EXHIBIT 10.3
SECURITY AGREEMENT
This SECURITY AGREEMENT (this "AGREEMENT") is dated as of
October 16, 2002 and entered into by and among BRAND SERVICES, INC., a Delaware
corporation ("BORROWER"), BRAND INTERMEDIATE HOLDINGS, INC. (formerly known as
DLJ Brand Holdings, Inc.), a Delaware corporation ("PARENT"), each of THE
UNDERSIGNED DIRECT AND INDIRECT SUBSIDIARIES of Borrower (each of such
undersigned Subsidiaries being a "SUBSIDIARY GRANTOR" and collectively
"SUBSIDIARY GRANTORS") and each ADDITIONAL GRANTOR that may become a party
hereto after the date hereof in accordance with Section 21 hereof (each of the
Borrower, Parent, each Subsidiary Grantor, and each Additional Grantor being a
"GRANTOR" and collectively the "GRANTORS") and CREDIT SUISSE FIRST BOSTON, as
agent for and representative of (in such capacity herein called "SECURED PARTY")
the financial institutions ("LENDERS") party to the Credit Agreement referred to
below and any Hedge Agreement Counterparties (as hereinafter defined).
PRELIMINARY STATEMENTS
A. Pursuant to the Credit Agreement dated as of October 16,
2002 (said Credit Agreement, as amended, to the date hereof, and as it may
hereafter be further amended, restated, supplemented or otherwise modified from
time to time, being the "CREDIT AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
Borrower, Lenders, JPMorgan Chase Bank, as syndication agent for Lenders, Credit
Suisse First Boston, as administrative agent for Lenders (in such capacity,
"ADMINISTRATIVE AGENT") and, together with ▇.▇. ▇▇▇▇▇▇ Securities Inc., joint
lead arranger and book manager, and Antares Capital Corporation and General
Electric Capital Corporation, as co-documentation agents for Lenders, Lenders
have made certain commitments, subject to the terms and conditions set forth in
the Credit Agreement, to extend certain credit facilities to Borrower.
B. Borrower may from time to time enter, or may from time to
time have entered, into one or more Hedge Agreements (collectively, the "LENDER
HEDGE AGREEMENTS") with one or more Persons that are Lenders or Affiliates of
Lenders at the time such Lender Hedge Agreements are entered into (in such
capacity, collectively, "HEDGE AGREEMENT COUNTERPARTIES") in accordance with the
terms of the Credit Agreement, and it is desired that the obligations of
Borrower under the Lender Hedge Agreements, including without limitation the
obligation of Borrower to make payments thereunder in the event of early
termination thereof, together with all Obligations of Borrower under the Credit
Agreement and the other Loan Documents, be secured hereunder.
C. Parent has executed and delivered that certain Parent
Guaranty dated the date hereof (said Parent Guaranty, as it may hereafter be
amended, restated, supplemented or otherwise modified from time to time, being
the "PARENT GUARANTY") in favor of Secured Party for the benefit of Lenders and
any Hedge Agreement Counterparties, pursuant to which Parent has guarantied the
prompt payment and performance when due of all Obligations of Borrower under the
Credit Agreement and all obligations of Borrower under the Lender Hedge
Agreements, including without limitation the obligation of Borrower to make
payments thereunder in the event of early termination thereof.
Security Agreement EXECUTION
D. Subsidiary Grantors have executed and delivered that
certain Subsidiary Guaranty dated the date hereof (said Subsidiary Guaranty, as
amended, to the date hereof, and as it may hereafter be further amended,
restated, supplemented or otherwise modified from time to time, being the
"SUBSIDIARY GUARANTY") in favor of Secured Party for the benefit of Lenders and
any Hedge Agreement Counterparties, pursuant to which each Subsidiary Grantor
has guarantied the prompt payment and performance when due of all Obligations of
Borrower under the Credit Agreement and all obligations of Borrower under the
Lender Hedge Agreements, including without limitation the obligation of Borrower
to make payments thereunder in the event of early termination thereof.
E. It is a condition precedent to the initial extensions of
credit by Lenders under the Credit Agreement that Grantors listed on the
signature pages hereof shall have granted the security interests and undertaken
the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order
to induce Lenders to make Loans and other extensions of credit under the Credit
Agreement and to induce Hedge Agreement Counterparties to enter into the Lender
Hedge Agreements, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, each Grantor hereby agrees with
Secured Party as follows:
SECTION 1. GRANT OF SECURITY.
Each Grantor hereby assigns to Secured Party, and hereby
grants to Secured Party a security interest in, all of such Grantor's right,
title and interest in and to the following, in each case whether now or
hereafter existing, whether tangible or intangible, or in which such Grantor now
has or hereafter acquires an interest and wherever the same may be located (the
"COLLATERAL"):
(a) all equipment in all of its forms, all parts thereof and
all accessions thereto (any and all such equipment, parts and accessions being
the "EQUIPMENT");
(b) all inventory in all of its forms, including but not
limited to (i) all goods held by such Grantor for sale or lease or to be
furnished under contracts of service or so leased or furnished, (ii) all raw
materials, work in process, finished goods, and materials used or consumed in
the manufacture, packing, shipping, advertising, selling, leasing, furnishing or
production of such inventory or otherwise used or consumed in such Grantor's
business, (iii) all goods in which such Grantor has an interest in mass or a
joint or other interest or right of any kind, and (iv) all goods which are
returned to or repossessed by such Grantor and all accessions thereto and
products thereof (collectively the "INVENTORY") and all negotiable and
non-negotiable documents of title (including without limitation warehouse
receipts, dock receipts and bills of lading) issued by any Person covering any
Inventory (any such negotiable document of title being a "NEGOTIABLE DOCUMENT OF
TITLE");
(c) all accounts, contract rights, chattel paper, documents,
instruments, letter-of-credit rights and other rights and obligations of any
kind owned by or owing to such Grantor and all rights in, to and under all
security agreements, leases and other contracts securing or otherwise relating
to any such accounts, contract rights, chattel paper, documents, instruments,
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letter-of-credit rights or other rights and obligations, including, without
limitation, (i) all rights of such Grantor to receive moneys due or to become
due under or pursuant to any of the foregoing, (ii) all rights of such Grantor
to receive proceeds of any insurance, indemnity, warranty or guaranty with
respect to any of the foregoing, (iii) all claims of such Grantor for damages
arising out of any breach of or default under any of the foregoing, and (iv) all
rights of such Grantor to terminate, amend, supplement, modify or exercise
rights or options under any of the foregoing, to perform thereunder and to
compel performance and otherwise exercise all remedies thereunder, (any and all
such accounts, contract rights, chattel paper, documents, instruments,
letter-of-credit rights and other rights and obligations being the "ACCOUNTS",
and any and all such security agreements, leases and other contracts being the
"RELATED CONTRACTS");
(d) all deposit accounts, including the restricted deposit
account established and maintained by Secured Party pursuant to Section 11 (the
"COLLATERAL ACCOUNT"), together with (i) all amounts on deposit from time to
time in such deposit accounts and (ii) all interest, cash, instruments,
securities and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
foregoing ("DEPOSIT ACCOUNTS");
(e) the "SECURITIES COLLATERAL", which term means:
(i) all Capital Stock in any Person, including all securities
convertible into, and rights, warrants, options and other rights to
purchase or otherwise acquire, any Capital Stock now or hereafter owned
by such Grantor, including those owned on the date hereof and described
on Schedule 1(e)(i), and the certificates or other instruments
representing any Capital Stock and any interest of such Grantor in the
entries on the books of any securities intermediary pertaining thereto
(the "PLEDGED SHARES"), and all dividends, distributions, returns of
capital, cash, warrants, option, rights, instruments, rights to vote or
manage the business of such Person pursuant to organizational documents
governing the rights and obligations of the stockholders, partners,
members or other owners thereof and other property or proceeds from
time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such Pledged Shares; provided, that
if the issuer of any of such Pledged Shares is a controlled foreign
corporation (used hereinafter as such term is defined in Section 957(a)
or a successor provision of the Internal Revenue Code), the Pledged
Shares shall not include any shares of stock of such issuer in excess
of the number of shares of such issuer possessing up to but not
exceeding 65% of the voting power of all classes of capital stock
entitled to vote of such issuer, and all dividends, cash, warrants,
rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such Pledged Shares;
(ii) all indebtedness evidenced by an instrument from time to
time owed to such Grantor by any obligor, including the indebtedness
described on Schedule 1(e)(ii) and issued by the obligors named
therein, and the instruments evidencing such indebtedness (the "PLEDGED
DEBT"), and 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 or all of the Pledged
Debt; and
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(iii) all other investment property of such Grantor;
(f) the "INTELLECTUAL PROPERTY COLLATERAL", which term means:
(i) all rights, title and interest (including rights acquired
pursuant to a license or otherwise) in and to all trademarks, service
marks, designs, logos, indicia, trade names, trade dress, corporate
names, company names, business names, fictitious business names, trade
styles and/or other source and/or business identifiers and applications
pertaining thereto, owned by such Grantor, or hereafter adopted and
used, in its business (including, without limitation, the trademarks
specifically identified in Schedule 1(f)(i), as the same may be amended
pursuant hereto from time to time) (collectively, the "TRADEMARKS"),
all registrations that have been or may hereafter be issued or applied
for thereon in the United States and any state thereof (including,
without limitation, the registrations and applications specifically
identified in Schedule 1(f)(i), as the same may be amended pursuant
hereto from time to time) (the "TRADEMARK REGISTRATIONS"), all common
law and other rights in and to the Trademarks in the United States and
any state thereof (the "TRADEMARK RIGHTS"), and all goodwill of such
Grantor's business symbolized by the Trademarks and associated
therewith (the "ASSOCIATED GOODWILL");
(ii) all rights, title and interest (including rights acquired
pursuant to a license or otherwise) in and to all patents and patent
applications and rights and interests in patents and patent
applications under any domestic law that are presently, or in the
future may be, owned or held by such Grantor and all patents and patent
applications and rights, title and interests in patents and patent
applications under any domestic law that are presently, or in the
future may be, owned by such Grantor in whole or in part (including,
without limitation, the patents and patent applications listed in
Schedule 1(f)(ii), as the same may be amended pursuant hereto from time
to time), all rights corresponding thereto (including, without
limitation, the right, exercisable only upon the occurrence and during
the continuation of an Event of Default, to ▇▇▇ for past, present and
future infringements in the name of such Grantor or in the name of
Secured Party or Lenders), and all re-issues, divisions, continuations,
renewals, extensions and continuations-in-part thereof (all of the
foregoing being collectively referred to as the "PATENTS"); it being
understood that the rights and interests included in the Intellectual
Property Collateral hereby shall include, without limitation, all
rights and interests pursuant to licensing or other contracts in favor
of such Grantor pertaining to patent applications and patents presently
or in the future owned or used by third parties but, in the case of
third parties which are not Affiliates of such Grantor, only to the
extent permitted by such licensing or other contracts and, if not so
permitted, only with the consent of such third parties; and
(iii) all rights, title and interest (including rights
acquired pursuant to a license or otherwise) under copyright in various
published and unpublished works of authorship including, without
limitation, computer programs, computer data bases, other computer
software, layouts, trade dress, drawings, designs, writings, and
formulas owned by such Grantor (including, without limitation, the
works listed on Schedule 1(f)(iii), as the same may be amended pursuant
hereto from time to time) (collectively, the "COPYRIGHTS"), all
copyright registrations issued to such Grantor and applications for
copyright registration that have been or may hereafter be issued or
applied for thereon by such Grantor in the
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United States and any state thereof (including, without limitation, the
registrations listed on Schedule 1(f)(iii), as the same may be amended
pursuant hereto from time to time) (collectively, the "COPYRIGHT
REGISTRATIONS"), all common law and other rights in and to the
Copyrights in the United States and any state thereof including all
copyright licenses (but with respect to such copyright licenses, only
to the extent permitted by such licensing arrangements) (the "COPYRIGHT
RIGHTS"), including, without limitation, each of the Copyrights,
rights, titles and interests in and to the Copyrights, all derivative
works and other works protectable by copyright, which are presently, or
in the future may be, owned, created (as a work for hire for the
benefit of such Grantor), authored (as a work for hire for the benefit
of such Grantor), or acquired by such Grantor, in whole or in part, and
all Copyright Rights with respect thereto and all Copyright
Registrations therefor, heretofore or hereafter granted or applied for,
and all renewals and extensions thereof, throughout the world,
including all proceeds thereof (such as, by way of example and not by
limitation, license royalties and proceeds of infringement suits), the
right to renew and extend such Copyright Registrations and Copyright
Rights and to register works protectable by copyright and the right to
▇▇▇ for past, present and future infringements of the Copyrights and
Copyright Rights;
(g) all information used or useful or arising from the
business including all goodwill, trade secrets, trade secret rights, know-how,
customer lists, processes of production, ideas, confidential business
information, techniques, processes, formulas, and all other proprietary
information;
(h) to the extent not included in any other paragraph of this
Section 1, all general intangibles, including, without limitation, tax refunds,
payment intangibles, other rights to payment or performance, choses in action,
software and judgments taken on any rights or claims included in the
Collateral);
(i) all plant fixtures, business fixtures and other fixtures
and storage and office facilities, and all accessions thereto and products
thereof;
(j) all books, records, ledger cards, files, correspondence,
computer programs, tapes, disks and related data processing software that at any
time evidence or contain information relating to any of the Collateral or are
otherwise necessary or helpful in the collection thereof or realization
thereupon; and
(k) all proceeds, products, rents and profits of or from any
and all of the foregoing Collateral and, to the extent not otherwise included,
all payments under insurance (whether or not Secured Party is the loss payee
thereof), or any indemnity, warranty or guaranty, payable by reason of loss or
damage to or otherwise with respect to any of the foregoing Collateral. For
purposes of this Agreement, the term "PROCEEDS" includes (i) whatever is
acquired upon the sale, lease, license, exchange, or other disposition of
Collateral; (ii) whatever is collected on, or distributed on account of,
Collateral; (iii) rights arising out of Collateral; (iv) to the extent of the
value of the Collateral, claims arising out of the loss, nonconformity, or
interference with the use of, defects or infringement of rights in, or damage
to, the Collateral; (v) to the extent of the value of Collateral, insurance
payable by reason of the loss or nonconformity of, defects or infringement of
rights in, or damage to, the Collateral (whether or not Secured
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Party is the loss payee thereof); and whatever is receivable or received when
Collateral or proceeds are sold, exchanged, collected or otherwise disposed of,
whether such disposition is voluntary or involuntary.
Notwithstanding anything herein to the contrary, in no event
shall the Collateral include, and no Grantor shall be deemed to have granted a
security interest in: (i) any Equipment that is subject to a Lien expressly
permitted by the Credit Agreement to the extent such Lien prohibits the Lien
otherwise created under this Agreement; provided, that (a) immediately upon the
ineffectiveness, lapse or termination of such Lien, the Collateral shall
include, and such Grantor shall be deemed to have granted a security interest
in, all such rights and interests as if such Lien had never been in effect and
(b) the foregoing shall not limit in any manner a security interest in the
Proceeds of such Equipment; and (ii) any of such Grantor's rights or interests
in (x) any license, lease, contract or agreement to which such Grantor is a
party or any of its rights or interests thereunder to the extent, but only to
the extent that such a grant would, under the terms of such license, lease,
contract or agreement or otherwise, result in a breach of the terms of, or
constitute a default under any license, lease, contract or agreement to which
such Grantor is a party or (y) any other property of such Grantor to the extent,
but only to the extent, that such a grant would, under the terms of any contract
or agreement under which the Grantor has any obligations or duties and to which
such property is subject, result in a breach of the terms of, or constitute a
default under, such contract or agreement (in each case, other than to the
extent any such term would be rendered ineffective pursuant to Section 9-406(d)
of the Uniform Commercial Code of any relevant jurisdiction or any other
applicable law (including the Bankruptcy Code) or principles of equity);
provided, that (a) immediately upon the ineffectiveness, lapse or termination of
any such provision, the Collateral shall include, and such Grantor shall be
deemed to have granted a security interest in, all such rights and interests as
if such provision had never been in effect and (b) the foregoing shall not limit
in any manner a security interest in the Proceeds of such license, lease,
contract or agreement.
Each item of Collateral listed in this Section 1 that is
defined in Articles 8 or 9 of the Uniform Commercial Code, as it exists on the
date of this Agreement or as it may hereafter be amended, in the State of New
York (the "UCC") shall have the meaning set forth in the UCC, it being the
intention of the Grantors that the description of the Collateral set forth above
be construed to include the broadest possible range of assets, except for assets
expressly excluded as set forth above.
SECTION 2. SECURITY FOR OBLIGATIONS.
This Agreement secures, and the security interest in the
Collateral granted by each Grantor is collateral security for, the prompt
payment or performance in full when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including without
limitation the payment of amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code), of all Secured
Obligations of such Grantor. "SECURED OBLIGATIONS" means:
(a) with respect to Borrower, all obligations and liabilities
of every nature of Borrower now or hereafter existing under or arising out of or
in connection with the Credit Agreement and the other Loan Documents and any
Lender Hedge Agreement,
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(b) with respect to Parent, all obligations and liabilities of
every nature now or hereafter existing under or arising out of or in connection
with the Parent Guaranty; and
(c) with respect to each Subsidiary Grantor and Additional
Grantor, all obligations and liabilities of every nature of such Grantors now or
hereafter existing under or arising out of or in connection with the Subsidiary
Guaranty;
in each case together with all extensions or renewals thereof, whether for
principal, interest (including without limitation interest that, but for the
filing of a petition in bankruptcy with respect to Borrower or any other
Grantor, would accrue on such obligations, whether or not a claim is allowed
against Borrower or such Grantor for such interest in the related bankruptcy
proceeding), reimbursement of amounts drawn under Letters of Credit, payments
for early termination of Lender Hedge Agreements, fees, expenses, indemnities or
otherwise, whether voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly owed with others,
and whether or not from time to time decreased or extinguished and later
increased, created or incurred, and all or any portion of such obligations or
liabilities that are paid, to the extent all or any part of such payment is
avoided or recovered directly or indirectly from Secured Party or any Lender or
Hedge Agreement Counterparty as a preference, fraudulent transfer or otherwise,
and all obligations of every nature of Grantors now or hereafter existing under
this Agreement.
SECTION 3. GRANTORS REMAIN LIABLE.
Anything contained herein to the contrary notwithstanding, (a)
each Grantor shall remain liable under any contracts and agreements included in
the Collateral, to the extent set forth therein, to perform all of its duties
and obligations thereunder to the same extent as if this Agreement had not been
executed, (b) the exercise by Secured Party of any of its rights hereunder shall
not release any Grantor from any of its duties or obligations under the
contracts and agreements included in the Collateral, and (c) Secured Party shall
not have any obligation or liability under any contracts, licenses, and
agreements included in the Collateral by reason of this Agreement, nor shall
Secured Party be obligated to perform any of the obligations or duties of any
Grantor thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
Each Grantor represents and warrants as follows:
(a) OWNERSHIP OF COLLATERAL. Except as expressly permitted by
the Credit Agreement and for the security interest created by this Agreement,
such Grantor owns the Collateral owned by such Grantor free and clear of any
Lien. Except as expressly permitted by the Credit Agreement and except for
financing statements as to which the Secured Party shall have received
termination statements pursuant to subsection 4.1L(ii) of the Credit Agreement
or filings with the United States Patent and Trademark Office or the Copyright
Office in respect of Liens securing Indebtedness to be repaid on the Closing
Date and as to which filing arrangements reasonably satisfactory to the Secured
Party shall have been made for the release thereof, and as may have been filed
in favor of Secured Party relating to this Agreement, no
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effective financing statement or other instrument similar in effect covering all
or any part of the Collateral is on file in any filing or recording office.
(b) NEGOTIABLE DOCUMENTS OF TITLE. No Negotiable Documents of
Title are outstanding with respect to any of the Inventory.
(c) TYPE AND JURISDICTION OF ORGANIZATION. Each Grantor's type
of organization (i.e., corporation, limited partnership, etc.), jurisdiction of
organization and organization number provided by the applicable government
authority of the jurisdiction of organization are listed on Schedule 4(c).
(d) NAMES. Each Grantor's exact legal name is set forth on the
applicable signature page to this Security Agreement or in the case of an
Additional Grantor the counterpart to this Agreement executed by such Additional
Grantor. No Grantor (or predecessor by merger or otherwise of such Grantor) has,
within the four month period preceding the date hereof, or, in the case of an
Additional Grantor, the date of the applicable Counterpart, had a different name
from the name of such Grantor listed or the signature pages hereof, except the
names listed in Schedule 4(d) annexed hereto.
(e) DELIVERY OF CERTAIN COLLATERAL. All certificates or
instruments (excluding checks) evidencing, comprising or representing the
Collateral (including, without limitation, the Securities Collateral) have been
delivered to Secured Party duly endorsed or accompanied by duly executed
instruments of transfer or assignment in blank.
(f) SECURITIES COLLATERAL. (i) All of the Pledged Shares
described on Schedule 1(e)(i) have been duly authorized and validly issued and
are fully paid and non-assessable; (ii) all of the Pledged Debt described on
Schedule 1(e)(ii) has been duly authorized, authenticated or issued, and
delivered and is the legal, valid and binding obligation of the issuers thereof
and is not in default; (iii) except as set forth on Schedule 1(e)(i), the
Pledged Shares constitute all of the issued and outstanding shares of stock or
other equity interests of each issuer thereof (subject to the proviso to Section
1(e)(i) with respect to shares of a foreign controlled corporation), and there
are no outstanding warrants, options or other rights to purchase, or other
agreements outstanding with respect to, or property that is now or hereafter
convertible into, or that requires the issuance or sale of, any Pledged Shares;
(iv) the Pledged Debt constitutes all of the issued and outstanding intercompany
indebtedness evidenced by a promissory note of the respective issuers thereof
owing to such Grantor; (v) Schedule 1(e)(i) sets forth all of the Pledged Shares
owned by each Grantor on the date hereof; and (vi) Schedule 1(e)(ii) sets forth
all of the Pledged Debt in existence on the date hereof.
(g) INTELLECTUAL PROPERTY COLLATERAL.
(i) a true and complete list of all Trademark Registrations
and Trademark applications owned, held (whether pursuant to a license
or otherwise) or used by such Grantor, in whole or in part, is set
forth in Schedule 1(f)(i);
(ii) a true and complete list of all Patents owned, held
(whether pursuant to a license or otherwise) or used by such Grantor,
in whole or in part, is set forth in Schedule 1(f)(ii);
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(iii) a true and complete list of all Copyright Registrations
and applications for Copyright Registrations held (whether pursuant to
a license or otherwise) by such Grantor, in whole or in part, is set
forth in Schedule 1(f)(iii);
(iv) after reasonable inquiry, such Grantor is not aware of
any pending or threatened claim by any third party that any of the
Intellectual Property Collateral owned, held or used by such Grantor is
invalid or unenforceable; and
(v) except as set forth in Section 1, no effective security
interest or other Lien covering all or any part of the Intellectual
Property Collateral is on file in the United States Patent and
Trademark Office or the United States Copyright Office.
(h) PERFECTION. The security interests in the Collateral
granted to Secured Party for the ratable benefit of Lenders and Hedge Agreement
Counterparties hereunder constitute valid security interests in the Collateral
(subject to Section 9-306 of the UCC and Liens expressly permitted by the Credit
Agreement), securing the payment of the Secured Obligations. Upon (i) the filing
of UCC financing statements naming each Grantor as "debtor", naming Secured
Party as "secured party" and describing the Collateral in the filing offices
with respect to such Grantor set forth on Schedule 4(h), (ii) in the case of the
Securities Collateral consisting of certificated securities or evidenced by
instruments, delivery of the certificates representing such certificated
securities and delivery of such instruments to Secured Party, in each case duly
endorsed or accompanied by duly executed instruments of assignment or transfer
in blank, (iii) in the case of the Intellectual Property Collateral, in addition
to the filing of such UCC financing statements, the filing of a Grant of
Trademark Security Interest, substantially in the form of Exhibit I, and a Grant
of Patent Security Interest, substantially in the form of Exhibit II, with the
United States Patent and Trademark Office and the filing of a Grant of Copyright
Security Interest, substantially in the form of Exhibit III, with the United
States Copyright Office (each such Grant of Trademark Security Interest, Grant
of Patent Security Interest and Grant of Copyright Security Interest being
referred to herein as a "GRANT"), (iv) in the case of Equipment that is covered
by a certificate of title, upon the filing with the registrar of motor vehicles
or other appropriate authority in the applicable jurisdiction of an application
requesting the notation of the security interest created hereunder on such
certificate of title, the security interests in the Collateral (other than
Collateral consisting of investment property that is not a certificated security
or deposit account) granted to Secured Party for the ratable benefit of Lenders
and Hedge Agreement Counterparties will constitute perfected security interests
therein (except to the extent that recordation of the Lien is required under the
laws of any foreign country or any subdivision thereof with respect to the
Copyrights, Trademarks and Patents) prior to all other Liens (except for
Permitted Encumbrances), and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly made or
taken.
SECTION 5. FURTHER ASSURANCES.
(a) GENERALLY. Each Grantor agrees that from time to time, at
its own expense, such Grantor will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that Secured Party may reasonably request, in order to perfect and
protect any security interest granted or purported to be granted hereby or to
enable Secured Party to exercise and enforce its rights and remedies
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hereunder with respect to any Collateral. Without limiting the generality of the
foregoing, each Grantor will: (i) at the request of Secured Party, ▇▇▇▇
conspicuously each item of chattel paper included in the Accounts, each Related
Contract and, at the request of Secured Party, each of its records pertaining to
the Collateral, with a legend, in form and substance satisfactory to Secured
Party, indicating that such Collateral is subject to the security interest
granted hereby, (ii) at the request of Secured Party, deliver and pledge to
Secured Party hereunder all promissory notes and other instruments (including
checks) and all original counterparts of chattel paper constituting Collateral,
duly endorsed and accompanied by duly executed instruments of transfer or
assignment, all in form and substance satisfactory to Secured Party, (iii) (A)
file such financing or continuation statements, or amendments thereto, (B)
execute and deliver, and cause to be executed and delivered, agreements
establishing that Secured Party has control of specified items of Collateral and
(C) deliver such other instruments or notices, in each case, as may be necessary
or desirable, or as Secured Party may reasonably request, in order to perfect
and preserve the security interests granted or purported to be granted hereby,
(iv) furnish to Secured Party from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as Secured Party may reasonably request, all in reasonable
detail, (v) at the request of Secured Party, promptly after the acquisition by
such Grantor of any item of Equipment that is covered by a certificate of title
under a statute of any jurisdiction under the law of which indication of a
security interest on such certificate is required as a condition of perfection
thereof, execute and file with the registrar of motor vehicles or other
appropriate authority in such jurisdiction an application or other document
requesting the notation or other indication of the security interest created
hereunder on such certificate of title, (vi) within 30 days after the end of
each calendar quarter, deliver to Secured Party copies of all such applications
or other documents filed during such calendar quarter and copies of all such
certificates of title issued during such calendar quarter indicating the
security interest created hereunder in the items of Equipment covered thereby,
(vii) to the extent permitted under or required under the Credit Agreement,
permit any authorized representatives designated by any Lender to visit and
inspect the Collateral, upon reasonable notice and, except during the
continuance of an Event of Default, no more than once per year, (viii) to the
extent permitted under or required under the Credit Agreement, at Secured
Party's request, appear in and defend any action or proceeding that may affect
such Grantor's title to or Secured Party's security interest in all or any part
of the Collateral, and (ix) use commercially reasonable efforts to obtain any
necessary consents of third parties to the assignment and perfection of a
security interest to Secured Party with respect to any Collateral. Each Grantor
hereby authorizes Secured Party to file one or more financing or continuation
statements, and amendments thereto, relative to all or any part of the
Collateral. Each Grantor agrees that a carbon, photographic or other
reproduction of this Agreement or of a financing statement shall be sufficient
as a financing statement and may be filed as a financing statement in any and
all jurisdictions.
(b) SECURITIES COLLATERAL. Without limiting the generality of
the foregoing Section 5(a), each Grantor agrees that it will, upon obtaining any
additional shares of stock or other securities, in the case of certificated
securities, required to be pledged hereunder, promptly (and in any event within
five Business Days) deliver to Secured Party a Pledge Supplement, duly executed
by such Grantor, in substantially the form of Exhibit IV (a "PLEDGE
SUPPLEMENT"), in respect of the additional Pledged Shares or Pledged Debt or, in
the case of certificated securities, to be pledged pursuant to this Agreement.
Upon each delivery of a Pledge Supplement to Secured Party, the representations
and warranties contained in clauses (i)-(iv) of Section 4(f)
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Security Agreement EXECUTION
hereof shall be deemed to have been made by such Grantor as to the Securities
Collateral described in such Pledge Supplement as of the date thereof. Each
Grantor hereby authorizes Secured Party to attach each Pledge Supplement to this
Agreement and agrees that all Pledged Shares or Pledged Debt of such Grantor
listed on any Pledge Supplement shall for all purposes hereunder be considered
Collateral of such Grantor; provided, the failure of any Grantor to execute a
Pledge Supplement with respect to any additional Pledged Shares or Pledged Debt
pledged pursuant to this Agreement shall not impair the security interest of
Secured Party therein or otherwise adversely affect the rights and remedies of
Secured Party hereunder with respect thereto.
(c) INTELLECTUAL PROPERTY COLLATERAL. Without limiting the
generality of the foregoing Section 5(a), if any Grantor shall hereafter obtain
rights to any new Intellectual Property Collateral material to the operations or
business of such Grantor or become entitled to the benefit of (i) any patent
application or patent or any reissue, division, continuation, renewal, extension
or continuation-in-part of any Patent or any improvement of any Patent, in each
case, material to the operations or business of such Grantor or (ii) any
Copyright Registration, application for Copyright Registration or renewals or
extension of any Copyright, in each case, material to the operations or business
of such Grantor, then in any such case, the provisions of this Agreement shall
automatically apply thereto. Each Grantor shall promptly notify Secured Party in
writing of any of the foregoing rights acquired by such Grantor after the date
hereof and of (i) any Trademark Registrations issued or application for a
Trademark Registration or application for a Patent made, and (ii) any Copyright
Registrations issued or applications for Copyright Registration made, in any
such case, after the date hereof. Promptly after the filing of an application
for any (1) Trademark Registration; (2) Patent; and (3) Copyright Registration,
in each case, material to the operations or business of such Grantor, each
Grantor shall execute and deliver to Secured Party and record in all places
where a Grant is recorded an IP Supplement, substantially in the form of Exhibit
V (an "IP SUPPLEMENT"), pursuant to which such Grantor shall grant to Secured
Party a security interest to the extent of its interest in such Intellectual
Property Collateral; provided, if, in the reasonable judgment of such Grantor,
after due inquiry, granting such interest would result in the grant of a
Trademark Registration or Copyright Registration in the name of Secured Party,
such Grantor shall give written notice to Secured Party as soon as reasonably
practicable and the filing shall instead be undertaken as soon as practicable
but in no case later than immediately following the grant of the applicable
Trademark Registration or Copyright Registration, as the case may be. Upon
delivery to Secured Party of an IP Supplement, Schedules 1(f)(i), 1(f)(ii), and
1(f)(iii) hereto and Schedule A to each Grant, as applicable, shall be deemed
modified to include reference to any right, title or interest in any existing
Intellectual Property Collateral or any Intellectual Property Collateral
included on Schedule A to such IP Supplement. Each Grantor hereby authorizes
Secured Party to modify this Agreement without the signature or consent of any
Grantor by attaching Schedules 1(f)(i), 1(f)(ii), and 1(f)(iii), as applicable,
that have been modified to include such Intellectual Property Collateral or to
delete any reference to any right, title or interest in any Intellectual
Property Collateral in which any Grantor no longer has or claims any right,
title or interest; provided, the failure of any Grantor to execute an IP
Supplement with respect to any additional Intellectual Property Collateral
pledged pursuant to this Agreement shall not impair the security interest of
Secured Party therein or otherwise adversely affect the rights and remedies of
Secured Party hereunder with respect thereto.
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Security Agreement EXECUTION
SECTION 6. CERTAIN COVENANTS OF GRANTORS.
Each Grantor shall:
(a) not use or permit any Collateral to be used unlawfully or
in violation of any provision of this Agreement or any applicable statute,
regulation or ordinance or any policy of insurance covering the Collateral;
(b) notify Secured Party of any change in such Grantor's name,
identity, jurisdiction of incorporation or formation or corporate structure
within 15 days of such change;
(c) if Secured Party gives value to enable such Grantor to
acquire rights in or the use of any Collateral, use such value for such
purposes; and
(d) except as expressly permitted by the Credit Agreement, pay
all taxes, assessments and other governmental charges imposed upon it or any of
its properties or assets or in respect of any of its income, businesses or
franchises before any penalty accrues thereon, and all claims (including claims
for labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided that no such tax, assessment, charge or claim need be
paid if it is being contested in good faith by appropriate proceedings, so long
as (i) such reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor and (ii) in the case of a
charge or claim which has or may become a Lien against any of the Collateral,
such proceedings conclusively operate to stay the sale of any portion of the
Collateral to satisfy such charge or claim.
SECTION 7. SPECIAL COVENANTS WITH RESPECT TO EQUIPMENT AND
INVENTORY.
Each Grantor shall:
(a) keep the Equipment and Inventory owned by such Grantor
(except to the extent permitted under the Credit Agreement for Equipment and
Inventory used or leased in the ordinary course of business) in jurisdictions
where all action that may be necessary or desirable, or that Secured Party may
request, in order to perfect and protect any security interest granted or
purported to be granted hereby, or to enable Secured Party to exercise and
enforce its rights and remedies hereunder, with respect to such Equipment and
Inventory shall have been taken, except in a case where removal of such
Equipment and Inventory from such jurisdictions, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect;
(b) cause the Equipment valued in excess of $1,000,000 owned
by such Grantor to be maintained and preserved in good condition, repair and
working order as when new, ordinary wear and tear excepted, and in accordance
with such Grantor's past practices, and shall forthwith make or cause to be made
all repairs, replacements and other improvements in connection therewith that
are necessary or desirable to such end. Each Grantor shall promptly furnish to
Secured Party a statement respecting any material loss or damage to any of the
Equipment owned by such Grantor;
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Security Agreement EXECUTION
(c) keep, in accordance with past practice, correct and
accurate records of Inventory owned by such Grantor, itemizing and describing
the kind, type and quantity of such Inventory, such Grantor's cost therefor and
(where applicable) the current list prices for such Inventory;
(d) if any Inventory is in possession or control of any of
such Grantor's agents or processors, if the aggregate book value of all such
Inventory exceeds $2,500,000, and in any event upon the occurrence of an Event
of Default, instruct such agent or processor to hold all such Inventory for the
account of Secured Party and subject to the instructions of Secured Party;
(e) promptly upon the issuance and delivery to such Grantor of
any Negotiable Document of Title, deliver such Negotiable Document of Title to
Secured Party; and
(f) each Grantor shall, at its own expense, maintain insurance
with respect to the Equipment and Inventory in accordance with the terms of the
Credit Agreement.
SECTION 8. SPECIAL COVENANTS WITH RESPECT TO ACCOUNTS AND
RELATED CONTRACTS.
(a) Each Grantor will hold and preserve its records concerning
the Accounts and Related Contracts and all originals of all chattel paper that
evidence Accounts and will permit representatives of Secured Party to inspect
such records and chattel paper as provided in the Credit Agreement. Promptly
upon the request of Secured Party, each Grantor shall deliver to Secured Party
complete and correct copies of each Related Contract.
(b) Each Grantor shall, for not less than three (3) years from
the date on which each Account of such Grantor arose, maintain (i) complete
records of such Account, including records of all payments received, credits
granted and merchandise returned, and (ii) all documentation relating thereto.
(c) Except as otherwise provided in this subsection (c), each
Grantor shall continue to collect, at its own expense, all amounts due or to
become due to such Grantor under the Accounts and Related Contracts. In
connection with such collections, each Grantor may take (and, upon the
occurrence and during the continuance of an Event of Default at Secured Party's
direction, shall take) such action as such Grantor or Secured Party may deem
necessary or advisable to enforce collection of amounts due or to become due
under the Accounts; provided, however, that Secured Party shall have the right
at any time, upon the occurrence and during the continuation of an Event of
Default and upon written notice to such Grantor of its intention to do so, to
notify the account debtors or obligors under any Accounts of the assignment of
such Accounts to Secured Party and to direct such account debtors or obligors to
make payment of all amounts due or to become due to such Grantor thereunder
directly to Secured Party, to notify each Person maintaining a lockbox or
similar arrangement to which account debtors or obligors under any Accounts have
been directed to make payment to remit all amounts representing collections on
checks and other payment items from time to time sent to or deposited in such
lockbox or other arrangement directly to Secured Party and, upon such
notification and at the expense of Grantors, to enforce collection of any such
Accounts and to adjust, settle or compromise the amount or payment thereof, in
the same manner and to the same extent as such
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Security Agreement EXECUTION
Grantor might have done. After receipt by such Grantor of the notice from
Secured Party referred to in the proviso to the preceding sentence, (i) all
amounts and proceeds (including checks and other instruments) received by such
Grantor in respect of the Accounts and the Related Contracts shall be received
in trust for the benefit of Secured Party hereunder, shall be segregated from
other funds of such Grantor and shall be forthwith paid over or delivered to
Secured Party in the same form as so received (with any necessary endorsement)
to be held as cash Collateral and applied as provided by Section 17, and (ii)
such Grantor shall not adjust, settle or compromise the amount or payment of any
Account, or release wholly or partly any account debtor or obligor thereof, or
allow any credit or discount thereon.
(d) Each Grantor shall at its expense:
(i) if, in Grantor's reasonable judgment, consistent with
sound business practices, perform and observe all terms and provisions
of the Related Contracts to be performed or observed by it, maintain
the Related Contracts in full force and effect, enforce the Related
Contracts in accordance with their terms, and take all such action to
such end as may be from time to time requested by Secured Party; and
(ii) upon the occurrence of an Event of Default and the
reasonable request of Secured Party, furnish to Secured Party, promptly
upon receipt thereof, copies of all notices, requests and other
documents received by such Grantor under or pursuant to the Related
Contracts, and from time to time (A) furnish to Secured Party such
information and reports regarding the Related Contracts as Secured
Party may reasonably request and (B) upon request of Secured Party make
to the parties to such Related Contracts such demands and requests for
information and reports or for action as such Grantor is entitled to
make under the Related Contracts.
(e) Upon the occurrence and during the continuance of an Event
of Default, no Grantor shall:
(i) cancel or terminate any of the material Related Contracts
or consent to or accept any cancellation or termination thereof;
(ii) amend or otherwise modify the material Related Contracts
or give any consent, waiver or approval thereunder;
(iii) waive any default under or breach of the material
Related Contracts;
(iv) consent to or permit or accept any prepayment of amounts
to become due under or in connection with the material Related
Contracts, except as expressly provided therein; or
(v) take any other action in connection with the Related
Contracts that could reasonably be expected to materially impair the
value of the interest or rights of such Grantor thereunder or that
could reasonably be expected to materially impair the interest or
rights of Secured Party.
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Security Agreement EXECUTION
SECTION 9. SPECIAL COVENANTS WITH RESPECT TO THE SECURITIES
COLLATERAL.
(a) DELIVERY. Each Grantor agrees that all certificates or
instruments representing or evidencing the Securities Collateral shall be
delivered to and held by or on behalf of Secured Party pursuant hereto and shall
be in suitable form for transfer by delivery or, as applicable, shall be
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 Secured Party. Secured Party shall have the right at
any time to exchange certificates or instruments representing or evidencing
Securities Collateral for certificates or instruments of smaller or larger
denominations.
(b) COVENANTS. Each Grantor shall (i) not, except as expressly
permitted by the Credit Agreement, permit any issuer of Pledged Shares to merge
or consolidate unless all the outstanding Capital Stock of the surviving or
resulting Person is, upon such merger or consolidation, pledged hereunder and no
cash, securities or other property is distributed in respect of the outstanding
shares of any other constituent corporation; provided, if the surviving or
resulting Person upon any such merger or consolidation involving an issuer of
Pledged Shares which is a controlled foreign corporation is a controlled foreign
corporation, then such Grantor shall only be required to pledge outstanding
capital stock of such surviving or resulting Person possessing up to but not
exceeding 65% of the voting power of all classes of capital stock of such issuer
entitled to vote; (ii) cause each issuer of Pledged Shares not to issue any
stock, other equity interests or other securities in addition to or in
substitution for the Pledged Shares issued by such issuer, except to such
Grantor; (iii) pledge hereunder, immediately upon its acquisition (directly or
indirectly) thereof, any and all additional shares of stock, other equity
interests or other securities of each issuer of Pledged Shares; (iv) pledge
hereunder, immediately upon its acquisition (directly or indirectly) thereof,
any and all shares of stock or other equity interests of any Person that, after
the date of this Agreement, becomes, as a result of any occurrence, a direct
Subsidiary of such Grantor; provided, notwithstanding anything contained in this
clause (iv) to the contrary, such Grantor shall only be required to pledge the
outstanding capital stock of a controlled foreign corporation possessing up to
but not exceeding 65% of the voting power of all classes of capital stock of
such controlled foreign corporation entitled to vote; (v) pledge hereunder,
immediately upon their issuance, any and all instruments or other evidences of
additional indebtedness from time to time owed to such Grantor by any obligor on
the Pledged Debt; (vi) pledge hereunder, immediately upon their issuance, any
and all instruments or other evidences of indebtedness from time to time owed to
such Grantor by any Person that after the date of this Agreement becomes, as a
result of any occurrence, a Subsidiary of such Grantor; (vii) promptly deliver
to Secured Party all written notices received by it with respect to the
Securities Collateral; and (viii), at the request of Secured Party upon the
occurrence of an Event of Default or Potential Event of Default, promptly
execute and deliver to Secured Party an agreement providing for the control, as
that term is defined in the UCC, by Secured Party of all securities entitlements
and securities accounts of such Grantor.
(c) VOTING AND DISTRIBUTIONS. So long as no Event of Default
shall have occurred and be continuing, (i) each Grantor shall be entitled to
exercise any and all voting and other consensual rights pertaining to the
Securities Collateral or any part thereof for any purpose not inconsistent with
the terms of this Agreement or the Credit Agreement; provided, no Grantor shall
exercise or refrain from exercising any such right if Secured Party shall have
notified such
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Security Agreement EXECUTION
Grantor that, in Secured Party's judgment, such action would have a material
adverse effect on the value of the Securities Collateral or any part thereof;
and provided further, such Grantor shall give Secured Party at least five
Business Days' prior written notice of the manner in which it intends to
exercise, or the reasons for refraining from exercising, any such right (it
being understood, however, that neither (A) the voting by such Grantor of any
Pledged Shares for or such Grantor's consent to the election of directors or
other members of a governing body of an issuer of Pledged Shares at a regularly
scheduled annual or other meeting of stockholders or holders of equity interests
or with respect to incidental matters at any such meeting, nor (B) such
Grantor's consent to or approval of any action otherwise permitted under this
Agreement and the Credit Agreement shall be deemed inconsistent with the terms
of this Agreement or the Credit Agreement within the meaning of this Section,
and no notice of any such voting or consent need be given to Secured Party);
(ii) each Grantor shall be entitled to receive and retain, and to utilize free
and clear of the Lien of this Agreement, any and all dividends, other
distributions and interest paid in respect of the Securities Collateral;
provided, any and all (A) dividends, distributions and interest paid or payable
other than in cash in respect of, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange for, any
Securities Collateral, (B) dividends and other distributions paid or payable in
cash in respect of any Securities Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus, and (C) cash paid, payable or otherwise
distributed in respect of principal or in redemption of or in exchange for any
Securities Collateral, shall be, and shall forthwith be delivered to Secured
Party to hold as, Securities Collateral and shall, if received by such Grantor,
be received in trust for the benefit of Secured Party, be segregated from the
other property or funds of such Grantor and be forthwith delivered to Secured
Party as Securities Collateral in the same form as so received (with all
necessary endorsements); provided that the foregoing shall not apply to (x) any
Restricted Junior Payments permitted under subsection 7.5 of the Credit
Agreement or (y) any intercompany indebtedness permitted under subsection
7.1(iv) of the Credit Agreement; and (iii) Secured Party shall promptly execute
and deliver (or cause to be executed and delivered) to such Grantor all such
proxies, dividend payment orders and other instruments as such Grantor may from
time to time reasonably request for the purpose of enabling such Grantor to
exercise the voting and other consensual rights which it is entitled to exercise
pursuant to clause (i) above and to receive the dividends, distributions,
principal or interest payments which it is authorized to receive and retain
pursuant to clause (ii) above.
Upon the occurrence and during the continuation of an Event of
Default, (x) upon written notice from Secured Party to any Grantor, all rights
of such Grantor to exercise the voting and other consensual rights which it
would otherwise be entitled to exercise pursuant hereto shall cease, and all
such rights shall thereupon become vested in Secured Party who shall thereupon
have the sole right to exercise such voting and other consensual rights; (y) all
rights of such Grantor to receive the dividends, other distributions and
interest payments which it would otherwise be authorized to receive and retain
pursuant hereto shall cease, and all such rights shall thereupon become vested
in Secured Party who shall thereupon have the sole right to receive and hold as
Securities Collateral such dividends, other distributions and interest payments;
and (z) all dividends, principal, interest payments and other distributions
which are received by such Grantor contrary to the provisions of clause (ii) of
the immediately preceding paragraph or clause (y) above shall be received in
trust for the benefit of Secured Party, shall be segregated from
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Security Agreement EXECUTION
other funds of such Grantor and shall forthwith be paid over to Secured Party as
Securities Collateral in the same form as so received (with any necessary
endorsements).
In order to permit Secured Party to exercise the voting and
other consensual rights which it may be entitled to exercise pursuant hereto and
to receive all dividends and other distributions which it may be entitled to
receive hereunder, (I) each Grantor shall promptly execute and deliver (or cause
to be executed and delivered) to Secured Party all such proxies, dividend
payment orders and other instruments as Secured Party may from time to time
reasonably request, and (II) without limiting the effect of clause (I) above,
each Grantor hereby grants to Secured Party an irrevocable proxy to vote the
Pledged Shares and to exercise all other rights, powers, privileges and remedies
to which a holder of the Pledged Shares would be entitled (including giving or
withholding written consents of shareholders or other holders of equity
interests, calling special meetings of shareholders or other holders of equity
interests and voting at such meetings), which proxy shall be effective,
automatically and without the necessity of any action (including any transfer of
any Pledged Shares on the record books of the issuer thereof) by any other
Person (including the issuer of the Pledged Shares or any officer or agent
thereof), upon the occurrence of an Event of Default and which proxy shall
terminate upon the cure or waiver of such Event of Default or the payment in
full of the Secured Obligations.
SECTION 10. SPECIAL COVENANTS WITH RESPECT TO THE INTELLECTUAL
PROPERTY COLLATERAL.
(a) Each Grantor shall:
(i) diligently keep reasonable records respecting the
Intellectual Property Collateral and at all times keep at least one
complete set of its records concerning such Collateral at its chief
executive office or principal place of business;
(ii) use commercially reasonable efforts so as not to permit
the inclusion in any contract to which it hereafter becomes a party of
any provision that could or might in any way impair or prevent the
creation of a security interest in, or the assignment of, such
Grantor's rights and interests in any property included within the
definitions of any Intellectual Property Collateral acquired under such
contracts;
(iii) take commercially reasonable steps to protect the
secrecy of all trade secrets relating to the products and services sold
or delivered under or in connection with the Intellectual Property
Collateral, including, without limitation, where appropriate entering
into confidentiality agreements with employees and labeling and
restricting access to secret information and documents;
(iv) use proper statutory notice in connection with its use of
any of the Intellectual Property Collateral;
(v) use a commercially appropriate standard of quality (which
may or may not be consistent with such Grantor's past practices) in the
manufacture, sale and delivery of products and services sold or
delivered under or in connection with the Trademarks; and
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Security Agreement EXECUTION
(vi) furnish to Secured Party from time to time at Secured
Party's reasonable request statements and schedules further identifying
and describing any Intellectual Property Collateral and such other
reports in connection with such Collateral, all in reasonable detail;
provided, however, that Secured Party shall not make such request more
than once per year except during the continuation of an Event of
Default.
(b) Except as otherwise provided in this Section 10, each
Grantor shall continue to collect, at its own expense, all amounts due or to
become due to such Grantor in respect of the Intellectual Property Collateral or
any portion thereof. In connection with such collections, each Grantor may take
(and, after the occurrence and during the continuance of any Event of Default at
Secured Party's reasonable direction, shall take) such action as such Grantor or
Secured Party may deem reasonably necessary or advisable to enforce collection
of such amounts; provided, Secured Party shall have the right at any time, upon
the occurrence and during the continuation of an Event of Default and upon
written notice to such Grantor of its intention to do so, to notify the obligors
with respect to any such amounts of the existence of the security interest
created hereby and to direct such obligors to make payment of all such amounts
directly to Secured Party, and, upon such notification and at the expense of
such Grantor, to enforce collection of any such amounts and to adjust, settle or
compromise the amount or payment thereof, in the same manner and to the same
extent as such Grantor might have done. After receipt by any Grantor of the
notice from Secured Party referred to in the proviso to the preceding sentence
and during the continuation of any Event of Default, (i) all amounts and
proceeds (including checks and other instruments) received by each Grantor in
respect of amounts due to such Grantor in respect of the Intellectual Property
Collateral or any portion thereof shall be received in trust for the benefit of
Secured Party hereunder, shall be segregated from other funds of such Grantor
and shall be forthwith paid over or delivered to Secured Party in the same form
as so received (with any necessary endorsement) to be held as cash Collateral
and applied as provided by Section 17, and (ii) such Grantor shall not adjust,
settle or compromise the amount or payment of any such amount or release wholly
or partly any obligor with respect thereto or allow any credit or discount
thereon.
(c) Each Grantor shall have the duty diligently to prosecute,
file and/or make, unless and until such Grantor, in its commercially reasonable
judgment, decides otherwise, (i) any application relating to any of the
Intellectual Property Collateral owned, held or used by such Grantor and
identified on Schedules 1(f)(i), 1(f)(ii) or 1(f)(iii), as applicable, that is
pending as of the date of this Agreement, (ii) any Copyright Registration on any
existing or future unregistered but copyrightable works (except for works of
nominal commercial value or with respect to which such Grantor has determined in
the exercise of its commercially reasonable judgment that it shall not seek
registration), (iii) application on any future patentable but unpatented
innovation or invention comprising Intellectual Property Collateral, and (iv)
any Trademark opposition and cancellation proceedings, renew Trademark
Registrations and Copyright Registrations and do any and all acts which are
necessary or desirable to preserve and maintain all rights in all Intellectual
Property Collateral. Any expenses incurred in connection therewith shall be
borne solely by Grantors. Subject to the foregoing, each Grantor shall give
Secured Party prior written notice of any abandonment of any Intellectual
Property Collateral or any pending patent application or any Patent, in each
case, material to its operations or business.
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Security Agreement EXECUTION
(d) Except as provided herein, each Grantor shall have the
right to commence and prosecute in its own name, as real party in interest, for
its own benefit and at its own expense, such suits, proceedings or other actions
for infringement, unfair competition, dilution, misappropriation or other
damage, or reexamination or reissue proceedings as are necessary to protect the
Intellectual Property Collateral. Secured Party shall provide, at such Grantor's
expense, all reasonable and necessary cooperation in connection with any such
suit, proceeding or action including, without limitation, joining as a necessary
party. Each Grantor shall promptly, following its becoming aware thereof, notify
Secured Party of the institution of, or of any adverse determination in, any
proceeding (whether in the United States Patent and Trademark Office, the United
States Copyright Office or any federal, state, local or foreign court) or
regarding such Grantor's ownership, right to use, or interest in any
Intellectual Property Collateral material to its operations or business. Each
Grantor shall provide to Secured Party any information with respect thereto
requested by Secured Party.
(e) In addition to, and not by way of limitation of, the
granting of a security interest in the Collateral pursuant hereto, each Grantor,
effective upon the occurrence and during the continuation of an Event of
Default, hereby assigns, transfers and conveys to Secured Party the nonexclusive
right and license to use all trademarks, trade names, copyrights, patents or
technical processes (including, without limitation, the Intellectual Property
Collateral) owned or used by such Grantor that relate to the Collateral and any
other collateral granted by such Grantor as security for the Secured
Obligations, together with any goodwill associated therewith, all to the extent
necessary to enable Secured Party to realize on the Collateral in accordance
with this Agreement and to enable any transferee or assignee of the Collateral
to enjoy the benefits of the Collateral. This right shall inure to the benefit
of all successors, assigns and transferees of Secured Party and its successors,
assigns and transferees, whether by voluntary conveyance, operation of law,
assignment, transfer, foreclosure, deed in lieu of foreclosure or otherwise.
Such right and license shall be granted free of charge, without requirement that
any monetary payment whatsoever be made to such Grantor. In addition, each
Grantor hereby grants to Secured Party and its employees, representatives and
agents the right to visit such Grantor's and any of its Affiliate's or
subcontractor's plants, facilities and other places of business that are
utilized in connection with the manufacture, production, inspection, storage or
sale of products and services sold or delivered under any of the Intellectual
Property Collateral (or which were so utilized during the prior six month
period), and to inspect the quality control and all other records relating
thereto upon reasonable advance written notice to such Grantor and at reasonable
dates and times and as often as may be reasonably requested. If and to the
extent that any Grantor is permitted to license the Intellectual Property
Collateral, Secured Party shall promptly enter into a non-disturbance agreement
or other similar arrangement, at such Grantor's request and expense, with such
Grantor and any licensee of any Intellectual Property Collateral permitted
hereunder in form and substance reasonably satisfactory to Secured Party
pursuant to which (i) Secured Party shall agree not to disturb or interfere with
such licensee's rights under its license agreement with such Grantor so long as
such licensee is not in default thereunder, and (ii) such licensee shall
acknowledge and agree that the Intellectual Property Collateral licensed to it
is subject to the security interest created in favor of Secured Party and the
other terms of this Agreement.
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Security Agreement EXECUTION
SECTION 11. COLLATERAL ACCOUNT.
Secured Party is hereby authorized to establish and maintain
at its office at Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇, or at any other
location determined by Administrative Agent as a blocked deposit account in the
name of Borrower over which Secured Party has control in accordance with Section
9-104 of the UCC, a restricted deposit account designated as "Brand Services,
Inc. Collateral Account". All amounts at any time held in the Collateral Account
shall be beneficially owned by Grantors but shall be held in the name of Secured
Party hereunder, for the benefit of Lenders, as collateral security for the
Secured Obligations upon the terms and conditions set forth herein. Grantors
shall have no right to withdraw, transfer or, except as expressly set forth
herein, otherwise receive any funds deposited into the Collateral Account.
Anything contained herein to the contrary notwithstanding, the Collateral
Account shall be subject to such applicable laws, and such applicable
regulations of the Board of Governors of the Federal Reserve System and of any
other appropriate banking or Government Authority, as may now or hereafter be in
effect. All deposits of funds in the Collateral Account shall be made by wire
transfer (or, if applicable, by intra-bank transfer from another account of a
Grantor) of immediately available funds, in each case addressed in accordance
with instructions of Secured Party. Each Grantor shall, promptly after
initiating a transfer of funds to the Collateral Account, give notice to Secured
Party by telefacsimile of the date, amount and method of delivery of such
deposit. Cash held by Secured Party in the Collateral Account shall not be
invested by Secured Party but instead shall be maintained as a cash deposit in
the Collateral Account pending application thereof as elsewhere provided in this
Agreement. To the extent permitted under Regulation Q of the Board of Governors
of the Federal Reserve System, any cash held in the Collateral Account shall
bear interest at the standard rate paid by Secured Party to its customers for
deposits of like amounts and terms. Subject to Secured Party's rights hereunder,
any interest earned on deposits of cash in the Collateral Account shall be
deposited directly in, and held in the Collateral Account.
SECTION 12. SECURED PARTY APPOINTED ATTORNEY-IN-FACT.
Each Grantor hereby irrevocably appoints Secured Party as such
Grantor's attorney-in-fact, with full authority in the place and stead of such
Grantor and in the name of such Grantor, Secured Party or otherwise, from time
to time in Secured Party's discretion to take any action and to execute any
instrument that Secured Party may deem necessary or advisable to accomplish the
purposes of this Agreement, including without limitation:
(a) upon the occurrence and during the continuance of an Event
of Default, to obtain and adjust insurance required to be maintained by such
Grantor or paid to Secured Party pursuant to Section 7;
(b) upon the occurrence and during the continuance of an Event
of Default, to ask for, demand, collect, ▇▇▇ for, recover, compound, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(c) upon the occurrence and during the continuance of an Event
of Default, to receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clauses (a) and (b) above;
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Security Agreement EXECUTION
(d) upon the occurrence and during the continuance of an Event
of Default, to file any claims or take any action or institute any proceedings
that Secured Party may deem necessary or desirable for the collection of any of
the Collateral or otherwise to enforce the rights of Secured Party with respect
to any of the Collateral;
(e) to pay or discharge taxes or Liens (other than Liens
permitted under this Agreement or the Credit Agreement) levied or placed upon or
threatened against the Collateral, the legality or validity thereof and the
amounts necessary to discharge the same to be determined by Secured Party in its
sole discretion, any such payments made by Secured Party to become obligations
of such Grantor to Secured Party, due and payable immediately without demand;
(f) upon the occurrence and during the continuance of an Event
of Default, to sign and endorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications and notices in connection with Accounts and other documents
relating to the Collateral; and
(g) upon the occurrence and during the continuance of an Event
of Default, generally to sell, transfer, pledge, make any agreement with respect
to or otherwise deal with any of the Collateral as fully and completely as
though Secured Party were the absolute owner thereof for all purposes, and to
do, at Secured Party's option and Grantors' expense, at any time or from time to
time, all acts and things that Secured Party deems necessary to protect,
preserve or realize upon the Collateral and Secured Party's security interest
therein in order to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do.
SECTION 13. SECURED PARTY MAY PERFORM.
Upon the occurrence and during the continuance of an Event of
Default, if any Grantor fails to perform any agreement contained herein, Secured
Party may itself perform, or cause performance of, such agreement, and the
expenses of Secured Party incurred in connection therewith shall be payable by
Grantors under Section 18(b).
SECTION 14. STANDARD OF CARE.
The powers conferred on Secured Party hereunder are solely to
protect its interest in the Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the exercise of reasonable care in the
custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, Secured Party shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral. Secured Party
shall be deemed to have exercised reasonable care in the custody and
preservation of Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which Secured Party accords its own
property.
SECTION 15. REMEDIES.
(a) Generally. If any Event of Default shall have occurred and
be continuing, Secured Party may exercise in respect of the Collateral, in
addition to all other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default under
the UCC (whether or not the UCC applies to the affected Collateral), and
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Security Agreement EXECUTION
also may, in each case, to the extent permitted by applicable law (i) require
each Grantor to, and each Grantor hereby agrees that it will at its expense and
upon request of Secured Party forthwith, assemble all or part of the Collateral
as directed by Secured Party and make it available to Secured Party at a place
to be designated by Secured Party that is reasonably convenient to both parties,
(ii) enter onto the property where any Collateral is located and take possession
thereof with or without judicial process, (iii) prior to the disposition of the
Collateral, store, process, repair or recondition the Collateral or otherwise
prepare the Collateral for disposition in any manner to the extent Secured Party
deems appropriate, (iv) take possession of any Grantor's premises or place
custodians in exclusive control thereof, remain on such premises and use the
same and any of such Grantor's equipment for the purpose of completing any work
in process, taking any actions described in the preceding clause (iii) and
collecting any Secured Obligation, (v) without notice except as specified below,
sell the Collateral or any part thereof in one or more parcels at public or
private sale, at any of Secured Party's offices or elsewhere, for cash, on
credit or for future delivery, at such time or times and at such price or prices
and upon such other terms as Secured Party may deem commercially reasonable,
(vi) exercise dominion and control over and refuse to permit further withdrawals
from any Deposit Account maintained with Secured Party or any Lender and provide
instructions directing the disposition of funds in Deposit Accounts not
maintained with Secured Party or any Lender and (vii) provide entitlement orders
with respect to security entitlements and other investment property constituting
a part of the Collateral and, without notice to any Grantor, transfer to or
register in the name of Secured Party or any of its nominees any or all of the
Securities Collateral. Secured Party or any Lender or any Hedge Agreement
Counterparty may be the purchaser of any or all of the Collateral at any such
sale and Secured Party, as agent for and representative of Lenders and Hedge
Agreement Counterparties (but not any Lender or Hedge Agreement Counterparty in
its individual capacity unless Requisite Obligees (as defined in Section 20(a))
shall otherwise agree in writing), shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion of
the Collateral sold at any such public sale, to use and apply any of the Secured
Obligations as a credit on account of the purchase price for any Collateral
payable by Secured Party at such sale. Each purchaser at any such sale shall
hold the property sold absolutely free from any claim or right on the part of
any Grantor, and each Grantor hereby waives (to the extent permitted by
applicable law) all rights of redemption, stay and/or appraisal which it now has
or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted. Each Grantor agrees that, to the extent notice of
sale shall be required by law, at least ten days' notice to such Grantor of the
time and place of any public sale or the time after which any private sale is to
be made shall constitute reasonable notification. Secured Party shall not be
obligated to make any sale of Collateral regardless of notice of sale having
been given. Secured Party may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. Each Grantor hereby waives any claims against Secured Party arising
by reason of the fact that the price at which any Collateral may have been sold
at such a private sale was less than the price which might have been obtained at
a public sale, even if Secured Party accepts the first offer received and does
not offer such Collateral to more than one offeree. If the proceeds of any sale
or other disposition of the Collateral are insufficient to pay all the Secured
Obligations, Grantors shall be jointly and severally liable for the deficiency
and the fees of any attorneys employed by Secured Party to collect such
deficiency. Each Grantor further agrees that a breach of any of the covenants
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Security Agreement EXECUTION
contained in this Section will cause irreparable injury to Secured Party, that
Secured Party has no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section shall be
specifically enforceable against such Grantor, and each Grantor hereby waives
and agrees not to assert any defenses against an action for specific performance
of such covenants except for a defense that no default has occurred giving rise
to the Secured Obligations becoming due and payable prior to their stated
maturities.
(b) SECURITIES COLLATERAL.
(i) Each Grantor recognizes that, by reason of certain
prohibitions contained in the Securities Act and applicable state
securities laws, Secured Party may be compelled, with respect to any
sale of all or any part of the Securities Collateral conducted without
prior registration or qualification of such Securities Collateral under
the Securities Act and/or such state securities laws, to limit
purchasers to those who will agree, among other things, to acquire the
Securities Collateral for their own account, for investment and not
with a view to the distribution or resale thereof. Each Grantor
acknowledges that any such private sales may be at prices and on terms
less favorable than those obtainable through a public sale without such
restrictions (including a public offering made pursuant to a
registration statement under the Securities Act) and, notwithstanding
such circumstances and the registration rights granted to Secured Party
by such Grantor pursuant hereto and notwithstanding the provisions of
Section 9-610(b) of the UCC, which each Grantor hereby waives, each
Grantor agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner and that Secured Party shall
have no obligation to engage in public sales and no obligation to delay
the sale of any Securities Collateral for the period of time necessary
to permit the issuer thereof to register it for a form of public sale
requiring registration under the Securities Act or under applicable
state securities laws, even if such issuer would, or should, agree to
so register it. If Secured Party determines to exercise its right to
sell any or all of the Securities Collateral, upon written request,
each Grantor shall and shall cause each issuer of any Pledged Shares to
be sold hereunder from time to time to furnish to Secured Party all
such information as Secured Party may request in order to determine the
number of shares and other instruments included in the Securities
Collateral which may be sold by Secured Party in exempt transactions
under the Securities Act and the rules and regulations of the
Securities and Exchange Commission thereunder, as the same are from
time to time in effect.
(ii) If Secured Party shall determine to exercise its right to
sell all or any of the Securities Collateral pursuant to this Section,
each Grantor agrees that, upon request of Secured Party (which request
may be made by Secured Party in its reasonable discretion), such
Grantor will, at its own expense (A) execute and deliver, and cause
each issuer of the Securities Collateral contemplated to be sold and
the directors and officers thereof to execute and deliver, all such
instruments and documents, and do or cause to be done all such other
acts and things, as may be necessary or, in the reasonable opinion of
Secured Party, advisable to register such Securities Collateral under
the provisions of the Securities Act and to use best efforts to cause
the registration statement relating thereto to become effective and to
remain effective for such period as prospectuses are required by law to
be furnished, and to make all amendments and supplements thereto and to
the
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Security Agreement EXECUTION
related prospectus which, in the reasonable opinion of Secured Party,
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; (B) use its best efforts to
qualify the Securities Collateral under all applicable state securities
or "Blue Sky" laws and to obtain all necessary governmental approvals
for the sale of the Securities Collateral, as reasonably requested by
Secured Party; (C) cause each such issuer to make available to its
security holders, as soon as practicable, an earnings statement which
will satisfy the provisions of Section 11(a) of the Securities Act; (D)
do or cause to be done all such other acts and things as may be
necessary to make such sale of the Securities Collateral or any part
thereof valid and binding and in compliance with applicable law; and
(E) bear all costs and expenses, including reasonable attorneys' fees,
of carrying out its obligations under this Section.
(iii) Without limiting the generality of subsections 10.2 and
10.3 of the Credit Agreement, in the event of any public sale described
herein, each Grantor agrees to indemnify and hold harmless Secured
Party, and each Lender and each Hedge Agreement Counterparty and each
of their respective directors, officers, employees and agents from and
against any loss, fee, cost, expense, damage, liability or claim, joint
or several, to which any such Persons may become subject or for which
any of them may be liable, under the Securities Act or otherwise,
insofar as such losses, fees, costs, expenses, damages, liabilities or
claims (or any litigation commenced or threatened in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus,
registration statement, prospectus or other such document published or
filed in connection with such public sale, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse Secured Party and such other Persons for any legal or
other expenses reasonably incurred by Secured Party and such other
Persons in connection with any litigation, of any nature whatsoever,
commenced or threatened in respect thereof (including any and all fees,
costs and expenses whatsoever reasonably incurred by Secured Party and
such other Persons and counsel for Secured Party and such other Persons
in investigating, preparing for, defending against or providing
evidence, producing documents or taking any other action in respect of,
any such commenced or threatened litigation or any claims asserted).
This indemnity shall be in addition to any liability which any Grantor
may otherwise have and shall extend upon the same terms and conditions
to each Person, if any, that controls Secured Party or such Persons
within the meaning of the Securities Act.
(c) COLLATERAL ACCOUNT. If an Event of Default has occurred
and is continuing and, in accordance with Section 8 of the Credit Agreement,
Borrower is required to pay to Secured Party an amount (the "AGGREGATE AVAILABLE
AMOUNT") equal to the maximum amount that may at any time be drawn under all
Letters of Credit then outstanding under the Credit Agreement, Borrower shall
deliver funds in such an amount for deposit in the Collateral Account. If for
any reason the aggregate amount delivered by Borrower for deposit in the
Collateral Account as aforesaid is less than the Aggregate Available Amount, the
aggregate amount so delivered by Borrower shall be apportioned among all
outstanding Letters of Credit for purposes of this Section in accordance with
the ratio of the maximum amount available for
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Security Agreement EXECUTION
drawing under each such Letter of Credit (as to such Letter of Credit, the
"MAXIMUM AVAILABLE AMOUNT") to the Aggregate Available Amount. Upon any drawing
under any outstanding Letter of Credit in respect of which Borrower has
deposited in the Collateral Account any amounts described above, Secured Party
shall apply such amounts to reimburse the Issuing Lender for the amount of such
drawing. In the event of cancellation or expiration of any Letter of Credit in
respect of which Borrower has deposited in the Collateral Account any amounts
described above, or in the event of any reduction in the Maximum Available
Amount under such Letter of Credit, Secured Party shall apply the amount then on
deposit in the Collateral Account in respect of such Letter of Credit (less, in
the case of such a reduction, the Maximum Available Amount under such Letter of
Credit immediately after such reduction) first, to the payment of any amounts
payable to Secured Party pursuant to Section 17 hereof, second, to the extent of
any excess, to the cash collateralization pursuant to the terms of this
Agreement of any outstanding Letters of Credit in respect of which Borrower has
failed to pay all or a portion of the amounts described above (such cash
collateralization to be apportioned among all such Letters of Credit in the
manner described above), third, to the extent of any further excess, to the
payment of any other outstanding Secured Obligations in such order as Secured
Party shall elect, and fourth, to the extent of any further excess, to the
payment to whomsoever shall be lawfully entitled to receive such funds.
SECTION 16. ADDITIONAL REMEDIES FOR INTELLECTUAL PROPERTY
COLLATERAL.
(a) Anything contained herein to the contrary notwithstanding,
upon the occurrence and during the continuation of an Event of Default, (i)
Secured Party shall have the right (but not the obligation) to bring suit, in
the name of any Grantor, Secured Party or otherwise, to enforce any Intellectual
Property Collateral, in which event each Grantor shall, at the request of
Secured Party, do any and all lawful acts and execute any and all documents
required by Secured Party in aid of such enforcement and each Grantor shall
promptly, upon demand, reimburse and indemnify Secured Party as provided in
Sections 10.2 and 10.3 of the Credit Agreement and Section 18 hereof, as
applicable, in connection with the exercise of its rights under this Section,
and, to the extent that Secured Party shall elect not to bring suit to enforce
any Intellectual Property Collateral material to its operations or business as
provided in this Section, each Grantor agrees to use all reasonable measures,
whether by action, suit, proceeding or otherwise, to prevent the infringement of
any of the Intellectual Property Collateral by others and for that purpose
agrees to use its commercially reasonable judgment in maintaining any action,
suit or proceeding against any Person so infringing reasonably necessary to
prevent such infringement; (ii) upon written demand from Secured Party, each
Grantor shall execute and deliver to Secured Party an assignment or assignments
of the Intellectual Property Collateral and such other documents as are
necessary or appropriate to carry out the intent and purposes of this Agreement;
(iii) each Grantor agrees that such an assignment and/or recording shall be
applied to reduce the Secured Obligations outstanding only to the extent that
Secured Party (or any Lender) receives cash proceeds in respect of the sale of,
or other realization upon, the Intellectual Property Collateral; and (iv) within
five Business Days after written notice from Secured Party, each Grantor shall
make available to Secured Party, to the extent within such Grantor's power and
authority, such personnel in such Grantor's employ on the date of such Event of
Default as Secured Party may reasonably designate, by name, title or job
responsibility, to permit such Grantor to continue, directly or indirectly, to
produce, advertise and sell the products and services sold or delivered by such
Grantor under or in connection with the
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Security Agreement EXECUTION
Trademarks, Trademark Registrations and Trademark Rights, such persons to be
available to perform their prior functions on Secured Party's behalf and to be
compensated by Secured Party at such Grantor's expense on a per diem, pro-rata
basis consistent with the salary and benefit structure applicable to each as of
the date of such Event of Default.
(b) If (i) an Event of Default shall have occurred and, by
reason of cure, waiver, modification, amendment or otherwise, no longer be
continuing, (ii) no other Event of Default shall have occurred and be
continuing, (iii) an assignment to Secured Party of any rights, title and
interests in and to the Intellectual Property Collateral shall have been
previously made, and (iv) the Secured Obligations shall not have become
immediately due and payable, upon the written request of any Grantor, Secured
Party shall promptly execute and deliver to such Grantor such assignments as may
be necessary to reassign to such Grantor any such rights, title and interests as
may have been assigned to Secured Party as aforesaid, subject to any disposition
thereof that may have been made by Secured Party; provided, after giving effect
to such reassignment, Secured Party's security interest granted pursuant hereto,
as well as all other rights and remedies of Secured Party granted hereunder,
shall continue to be in full force and effect; and provided further, the rights,
title and interests so reassigned shall be free and clear of all Liens other
than Liens (if any) encumbering such rights, title and interest at the time of
their assignment to Secured Party and Permitted Encumbrances.
SECTION 17. APPLICATION OF PROCEEDS.
Except as expressly provided elsewhere in this Agreement, all
proceeds received by Secured Party in respect of any sale of, collection from,
or other realization upon all or any part of the Collateral shall be applied as
provided in the Credit Agreement.
SECTION 18. INDEMNITY AND EXPENSES.
(a) Grantors jointly and severally agree to indemnify Secured
Party, each Lender and each Hedge Agreement Counterparty from and against any
and all claims, losses and liabilities in any way relating to, growing out of or
resulting from this Agreement and the transactions contemplated hereby
(including without limitation enforcement of this Agreement), except to the
extent such claims, losses or liabilities result from Secured Party's or such
Lender's or such Hedge Agreement Counterparty's gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction.
(b) Grantors jointly and severally agree to pay to Secured
Party upon demand the amount of any and all costs and expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents, that
Secured Party may incur in connection with (i) the administration of this
Agreement, (ii) the custody, preservation, use or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of Secured Party hereunder, or (iv)
the failure by any Grantor to perform or observe any of the provisions hereof.
(c) The obligations of Grantors in this Section 18 shall (i)
survive the termination of this Agreement and the discharge of Grantors' other
obligations under this Agreement, the Lender Hedge Agreements, the Credit
Agreement and the other Loan Documents
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Security Agreement EXECUTION
and (ii), as to any Grantor that is a party to a Subsidiary Guaranty, be subject
to the provisions of Section 1(b) thereof.
SECTION 19. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS;
TERMINATION AND RELEASE.
(a) This Agreement shall create a continuing security interest
in the Collateral and shall (i) remain in full force and effect until the
payment in full of the Secured Obligations, the cancellation or termination of
the Commitments and the cancellation or expiration of all outstanding Letters of
Credit, (ii) be binding upon Grantors and their respective successors and
assigns, and (iii) inure, together with the rights and remedies of Secured Party
hereunder, to the benefit of Secured Party and its successors, transferees and
assigns. Without limiting the generality of the foregoing clause (iii), (A) but
subject to the provisions of subsection 10.1 of the Credit Agreement, any Lender
may assign or otherwise transfer any Loans held by it to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to Lenders herein or otherwise and (B) any Hedge Agreement
Counterparty may assign or otherwise transfer any Lender Hedge Agreement to
which it is a party to any other Person in accordance with the terms of such
Lender Hedge Agreement, and such other Person shall thereupon become vested with
all the benefits in respect thereof granted to Hedge Agreement Counterparties
herein or otherwise.
(b) Upon the payment in full of all Secured Obligations, the
cancellation or termination of the Commitments and the cancellation or
expiration of all outstanding Letters of Credit, the security interest granted
hereby shall automatically terminate and all rights to the Collateral shall
revert to the applicable Grantors. Upon any such termination Secured Party will,
at Grantors' expense, execute and deliver to Grantors such documents as Grantors
shall reasonably request to evidence such termination. In addition, upon the
proposed sale or other disposition of any Collateral by a Grantor in accordance
with the Credit Agreement for which such Grantor desires to obtain a security
interest release from Secured Party, a security interest release may be obtained
pursuant to the provisions of the Credit Agreement.
SECTION 20. SECURED PARTY AS AGENT.
(a) Secured Party has been appointed to act as Secured Party
hereunder by Lenders and, by their acceptance of the benefits hereof, Hedge
Agreement Counterparties. Secured Party shall be obligated, and shall have the
right hereunder, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action (including
without limitation the release or substitution of Collateral), solely in
accordance with this Agreement and the Credit Agreement; provided that Secured
Party shall exercise, or refrain from exercising, any remedies provided for in
Section 15 in accordance with the instructions of (i) Requisite Lenders or (ii)
after payment in full of all Obligations under the Credit Agreement and the
other Loan Documents, the cancellation or expiration of all Letters of Credit
and the termination of the Commitments, (A) the holders of a majority of the
aggregate notional amount under all Lender Hedge Agreements (including Lender
Hedge Agreements that have been terminated) or (B) if all Lender Hedge
Agreements have been terminated in accordance with their terms, the aggregate
amount then due and payable (exclusive of expenses and similar payments but
including any early termination payments then due) under such Lender
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Security Agreement EXECUTION
Hedge Agreements (Requisite Lenders or, if applicable, such holders being
referred to herein as "REQUISITE OBLIGEES"). In furtherance of the foregoing
provisions of this Section 20(a), each Hedge Agreement Counterparty, by its
acceptance of the benefits hereof, agrees that it shall have no right
individually to realize upon any of the Collateral hereunder, it being
understood and agreed by such Hedge Agreement Counterparty that all rights and
remedies hereunder may be exercised solely by Secured Party for the benefit of
Lenders and Hedge Agreement Counterparties in accordance with the terms of this
Section 20(a).
(b) Secured Party shall at all times be the same Person that
is Administrative Agent under the Credit Agreement. Written notice of
resignation by Administrative Agent pursuant to subsection 9.5 of the Credit
Agreement shall also constitute notice of resignation as Secured Party under
this Agreement; and appointment of a successor Administrative Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute appointment of a
successor Secured Party under this Agreement. Upon the acceptance of any
appointment as Administrative Agent under subsection 9.5 of the Credit Agreement
by a successor Administrative Agent, that successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Secured Party under this Agreement, and the retiring
Secured Party under this Agreement shall promptly (i) transfer to such successor
Secured Party all sums, securities and other items of Collateral held hereunder,
together with all records and other documents necessary or appropriate in
connection with the performance of the duties of the successor Secured Party
under this Agreement, and (ii) execute and deliver to such successor Secured
Party such amendments to financing statements, and take such other actions, as
may be necessary or appropriate in connection with the assignment to such
successor Secured Party of the security interests created hereunder, whereupon
such retiring Secured Party shall be discharged from its duties and obligations
under this Agreement. After any retiring Administrative Agent's resignation
hereunder as Secured Party, the provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted to be taken by it under this
Agreement while it was Secured Party hereunder.
(c) Secured Party shall not be deemed to have any duty
whatsoever with respect to any Hedge Agreement Counterparty until it shall have
received written notice in form and substance satisfactory to Secured Party from
a Grantor or the Hedge Agreement Counterparty as to the existence and terms of
the applicable Lender Hedge Agreement.
SECTION 21. ADDITIONAL GRANTORS.
The initial Subsidiary Grantors hereunder shall be such of the
Material Subsidiaries of Borrower as are signatories hereto on the date hereof.
From time to time subsequent to the date hereof, additional Subsidiaries of
Borrower may become parties hereto as additional Grantors (each an "ADDITIONAL
GRANTOR"), by executing a Counterpart substantially in the form of Exhibit VI
annexed hereto. Upon delivery of any such Counterpart to Secured Party, notice
of which is hereby waived by Grantors, each such Additional Grantor shall be a
Grantor and shall be as fully a party hereto as if such Additional Grantor were
an original signatory hereto. Each Grantor expressly agrees that its obligations
arising hereunder shall not be affected or diminished by the addition or release
of any other Grantor hereunder, nor by any election of Administrative Agent not
to cause any Subsidiary of Borrower to become an Additional Grantor hereunder.
This Agreement shall be fully effective as to any Grantor that is or becomes a
party
28
Security Agreement EXECUTION
hereto regardless of whether any other Person becomes or fails to become or
ceases to be a Grantor hereunder.
SECTION 22. AMENDMENTS; ETC.
No amendment, modification, termination or waiver of any
provision of this Agreement, and no consent to any departure by any Grantor
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Secured Party and, in the case of any such amendment or
modification, by Grantors; provided this Agreement may be modified by the
execution of a Counterpart by an Additional Grantor in accordance with Section
21 and Grantors hereby waive any requirement of notice of or consent to any such
amendment. Any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
SECTION 23. NOTICES.
Any notice or other communication herein required or permitted
to be given shall be in writing and may be personally served or sent by
telefacsimile in complete and legible form or United States mail or courier
service and shall be deemed to have been given when delivered in person or by
courier service, upon receipt of telefacsimile, or three Business Days after
depositing it in the United States mail with postage prepaid and properly
addressed. For the purposes hereof, the address of each party hereto shall be as
provided in subsection 10.8 of the Credit Agreement or as set forth under such
party's name on the signature pages hereof or such other address as shall be
designated by such party in a written notice delivered to the other parties
hereto.
SECTION 24. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES
CUMULATIVE.
No failure or delay on the part of Secured Party in the
exercise of any power, right or privilege hereunder shall impair such power,
right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude any other or further exercise thereof or of any other power,
right or privilege. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
SECTION 25. SEVERABILITY.
In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 26. HEADINGS.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
29
Security Agreement EXECUTION
SECTION 27. GOVERNING LAW; TERMS; RULES OF CONSTRUCTION.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT
THE UCC PROVIDES THAT THE PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. Unless otherwise
defined herein or in the Credit Agreement, terms used in Articles 8 and 9 of the
Uniform Commercial Code in the State of New York are used herein as therein
defined. The rules of construction set forth in subsection 1.3 of the Credit
Agreement shall be applicable to this Agreement mutatis mutandis.
SECTION 28. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY GRANTOR ARISING
OUT OF OR RELATING TO THIS AGREEMENT, OR ANY OBLIGATIONS HEREUNDER, MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH
GRANTOR, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (I)
ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF
SUCH COURTS; (II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (III) AGREES THAT
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO SUCH GRANTOR AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 23; (IV) AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION
OVER SUCH GRANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; (V) AGREES THAT
SECURED PARTY RETAINS THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH GRANTOR IN THE COURTS OF ANY OTHER
JURISDICTION; AND (VI) AGREES THAT THE PROVISIONS OF THIS SECTION 28 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
SECTION 29. WAIVER OF JURY TRIAL.
GRANTORS AND SECURED PARTY HEREBY AGREE TO WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
30
Security Agreement EXECUTION
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction, including
without limitation contract claims, tort claims, breach of duty claims, and all
other common law and statutory claims. Each Grantor and Secured Party
acknowledge that this waiver is a material inducement for Grantors and Secured
Party to enter into a business relationship, that Grantors and Secured Party
have already relied on this waiver in entering into this Agreement and that each
will continue to rely on this waiver in their related future dealings. Each
Grantor and Secured Party further warrant and represent that each has reviewed
this waiver with its legal counsel, and that each knowingly and voluntarily
waives its jury trial rights following consultation with legal counsel. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS
SECTION 29 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
SECTION 30. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
SECTION 31. ASSESSMENT OF BORROWER.
Lenders, Hedge Agreement Counterparties and Secured Party
shall have no obligation to disclose or discuss with any Grantor their
assessment, or such Grantor's assessment, of the financial condition of
Borrower. Each Grantor has adequate means to obtain information from Borrower on
a continuing basis concerning the financial condition of Borrower and its
ability to perform its obligations under the Loan Documents and Lender Hedge
Agreements, and such Grantor assumes the responsibility for being and keeping
informed of the financial condition of Borrower and of all circumstances bearing
upon the risk of nonpayment of the Secured Obligations. Each Grantor hereby
waives and relinquishes any duty on the part of Secured Party or any Lender or
any Hedge Agreement Counterparty to disclose any matter, fact or thing relating
to the business, operations or condition of Borrower now known or hereafter
known by Secured Party or any Lender or any Hedge Agreement Counterparty.
31
Security Agreement EXECUTION
IN WITNESS WHEREOF, Grantors and Secured Party have caused
this Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
GRANTORS: BRAND SERVICES, INC.
By:
-------------------------------------
Name:
Title:
BRAND SCAFFOLD BUILDERS, INC.
By:
-------------------------------------
Name:
Title:
BRAND SCAFFOLD RENTAL & ERECTION, INC.
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇ STAFFING, INC.
By:
-------------------------------------
Name:
Title:
BRAND INTERMEDIATE HOLDINGS, INC.
(FORMERLY KNOWN AS DLJ BRAND HOLDINGS,
INC.)
By:
-------------------------------------
Name:
Title:
S-1
Security Agreement EXECUTION
BRAND SCAFFOLD SERVICES, INC.
By:
-------------------------------------
Name:
Title:
BRAND STAFFING SERVICES, INC.
By:
-------------------------------------
Name:
Title:
BRAND SPECIAL EVENTS, INC.
By:
-------------------------------------
Name:
Title:
BRAND SCAFFOLD ERECTORS, INC.
By:
-------------------------------------
Name:
Title:
SCAFFOLD BUILDING SERVICES, INC.
By:
-------------------------------------
Name:
Title:
S-2
Security Agreement EXECUTION
▇▇▇▇ ▇▇▇▇▇-GRANDSTANDS, INC.
By:
-------------------------------------
Name:
Title:
KWIKRIG, INC.
By:
-------------------------------------
Name:
Title:
SKYVIEW STAFFING, INC.
By:
-------------------------------------
Name:
Title:
BRANDCRAFT LABOR, INC.
By:
-------------------------------------
Name:
Title:
SKYVIEW SAFETY SERVICES, INC.
By:
-------------------------------------
Name:
Title:
S-3
Security Agreement EXECUTION
SCAFFOLD-JAX, INC.
By:
-------------------------------------
Name:
Title:
SECURED PARTY: CREDIT SUISSE FIRST BOSTON
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
S-4
Security Agreement EXECUTION
SCHEDULE 1(e)(i) TO
SECURITY AGREEMENT
CLASS PERCENTAGE OF
OF STOCK OR EQUITY STOCK PAR NUMBER OF OUTSTANDING
STOCK ISSUER INTEREST CERTIFICATE NOS. VALUE SHARES SHARES PLEDGED
------------ ------------------ ---------------- ----- --------- --------------
Sch. 1(e)(i)-1
Security Agreement EXECUTION
SCHEDULE 1(e)(ii) TO
SECURITY AGREEMENT
AMOUNT OF
DEBT ISSUER INDEBTEDNESS
----------- ------------
Sch. 1(e)(ii)-1
Security Agreement EXECUTION
SCHEDULE 1(f)(i) TO
SECURITY AGREEMENT
U.S. TRADEMARKS:
Trademark Registration Registration
Registered Owner Description Number Date
---------------- ----------- ------------ ------------
FOREIGN TRADEMARKS:
Trademark Registration Registration
Registered Owner Description Number Date
---------------- ----------- ------------ ------------
Sch. 1(f)(i)-1
Security Agreement EXECUTION
SCHEDULE 1(f)(ii) TO
SECURITY AGREEMENT
U.S. PATENTS ISSUED:
Patent No. Issue Date Invention Inventor
---------- ---------- --------- --------
U.S. PATENTS PENDING:
Applicant's Date Application
Name Filed Number Invention Inventor
----------- ----- ----------- --------- --------
FOREIGN PATENTS ISSUED:
Patent No. Issue Date Invention Inventor
---------- ---------- --------- --------
FOREIGN PATENTS PENDING:
Applicant's Date Application
Name Filed Number Invention Inventor
----------- ----- ----------- --------- --------
Sch. 1(f)(ii)-1
Security Agreement EXECUTION
SCHEDULE 1(f)(iii) TO
SECURITY AGREEMENT
U.S. COPYRIGHTS:
Title Registration No. Date of Issue Registered Owner
----- ---------------- ------------- ----------------
FOREIGN COPYRIGHT REGISTRATIONS:
Country Title Registration No. Date of Issue
------- ----- ---------------- -------------
PENDING U.S. COPYRIGHT REGISTRATIONS & APPLICATIONS:
Title Reference No. Date of Application Copyright Claimant
----- ------------- ------------------- ------------------
PENDING FOREIGN COPYRIGHT REGISTRATIONS & APPLICATIONS:
Country Title Registration No. Date of Issue
------- ----- ---------------- -------------
Sch. 1(f)(iii)-1
Security Agreement EXECUTION
SCHEDULE 4(c)
TO
SECURITY AGREEMENT
NAME OF TYPE OF OFFICE JURISDICTION OF ORGANIZATION
GRANTOR ORGANIZATION LOCATIONS ORGANIZATION NUMBER
------- ------------ --------- --------------- ------------
Sch. 4(c)-1
Security Agreement EXECUTION
SCHEDULE 4(d)
TO
SECURITY AGREEMENT
OTHER NAMES
NAME OF GRANTOR OTHER NAMES
--------------- -----------
Sch. 4(d)-1
Security Agreement EXECUTION
SCHEDULE 4(h)
TO
SECURITY AGREEMENT
FILING OFFICES
Grantor Filing Offices
------- --------------
Sch. 4(h)-1
Security Agreement EXECUTION
EXHIBIT I TO
SECURITY AGREEMENT
GRANT OF TRADEMARK SECURITY INTEREST
WHEREAS, [**NAME OF GRANTOR**], a ___________ corporation
("GRANTOR"), owns and uses in its business, and will in the future adopt and so
use, various intangible assets, including the Trademark Collateral (as defined
below); and
WHEREAS,
Brand Services, Inc., a Delaware corporation
("BORROWER"), has entered into a Credit Agreement dated as of October 16, 2002
(said Credit Agreement, as it may heretofore have been and as it may hereafter
be amended, supplemented, restated or otherwise modified from time to time,
being the "CREDIT AGREEMENT") with the financial institutions named therein
(collectively, together with their respective successors and assigns party to
the Credit Agreement from time to time, the "LENDERS"), JPMorgan Chase Bank, as
syndication agent for Lenders, Credit Suisse First Boston, as Administrative
Agent for Lenders (in such capacity, "SECURED PARTY") and, together with ▇.▇.
▇▇▇▇▇▇ Securities Inc., joint lead arranger and book manager, and Antares
Capital Corporation and General Electric Capital Corporation, as
co-documentation agents for Lenders, pursuant to which Lenders have made certain
commitments, subject to the terms and conditions set forth in the Credit
Agreement, to extend certain credit facilities to Borrower; and
WHEREAS, Borrower may from time to time enter, or may from
time to time have entered, into one or more Hedge Agreements (collectively, the
"LENDER HEDGE AGREEMENTS") with one or more Persons that are Lenders or
Affiliates of Lenders at the time such Lender Hedge Agreements are entered into
(in such capacity, collectively, "HEDGE AGREEMENT COUNTERPARTIES"); and
[**Insert if Grantor is a Subsidiary:**] [**WHEREAS, Grantor
has executed and delivered that certain Subsidiary Guaranty dated as of October
16, 2002 (said Subsidiary Guaranty, as it may hereafter be amended, supplemented
or otherwise modified from time to time, being the "GUARANTY") in favor of
Secured Party for the benefit of Lenders and any Hedge Agreement Counterparties,
pursuant to which Grantor has guarantied the prompt payment and performance when
due of all obligations of Borrower under the Credit Agreement and the other Loan
Documents and all obligations of Borrower under the Lender Hedge Agreements,
including without limitation the obligation of Borrower to make payments
thereunder in the event of early termination thereof; and**]
WHEREAS, pursuant to the terms of a Security Agreement dated
as of October 16, 2002 (said Security Agreement, as it may heretofore have been
and as it may hereafter be amended, supplemented, restated or otherwise modified
from time to time, the "SECURITY AGREEMENT"), among Grantor, Secured Party and
the other grantors named therein, Grantor has agreed to create in favor of
Secured Party a secured and protected interest in, and Secured Party has agreed
to become a secured creditor with respect to, the Trademark Collateral;
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, subject to the terms and
conditions of the Security
Exh. I-1
Grant of Trademark EXECUTION
Security Interest
Agreement, Grantor hereby grants to Secured Party a security interest in all of
Grantor's right, title and interest in and to the following, in each case
whether now or hereafter existing or in which Grantor now has or hereafter
acquires an interest and wherever the same may be located (the "TRADEMARK
COLLATERAL"):
(i) all rights, title and interest (including rights acquired
pursuant to a license or otherwise but only to the extent permitted by
agreements governing such license or other use) in and to all
trademarks, service marks, designs, logos, indicia, trade names, trade
dress, corporate names, company names, business names, fictitious
business names, trade styles and/or other source and/or business
identifiers and applications pertaining thereto, owned by such Grantor,
or hereafter adopted and used, in its business (including, without
limitation, the trademarks specifically identified in Schedule A)
(collectively, the "TRADEMARKS"), all registrations that have been or
may hereafter be issued or applied for thereon in the United States and
any state thereof and in foreign countries (including, without
limitation, the registrations and applications specifically identified
in Schedule A) (the "TRADEMARK REGISTRATIONS"), all common law and
other rights (but in no event any of the obligations) in and to the
Trademarks in the United States and any state thereof and in foreign
countries (the "TRADEMARK RIGHTS"), and all goodwill of such Grantor's
business symbolized by the Trademarks and associated therewith (the
"ASSOCIATED GOODWILL"); and
(ii) all proceeds, products, rents and profits of or from any
and all of the foregoing Trademark Collateral and, to the extent not
otherwise included, all payments under insurance (whether or not
Secured Party is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Trademark Collateral. For purposes of
this Grant of Trademark Security Interest, the term "PROCEEDS" (a)
whatever is acquired upon the sale, lease, license, exchange, or other
disposition of the Trademark Collateral; (b) whatever is collected on,
or distributed on account of, the Trademark Collateral; (c) rights
arising out of the Trademark Collateral; (d) to the extent of the value
of the Trademark Collateral, claims arising out of the loss,
nonconformity, or interference with the use of, defects or infringement
of rights in, or damage to, the Trademark Collateral; (e) to the extent
of the value of the Trademark Collateral, insurance payable by reason
of the loss or nonconformity of, defects or infringement of rights in,
or damage to, the Trademark Collateral (whether or not Secured Party is
the loss payee thereof); and (f) whatever is receivable or received
when the Trademark Collateral or proceeds are sold, exchanged,
collected or otherwise disposed of, whether such disposition is
voluntary or involuntary.
Grantor does hereby further acknowledge and affirm that the
rights and remedies of Secured Party with respect to the security interest in
the Trademark Collateral 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.
[Remainder of page intentionally left blank.]
Exh. I-2
Grant of Trademark EXECUTION
Security Interest
IN WITNESS WHEREOF, Grantor has caused this Grant of Trademark
Security Interest to be duly executed and delivered by its officer thereunto
duly authorized as of the __ day of _______, 200__.
[**NAME OF GRANTOR**]
By:
-------------------------------------
Name:
Title:
S-1
Grant of Trademark EXECUTION
Security Interest
SCHEDULE A
TO
GRANT OF TRADEMARK SECURITY INTEREST
United States
Trademark Registration Registration
Registered Owner Description Number Date
---------------- ------------- ------------ ------------
A-1
Grant of Trademark EXECUTION
Security Interest
EXHIBIT II TO
SECURITY AGREEMENT
GRANT OF PATENT SECURITY INTEREST
WHEREAS, [**NAME OF GRANTOR**], a ___________ corporation
("GRANTOR"), owns and uses in its business, and will in the future adopt and so
use, various intangible assets, including the Patent Collateral (as defined
below); and
WHEREAS,
Brand Services, Inc., a Delaware corporation
("BORROWER"), has entered into a Credit Agreement dated as of October 16, 2002
(said Credit Agreement, as it may heretofore have been and as it may hereafter
be amended, supplemented, restated or otherwise modified from time to time,
being the "CREDIT AGREEMENT") with the financial institutions named therein
(collectively, together with their respective successors and assigns party to
the Credit Agreement from time to time, the "LENDERS"), JPMorgan Chase Bank, as
syndication agent for Lenders, Credit Suisse First Boston, as Administrative
Agent for Lenders (in such capacity, "SECURED PARTY") and, together with ▇.▇.
▇▇▇▇▇▇ Securities Inc., joint lead arranger and book manager, and Antares
Capital Corporation and General Electric Capital Corporation, as
co-documentation agents for Lenders, pursuant to which Lenders have made certain
commitments, subject to the terms and conditions set forth in the Credit
Agreement, to extend certain credit facilities to Borrower; and
WHEREAS, Borrower may from time to time enter, or may from
time to time have entered, into one or more Hedge Agreements (collectively, the
"LENDER HEDGE AGREEMENTS") with one or more Persons that are Lenders or
Affiliates of Lenders at the time such Lender Hedge Agreements are entered into
(in such capacity, collectively, "HEDGE AGREEMENT COUNTERPARTIES"); and
[**Insert if Grantor is a Subsidiary:**] [**WHEREAS, Grantor
has executed and delivered that certain Subsidiary Guaranty dated as of October
16, 2002 (said Subsidiary Guaranty, as it may hereafter be amended, supplemented
or otherwise modified from time to time, being the "GUARANTY") in favor of
Secured Party for the benefit of Lenders and any Hedge Agreement Counterparties,
pursuant to which Grantor has guarantied the prompt payment and performance when
due of all obligations of Borrower under the Credit Agreement and the other Loan
Documents and all obligations of Borrower under the Lender Hedge Agreements,
including without limitation the obligation of Borrower to make payments
thereunder in the event of early termination thereof; and**]
WHEREAS, pursuant to the terms of a Security Agreement dated
as of October 16, 2002 (said Security Agreement, as it may heretofore have been
and as it may hereafter be amended, supplemented, restated or otherwise modified
from time to time, the "SECURITY AGREEMENT"), among Grantor, Secured Party and
the other grantors named therein, Grantor has agreed to create in favor of
Secured Party a secured and protected interest in, and Secured Party has agreed
to become a secured creditor with respect to, the Patent Collateral;
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, subject to the terms and
conditions of the Security
Exh. II-1
Grant of Patent EXECUTION
Security Interest
Agreement, Grantor hereby grants to Secured Party a security interest in all of
Grantor's right, title and interest in and to the following, in each case
whether now or hereafter existing or in which Grantor now has or hereafter
acquires an interest and wherever the same may be located (the "PATENT
COLLATERAL"):
(i) all rights, title and interest (including rights acquired
pursuant to a license or otherwise but only to the extent permitted by
agreements governing such license or other use) in and to all patents
and patent applications and rights and interests in patents and patent
applications under any domestic or foreign law that are presently, or
in the future may be, owned or held by such Grantor and all patents and
patent applications and rights, title and interests in patents and
patent applications under any domestic or foreign law that are
presently, or in the future may be, owned by such Grantor in whole or
in part (including, without limitation, the patents and patent
applications listed in Schedule A), all rights (but not obligations)
corresponding thereto to ▇▇▇ for past, present and future infringements
and all re-issues, divisions, continuations, renewals, extensions and
continuations-in-part thereof (all of the foregoing being collectively
referred to as the "PATENTS"); and
(ii) all proceeds, products, rents and profits of or from any
and all of the foregoing Patent Collateral and, to the extent not
otherwise included, all payments under insurance (whether or not
Secured Party is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Patent Collateral. For purposes of this
Grant of Patent Security Interest, the term "PROCEEDS" includes (a)
whatever is acquired upon the sale, lease, license, exchange, or other
disposition of the Patent Collateral; (b) whatever is collected on, or
distributed on account of, the Patent Collateral; (c) rights arising
out of the Patent Collateral; (d) to the extent of the value of the
Patent Collateral, claims arising out of the loss, nonconformity, or
interference with the use of, defects or infringement of rights in, or
damage to, the Patent Collateral; (e) to the extent of the value of the
Patent Collateral, insurance payable by reason of the loss or
nonconformity of, defects or infringement of rights in, or damage to,
the Patent Collateral (whether or not Secured Party is the loss payee
thereof); and (f) whatever is receivable or received when the Patent
Collateral or proceeds are sold, exchanged, collected or otherwise
disposed of, whether such disposition is voluntary or involuntary.
Grantor does hereby further acknowledge and affirm that the
rights and remedies of Secured Party with respect to the security interest in
the Patent Collateral 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.
[Remainder of page intentionally left blank.]
Exh. II-2
Grant of Patent EXECUTION
Security Interest
IN WITNESS WHEREOF, Grantor has caused this Grant of Patent
Security Interest to be duly executed and delivered by its officer thereunto
duly authorized as of the ___ day of ________, 200__.
[**NAME OF GRANTOR**]
By:
-------------------------------------
Name:
Title:
S-1
Grant of Patent EXECUTION
Security Interest
SCHEDULE A
TO
GRANT OF PATENT SECURITY INTEREST
PATENTS ISSUED:
Patent No. Issue Date Invention Inventor
---------- ---------- --------- --------
PATENTS PENDING:
Applicant's Date Application
Name Filed Number Invention Inventor
----------- ----- ----------- --------- --------
Sch. A-1
Grant of Patent EXECUTION
Security Interest
EXHIBIT III TO
SECURITY AGREEMENT
GRANT OF COPYRIGHT SECURITY INTEREST
WHEREAS, [**NAME OF GRANTOR**], a ___________ corporation
("GRANTOR"), owns and uses in its business, and will in the future adopt and so
use, various intangible assets, including the Copyright Collateral (as defined
below); and
WHEREAS,
Brand Services, Inc., a Delaware corporation
("BORROWER"), has entered into a Credit Agreement dated as of October 16, 2002
(said Credit Agreement, as it may heretofore have been and as it may hereafter
be amended, supplemented or otherwise modified from time to time, being the
"CREDIT AGREEMENT") with the financial institutions named therein (collectively,
together with their respective successors and assigns party to the Credit
Agreement from time to time, the "LENDERS"), ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, as
syndication agent for Lenders, Credit Suisse First Boston, as Administrative
Agent for Lenders (in such capacity, "SECURED PARTY") and together with ▇.▇.
▇▇▇▇▇▇ Securities, Inc., joint lead arranger and book manager, and Antares
Capital Corporation and General Electric Capital Corporation, as
co-documentation agents for Lenders, pursuant to which Lenders have made certain
commitments, subject to the terms and conditions set forth in the Credit
Agreement, to extend certain credit facilities to Borrower; and
[**WHEREAS, Borrower may from time to time enter, or may from
time to time have entered, into one or more Hedge Agreements (collectively, the
"LENDER HEDGE AGREEMENTS") with one or more Persons that are Lenders or
Affiliates of Lenders at the time such Lender Hedge Agreements are entered into
(in such capacity, collectively, "HEDGE AGREEMENT COUNTERPARTIES"); and
[**Insert if Grantor is a Subsidiary:**] [**WHEREAS, Grantor
has executed and delivered that certain Guaranty dated as of October 16, 2002
(said Subsidiary Guaranty, as it may hereafter be amended, supplemented or
otherwise modified from time to time, being the "GUARANTY") in favor of Secured
Party for the benefit of Lenders and any Hedge Agreement Counterparties,
pursuant to which Grantor has guarantied the prompt payment and performance when
due of all obligations of Borrower under the Credit Agreement and the other Loan
Documents and all obligations of Borrower under the Lender Hedge Agreements,
including without limitation the obligation of Borrower to make payments
thereunder in the event of early termination thereof; and**]
WHEREAS, pursuant to the terms of a Security Agreement dated
as of October 16, 2002 (said Security Agreement, as it may heretofore have been
and as it may hereafter be amended, supplemented, restated or otherwise modified
from time to time, the "SECURITY AGREEMENT"), among Grantor, Secured Party and
the other grantors named therein, Grantor has agreed to create in favor of
Secured Party a secured and protected interest in, and Secured Party has agreed
to become a secured creditor with respect to, the Copyright Collateral;
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, subject to the terms and
conditions of the Security
Exh. III-1
Grant of Copyright EXECUTION
Security Interest
Agreement, Grantor hereby grants to Secured Party a security interest in all of
Grantor's right, title and interest in and to the following, in each case
whether now or hereafter existing or in which Grantor now has or hereafter
acquires an interest and wherever the same may be located (the "COPYRIGHT
COLLATERAL"):
(iii) all rights, title and interest (including rights
acquired pursuant to a license or otherwise but only to the extent
permitted by agreements governing such license or other use) under
copyright in various published and unpublished works of authorship
including, without limitation, computer programs, computer data bases,
other computer software layouts, trade dress, drawings, designs,
writings, and formulas (including, without limitation, the works listed
on Schedule A, as the same may be amended pursuant hereto from time to
time) (collectively, the "COPYRIGHTS"), all copyright registrations
issued to Grantor and applications for copyright registration that have
been or may hereafter be issued or applied for thereon in the United
States and any state thereof and in foreign countries (including,
without limitation, the registrations listed on Schedule A, as the same
may be amended pursuant hereto from time to time) (collectively, the
"COPYRIGHT REGISTRATIONS"), all common law and other rights in and to
the Copyrights in the United States and any state thereof and in
foreign countries including all copyright licenses (but with respect to
such copyright licenses, only to the extent permitted by such licensing
arrangements) (the "COPYRIGHT RIGHTS"), including, without limitation,
each of the Copyrights, rights, titles and interests in and to the
Copyrights, all derivative works and other works protectable by
copyright, which are presently, or in the future may be, owned, created
(as a work for hire for the benefit of Grantor), authored (as a work
for hire for the benefit of Grantor), or acquired by Grantor, in whole
or in part, and all Copyright Rights with respect thereto and all
Copyright Registrations therefor, heretofore or hereafter granted or
applied for, and all renewals and extensions thereof, throughout the
world, including all proceeds thereof (such as, by way of example and
not by limitation, license royalties and proceeds of infringement
suits), the right (but not the obligation) to renew and extend such
Copyright Registrations and Copyright Rights and to register works
protectable by copyright and the right (but not the obligation) to ▇▇▇
in the name of such Grantor or in the name of Secured Party or Lenders
for past, present and future infringements of the Copyrights and
Copyright Rights; and
(iv) all proceeds, products, rents and profits of or from any
and all of the foregoing Copyright Collateral and, to the extent not
otherwise included, all payments under insurance (whether or not
Secured Party is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Copyright Collateral. For purposes of
this Grant of Copyright Security Interest, the term "PROCEEDS" includes
(a) whatever is acquired upon the sale, lease, license, exchange, or
other disposition of the Copyright Collateral; (b) whatever is
collected on, or distributed on account of, the Copyright Collateral;
(c) rights arising out of the Copyright Collateral; (d) to the extent
of the value of the Copyright Collateral, claims arising out of the
loss, nonconformity, or interference with the use of, defects or
infringement of rights in, or damage to, the Copyright Collateral; (e)
to the extent of the value of the Copyright Collateral, insurance
payable by reason of the loss or nonconformity of, defects or
infringement of rights in, or damage to, the Copyright Collateral
(whether or not Secured Party is the loss payee thereof); and (f)
whatever is
Exh. III-2
Grant of Copyright EXECUTION
Security Interest
receivable or received when the Copyright Collateral or proceeds are
sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary.
Grantor does hereby further acknowledge and affirm that the
rights and remedies of Secured Party with respect to the security interest in
the Copyright Collateral 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.
[Remainder of page intentionally left blank.]
Exh. III-3
Grant of Copyright EXECUTION
Security Interest
IN WITNESS WHEREOF, Grantor has caused this Grant of Copyright
Security Interest to be duly executed and delivered by its officer thereunto
duly authorized as of the ___ day of ________, 200__.
[**NAME OF GRANTOR**]
By:
-------------------------------------
Name:
Title:
S-1
Grant of Copyright EXECUTION
Security Interest
SCHEDULE A
TO
GRANT OF COPYRIGHT SECURITY INTEREST
U.S. COPYRIGHTS:
Title Registration No. Date of Issue Registered Owner
----- ---------------- ------------- ----------------
PENDING U.S. COPYRIGHT REGISTRATIONS & APPLICATIONS:
Title Reference No. Date of Application Copyright Claimant
----- ------------- ------------------- ------------------
Sch. A-1
Grant of Copyright EXECUTION
Security Interest
EXHIBIT IV TO
SECURITY AGREEMENT
PLEDGE SUPPLEMENT
This PLEDGE SUPPLEMENT, dated __________ ___, 200__ is
delivered pursuant to the Security Agreement, dated October 16, 2002 between
Brand Services, Inc., a Delaware corporation ("GRANTOR"), the other Grantors
named therein, and Credit Suisse First Boston, as Secured Party (said Security
Agreement, as it may heretofore have been and as it may hereafter be amended,
supplemented, restated or otherwise modified from time to time, the "SECURITY
AGREEMENT"). Capitalized terms used herein not otherwise defined herein shall
have the meanings ascribed thereto in the Security Agreement.
Grantor hereby agrees that the [**Pledged Shares**] [**Pledged
Debt**] listed on the schedule attached hereto shall be deemed to be part of the
[**Pledged Shares**] [**Pledged Debt**] and shall become part of the Securities
Collateral and shall secure all Secured Obligations.
IN WITNESS WHEREOF, Grantor has caused this Amendment to be
duly executed and delivered by its duly authorized officer as of
_______________.
[**GRANTOR**]
By:
-------------------------------------
Name:
Title:
Exh. IV-1
Pledge Supplement EXECUTION
EXHIBIT V TO
SECURITY AGREEMENT
IP SUPPLEMENT
This IP SUPPLEMENT, dated _______ ___, 200__, is delivered
pursuant to and supplements (i) the Security Agreement, dated as of October 16,
2002 (said Security Agreement, as it may heretofore have been and as it may
hereafter be amended, supplemented, restated or otherwise modified from time to
time, the "SECURITY AGREEMENT"), among
Brand Services, Inc., a Delaware
corporation, [**Insert name of Grantor**], a ________ corporation, the other
Grantors named therein, and Credit Suisse First Boston, as Secured Party, and
(ii) the [**Grant of Trademark Security Interest**] [**Grant of Patent Security
Interest**] [**Grant of Copyright Security Interest**] dated as of ________ ___,
200__ (the "GRANT") executed by Grantor. Capitalized terms used herein not
otherwise defined herein shall have the meanings ascribed thereto in the Grant.
[**"Grantor"**] grants to Secured Party a security interest in
all of Grantor's right, title and interest in and to the [**Trademark
Collateral**] [**Patent Collateral**] [**Copyright Collateral**] listed on
Schedule A attached hereto. All such [**Trademark Collateral**] [**Patent
Collateral**] [**Copyright Collateral**] shall be deemed to be part of the
[**Trademark Collateral**] [**Patent Collateral**] [**Copyright Collateral**]
and shall be hereafter subject to each of the terms and conditions of the
Security Agreement and the Grant.
IN WITNESS WHEREOF, Grantor has caused this Supplement to be
duly executed and delivered by its duly authorized officer as of ______________.
[**NAME OF GRANTOR**]
By:
-------------------------------------
Name:
Title:
Exh. V-1
IP Supplement EXECUTION
EXHIBIT VI TO
SECURITY AGREEMENT
COUNTERPART
This COUNTERPART (this "COUNTERPART"), dated _______ ___,
200__ is delivered pursuant to Section 21 of the Security Agreement referred to
below. The undersigned hereby agrees that this Counterpart may be attached to
the Security Agreement, dated as of October 16, 2002 (said Security Agreement,
as it may heretofore have been and as it may hereafter be amended, supplemented,
restated or otherwise modified from time to time, the "SECURITY AGREEMENT";
capitalized terms used herein not otherwise defined herein shall have the
meanings ascribed therein), among
Brand Services, Inc., a Delaware corporation,
the other Grantors named therein, and Credit Suisse First Boston, as Secured
Party. The undersigned by executing and delivering this Counterpart hereby
becomes a Grantor under the Security Agreement in accordance with Section 21
thereof and agrees to be bound by all of the terms thereof. Without limiting the
generality of the foregoing, the undersigned hereby:
(v) authorizes the Secured Party to add the information set
forth on the Schedules to this Agreement to the correlative Schedules
attached to the Security Agreement(1);
(vi) agrees that all Collateral of the undersigned, including
the items of property described on the Schedules hereto, shall become
part of the Collateral and shall secure all Secured Obligations; and
(vii) makes the representations and warranties set forth in
the Security Agreement, as amended hereby, to the extent relating to
the undersigned.
[**NAME OF ADDITIONAL GRANTOR**]
By:
-------------------------------------
Name:
Title:
----------
(1) The Schedules to the Counterpart should include copies of all Schedules that
identify collateral to be granted by the Additional Grantor.
Exh. VI-1
Counterpart EXECUTION