Agreement, the Grantor hereby consents to the foregoing and
independently acknowledges and agrees, for the direct benefit of the
Administrative Agent and the Lenders, until the Secured Obligations Repayment
Date, as follows:
(i) the representations and warranties made by the Grantor in this
Agreement shall inure to the benefit of the Administrative Agent and the
Lenders and each reference in such representations and warranties to the
Secured Party shall be deemed to be references to the Administrative Agent
for such purpose;
(ii) upon the occurrence and continuance of an Event of Default, the
Administrative Agent as the assignee and delegee of the Parent and as the
Secured Party hereunder shall have the exclusive right to enforce all of
the covenants and agreements made by the Grantor under this Agreement and
to exercise all of the powers, rights, remedies, benefits, protections,
authority and functions of the Secured Party hereunder;
(iii) without the prior written consent of the Administrative Agent,
the Grantor shall not enter into any amendment, waiver or other
modification of the Secured Intercompany Obligations, the Coleman
Intercompany Note or the Coleman
Intercompany Loan Documents;
(iv) the Grantor shall comply with all payment instructions delivered
by the Administrative Agent with respect to the Secured Intercompany
Obligations, if such instructions are accompanied by a written
representation that a Default or an Event of Default has occurred and is
continuing; and
(v) all of the indemnification, expense reimbursement,
authorizations and exculpatory provisions contained in this Agreement in
favor of the Secured Party shall also inure to the benefit of the
Administrative Agent.
(E) In accordance with Section 5(A), and in furtherance of the
Grantor's acknowledgments and agreements contained in Section 13(C) and Section
13(D), the Grantor and the Secured Party shall as promptly as practicable after
the date hereof execute and deliver to the Administrative Agent an amendment to
this Agreement, and such other additional documents and instruments (and cause
to be delivered in connection therewith an opinion of counsel), in
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each case as reasonably requested by, and in form and substance reasonably
satisfactory to, the Administrative Agent, pursuant to which the Grantor
shall grant directly to the Administrative Agent, for the benefit of the
Lenders, security interests in the Collateral to secure the Secured
Obligations, PROVIDED that the amount of the Secured Obligations so secured
(and any recourse to the Collateral, whether to collect the Secured
Obligations or the Secured Intercompany Obligations) shall in no event exceed
the amount of the Secured Intercompany Obligations outstanding from time to
time.
Section 14. EXCULPATORY PROVISIONS
(A) The Secured Party is irrevocably authorized to take all such
action as is provided to be taken by it as Secured Party hereunder and all other
action reasonably incidental thereto. As to any matters not expressly provided
for herein (including, without limitation, the timing and methods of realization
upon the Collateral) the Secured Party shall act or refrain from acting in
accordance with its discretion.
(B) Beyond the exercise of reasonable care in the custody
thereof, the Secured Party shall have no duty as to any Collateral in its
possession or control or in the possession or control of any agent or bailee
or any income thereon or as to the preservation of rights against prior
parties or any other rights pertaining thereto. The Secured Party shall be
deemed to have exercised reasonable care in the custody and preservation of
the Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own property, and shall not
be liable or responsible for any loss or damage to any of the Collateral, or
for any diminution in the value thereof, by reason of the act or omission of
any warehouseman, carrier, forwarding agency, consignee or other agent or
bailee selected by the Secured Party in good faith. Neither the Secured
Party nor any of its officers, directors, employees or agents shall be liable
for failure to demand, collect or realize upon any of the 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 the Grantor or any other Person
or to take any other action whatsoever with regard to the Collateral or any
part thereof. The powers conferred on the Secured Party hereunder are solely
to protect the Secured Party's interests in the Collateral and shall not
impose any duty upon the Secured Party to exercise any such powers. The
Secured Party shall be accountable only for amounts that it actually receives
as a result of the exercise of such powers, and neither it nor any of its
officers, directors, employees or agents shall be responsible to the Grantor
for any act or failure to act hereunder.
Section 15. TERMINATION OF SECURITY INTERESTS; RELEASE OF COLLATERAL.
(A) Upon the repayment in full of all Secured Intercompany
Obligations, the Security Interests shall terminate and all rights to the
Collateral shall revert to the Grantor. Prior to such termination of the
Security Interests and the Secured Obligations Repayment Date, the Secured
Party may release any of the Collateral with the prior written consent of
the Lenders.
(B) Unless an Event of Default shall have occurred and be continuing,
the Secured Party shall upon an Asset Sale or other disposition permitted
under the Credit
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Agreement release the portion of the Collateral so sold (but not any
proceeds of such sale).
(C) Upon any termination of the Security Interests or release of
Collateral in accordance with this Section, the Secured Party will, at the
expense of the Grantor, execute and deliver to the Grantor such documents
as the Grantor shall reasonably request to evidence the termination of the
Security Interests or the release of such Collateral, as the case may be.
Section 16. NOTICES. All notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy to the address and telecopy number of such party and the
Administrative Agent set forth on the signature pages hereof. Each party
shall provide copies of all such notices and other communications in a like
manner to the Administrative Agent. Any party hereto and the Administrative
Agent may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices
and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date
of receipt.
Section 17. WAIVERS, NON-EXCLUSIVE REMEDIES. No failure on the
part of the Secured Party to exercise, and no delay in exercising and no
course of dealing with respect to, any right under this Agreement or any
other Coleman Intercompany Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise by the Secured Party of any right
under this Agreement or any other Coleman Intercompany Loan Document preclude
any other or further exercise thereof or the exercise of any other right.
The rights in this Agreement and the other Coleman Intercompany Loan
Documents are cumulative and are not exclusive of any other remedies provided
by law.
Section 18. SUCCESSORS AND ASSIGNS. This Agreement is for the
benefit of the Secured Party and its successors and assigns (including the
Administrative Agent for the benefit of the Lenders pursuant to the Parent
Pledge and Security Agreement and Section 13(B) hereof). This Agreement
shall be binding on the Grantor and its successors and assigns.
Section 19. CHANGES IN WRITING. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing, signed by the Grantor, the Parent and the Administrative
Agent.
Section 20. NEW YORK LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, except as
otherwise required by mandatory provisions of law and except to the extent
that remedies provided by the laws of any jurisdiction other than New York
are governed by the laws of such jurisdiction.
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Section 21. SEVERABILITY. If any provision hereof is invalid or
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in favor of the Parent,
the Administrative Agent and the Lenders in order to carry out the intentions
of the parties hereto as nearly as may be possible; and (ii) the invalidity
or unenforceability of any provision hereof in any jurisdiction shall not
affect the validity or enforceability of such provision in any other
jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
THE COLEMAN COMPANY, INC.
By Ronald R. Richter
-----------------
Name: Ronald R. Richter
Title: Vice President & Treasurer
Address for Notices:
2381 Executive Center Drive
Boca Raton, Florida 33431
Attention: Ms. Gwen Wisler
telecopy: (561) 912-4303
SUNBEAM CORPORATION
By Bobby Jenkins
-------------
Name: Bobby G. Jenkins
Title: Executive Vice President
Address for Notices:
2381 Executive Center Drive
Boca Raton, Florida 33431
Attention: Mr. Bobby Jenkins
telecopy: (561) 912-4263
ACKNOWLEDGED AND ACCEPTED:
FIRST UNION NATIONAL BANK,
as Administrative Agent
By T. M. Molitor
-------------
Name: T. M. Molitor
Title: Senior Vice President
Address for Notices:
One First Union Center
301 South College Street, DC-5
Charlotte, North Carolina 28288
Attention: Thomas M. Molitor
telecopy: (704) 374-3300