Exhibit 10.4
EXECUTION COPY
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SECURITY AGREEMENT
among
DOMINO'S, INC.,
TISM, INC.
AND CERTAIN OF
THEIR RESPECTIVE SUBSIDIARIES
and
JPMORGAN CHASE BANK,
as COLLATERAL AGENT
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Dated as of July 29, 2002 and
amended and restated as of June 25, 2003
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TABLE OF CONTENTS
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Page
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ARTICLE I SECURITY INTERESTS..................................................2
1.1 Grant of Security Interests.........................................2
1.2 Power of Attorney...................................................5
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS..................5
2.1 Necessary Filings...................................................5
2.2 No Liens............................................................6
2.3 Other Financing Statements..........................................6
2.4 Chief Executive Office, Record Locations............................6
2.5 Legal Names; Type of Organization (and Whether a
Registered Organization and/or a Transmitting Utility);
Jurisdiction of Organization; Location; Organizational
Identification Numbers; Changes Thereto; Etc........................6
2.6 Trade Names; Etc....................................................7
2.7 Certain Significant Transactions....................................7
2.8 Collateral in the Possession of a Bailee............................7
2.9 Recourse............................................................7
ARTICLE III SPECIAL PROVISIONS CONCERNING ACCOUNTS; CONTRACT RIGHTS;
INSTRUMENTS; CHATTEL PAPER AND CERTAIN OTHER COLLATERAL...................8
3.1 Additional Representations and Warranties...........................8
3.2 Maintenance of Records..............................................8
3.3 Direction to Account Debtors; Contracting Parties; Etc..............8
3.4 Modification of Terms; Etc..........................................9
3.5 Collection..........................................................9
3.6 Instruments.........................................................9
3.7 Assignors Remain Liable Under Accounts.............................10
3.8 Assignors Remain Liable Under Contracts............................10
3.9 Deposit Accounts; Etc..............................................10
3.10 Letter-of-Credit Rights............................................12
3.11 Commercial Tort Claims.............................................12
3.12 Chattel Paper......................................................12
3.13 Further Actions....................................................12
ARTICLE IV SPECIAL PROVISIONS CONCERNING TRADEMARKS AND DOMAIN NAMES.........12
4.1 Additional Representations and Warranties..........................13
4.2 Licenses and Assignments...........................................13
4.3 Infringements......................................................13
4.4 Preservation of Marks and Domain Names.............................13
(i)
TABLE OF CONTENTS
(continued)
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4.5 Maintenance of Registration........................................14
4.6 Future Registered Marks and Domain Names...........................14
4.7 Remedies...........................................................14
ARTICLE V SPECIAL PROVISIONS CONCERNING PATENTS, COPYRIGHTS
AND TRADE SECRETS........................................................14
5.1 Additional Representations and Warranties..........................14
5.2 Licenses and Assignments...........................................15
5.3 Infringements......................................................15
5.4 Maintenance of Patents or Copyrights...............................15
5.5 Prosecution of Patent or Copyright Applications....................15
5.6 Other Patents and Copyrights.......................................16
5.7 Remedies...........................................................16
ARTICLE VI PROVISIONS CONCERNING ALL COLLATERAL..............................16
6.1 Protection of Collateral Agent's Security..........................16
6.2 Warehouse Receipts Non-negotiable..................................16
6.3 Additional Information.............................................17
6.4 Further Actions....................................................17
6.5 Financing Statements...............................................17
ARTICLE VII REMEDIES UPON OCCURRENCE OF AN EVENT OF DEFAULT..................17
7.1 Remedies; Obtaining the Collateral Upon Default....................17
7.2 Remedies; Disposition of the Collateral............................20
7.3 Waiver of Claims...................................................20
7.4 Application of Proceeds............................................21
7.5 Remedies Cumulative................................................23
7.6 Discontinuance of Proceedings......................................23
ARTICLE VIII INDEMNITY.......................................................24
8.1 Indemnity..........................................................24
8.2 Indemnity Obligations Secured by Collateral; Survival..............25
ARTICLE IX DEFINITIONS.......................................................25
ARTICLE X MISCELLANEOUS......................................................33
10.1 Notices............................................................33
10.2 Waiver; Amendment..................................................33
10.3 Obligations Absolute...............................................34
10.4 Successors and Assigns.............................................34
10.5 Headings Descriptive...............................................34
(ii)
TABLE OF CONTENTS
(continued)
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10.6 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL...............................................34
10.7 Assignor's Duties..................................................35
10.8 Termination; Release...............................................35
10.9 Counterparts.......................................................37
10.10 Severability.......................................................37
10.11 The Collateral Agent and the other Secured Creditors...............37
10.12 Additional Assignors...............................................37
10.13 Amendment and Restatement..........................................37
ANNEX A Schedule of Chief Executive Offices
ANNEX B [RESERVED]
ANNEX C Schedule of Legal Names, Type of Organization (and Whether a
Registered Organization and/or a Transmitting Utility),
Jurisdiction of Organization, Location and Organizational
Identification Numbers
ANNEX D Schedule of Trade and Fictitious Names
ANNEX E Description of Certain Significant Transactions Occurring
Within One Year Prior to the Date of the Security Agreement
ANNEX F Schedule of Deposit Accounts
ANNEX G Form of Control Agreement Regarding Deposit Accounts
ANNEX H Schedule of Commercial Tort Claims
ANNEX I Schedule of Marks and Internet Domain Name Registrations
ANNEX J Schedule of Patents
ANNEX K Schedule of Copyrights
ANNEX L Grant of Security Interest in United States Trademarks
ANNEX M Grant of Security Interest in United States Patents
ANNEX N Grant of Security Interest in United States Copyrights
(iii)
[FORM OF SECURITY AGREEMENT]
SECURITY AGREEMENT
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SECURITY AGREEMENT, dated as of July 29, 2002 and amended and restated
as of June 25, 2003, made by each of the undersigned assignors (each, an
"Assignor" and, together with any other entity that becomes an assignor
hereunder pursuant to Section 10.12 hereof, the "Assignors") in favor of
JPMorgan Chase Bank, as Collateral Agent (together with any successor Collateral
Agent, the "Collateral Agent"), for the benefit of the Secured Creditors (as
defined below). Certain capitalized terms as used herein are defined in Article
IX hereof. Except as otherwise defined herein, all capitalized terms used herein
and defined in the Credit Agreement (as defined below) shall be used herein as
therein defined.
WITNESSETH:
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WHEREAS, Domino's, Inc., a Delaware corporation ("Borrower"), TISM,
Inc., a Michigan corporation, the Lenders from time to time party thereto, ▇.▇.
▇▇▇▇▇▇ Securities Inc. and Citigroup Global Markets Inc., as joint lead
arrangers (in such capacity, the "Joint Lead Arrangers"), JPMorgan Chase Bank,
as administrative agent for Lenders (in such capacity and together with any
successor administrative agent, "Administrative Agent"), Citicorp North America,
Inc., as syndication agent (in such capacity and together with any successor
syndication agent, the "Syndication Agent"), and Bank One, NA, as documentation
agent (in such capacity and together with any successor documentation agent, the
"Documentation Agent"), have entered into a Credit Agreement, dated as of July
29, 2002 and amended and restated as of June 25, 2003 (as so amended and
restated and as the same may be further amended, restated, supplemented and/or
otherwise modified from time to time, the "Credit Agreement"), providing for the
making of Loans to Borrower, and the issuance of Letters of Credit for the
account of Borrower, in each case as contemplated therein (the Lenders, the
Joint Lead Arrangers, the Administrative Agent, the Documentation Agent, the
Syndication Agent, each Issuing Lender, the Collateral Agent and the Pledgee are
herein called the "Lender Creditors");
WHEREAS, Borrower or any Subsidiary thereof may at any time and from
time to time enter into or maintain one or more Interest Rate Agreements and
Currency Agreements (collectively, together with the Existing Swap Agreements in
effect at any time, the "Secured Hedging Agreements") with one or more Lenders
or any affiliate thereof (each such Lender or affiliate, even if the respective
Lender subsequently ceases to be a Lender under the Credit Agreement for any
reason, together with each financial institution party to an Existing Swap
Agreement at any time and each such Lender's, affiliate's or other financial
institution's successors and assigns, are herein called the "Other Creditors,"
and, together with the Lender Creditors, are herein called the "Secured
Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary
Guarantor has jointly and severally guaranteed to the Secured Creditors the
payment when due of all Guaranteed Obligations as described therein;
WHEREAS, pursuant to the Holdings Guaranty, Holdings has
unconditionally guaranteed to the Guaranteed Creditors the payment when due of
all Guaranteed Obligations as described therein;
WHEREAS, the Assignors have heretofore entered into a Security
Agreement, dated as of July 29, 2002 (as amended, supplemented or otherwise
modified to but not including the date hereof, the "Original Security
Agreement");
WHEREAS, it is a condition precedent to the making and continuation of
Loans and the issuance of Letters of Credit under the Credit Agreement and the
maintaining of Secured Hedge Agreements that each Assignor shall have executed
and delivered to the Collateral Agent this Agreement;
WHEREAS, each Assignor desires to execute this Agreement to satisfy
the condition described in the preceding paragraph and to amend and restate the
Original Security Agreement in the form of this Agreement; and
WHEREAS, each Assignor will obtain benefits from the incurrence and
continuation of Loans by, and the issuance of, and participation in, Letters of
Credit under the Credit Agreement and the entering into and maintaining of
Secured Hedging Agreements and, accordingly, each Assignor desires to enter into
this Agreement in order to satisfy the condition described in the preceding
paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each
Assignor, the receipt and sufficiency of which are hereby acknowledged, each
Assignor hereby makes the following representations and warranties to the
Collateral Agent for the benefit of the Secured Creditors and hereby covenants
and agrees with the Collateral Agent for the benefit of the Secured Creditors as
follows:
ARTICLE I
SECURITY INTERESTS
1.1 Grant of Security Interests. (a) As security for the prompt and
complete payment and performance when due of all of its Obligations, each
Assignor does hereby assign and transfer unto the Collateral Agent, and does
hereby pledge and grant to the Collateral Agent, for the benefit of the Secured
Creditors, a continuing security interest in all of the right, title and
interest of such Assignor in, to and under all of the following personal
property and fixtures (and all rights therein) of such Assignor, or in which or
to which such Assignor has any rights, in each case whether now existing or
hereafter from time to time acquired:
(i) each and every Account;
(ii) all cash;
(iii) the Cash Collateral Account and all monies, securities,
Instruments and other investments deposited or required to
be deposited in the Cash Collateral Account;
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(iv) all Chattel Paper (including without limitation all Tangible
Chattel Paper and all Electronic Chattel Paper);
(v) all Commercial Tort Claims;
(vi) all computer programs of such Assignor and all intellectual
property rights therein and all other proprietary information of
such Assignor, including but not limited to Domain Names and
Trade Secret Rights;
(vii) all Contracts, together with all Contract Rights arising
thereunder;
(viii) all Copyrights;
(ix) all Equipment;
(x) all Deposit Accounts and all other demand, deposit, time,
savings, cash management, passbook and similar accounts
maintained by such Assignor with any Person and all monies,
securities, Instruments and other investments deposited or
required to be deposited in any of the foregoing;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective
letter of credit is evidenced by a writing);
(xviii) all Marks, together with the registrations and right to all
renewals thereof, and the goodwill of the business of such
Assignor symbolized by the Marks;
(xix) all Patents;
(xx) all Permits;
(xxi) all Software and all Software licensing rights, all writings,
plans, specifications and schematics, all engineering drawings,
customer lists, goodwill and licenses, and all recorded data of
any kind or nature, regardless of the medium of recording;
(xxii) all Supporting Obligations; and
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(xxiii) all Proceeds and products of any and all of the foregoing (all
of the above, the "Collateral").
(b) The security interest of the Collateral Agent under this
Agreement extends to all Collateral which any Assignor may acquire, or with
respect to which any Assignor may obtain rights, at any time during the term of
this Agreement.
(c) Notwithstanding clauses (a) and (b) of this Section 1.1, the
payment and performance of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise that validly
prohibits, restricts or requires the consent of a third party for
the creation by such Assignor of a security interest in such
contract, license, permit or franchise (or in any rights or
property obtained by such Assignor under such contract, license,
permit or franchise) except to the extent provided by Sections
9-406, 9-407, 9-408 and 9-409 of the UCC; or
(ii) any rights or property to the extent that any valid and
enforceable law, statute or regulation applicable to such rights
or property prohibits, restricts or requires the consent of a
third party for the creation of a security interest therein
except to the extent provided by Sections 9-406, 9-407, 9-408 and
9-409 of the UCC;
provided, that, notwithstanding the foregoing in this subsection 1.1(c), (x) any
such contract, license, permit, franchise, rights and property described above
shall be excluded from the Collateral only to the extent and for so long as such
prohibition, restriction or third party consent requirement continues validly to
prohibit, restrict or require the consent of a third party for the creation of
such security interest, and upon the expiration, termination or other lifting of
such prohibition, restriction or third party consent requirement, the contracts,
licenses, permits, franchises, rights and properties and the rights therein
shall automatically be included in the Collateral, without further action on the
part of any Assignor, the Collateral Agent or any other Secured Creditor and (y)
any right to payment or other monies due under any such contract, license,
permit, franchise, rights or property described above shall not be excluded from
the Collateral and shall at all times be subject to the security interest
created pursuant to this Agreement.
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1.2 Power of Attorney. Each Assignor hereby constitutes and appoints
the Collateral Agent its true and lawful attorney, irrevocably, with full power
after the occurrence of and during the continuance of an Event of Default (in
the name of such Assignor or otherwise) to act, require, demand, receive,
compound and give aquittance for any and all moneys and claims for moneys due or
to become due to such Assignor under or arising out of the Collateral, to
endorse any checks or other instruments or orders in connection therewith and to
file any claims or take any action or institute any proceedings which the
Collateral Agent may deem to be necessary or advisable to protect the interests
of the Secured Creditors, which appointment as attorney is coupled with an
interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which representations,
warranties and covenants shall survive execution and delivery of this Agreement,
as follows:
2.1 Necessary Filings. Except with respect to Collateral (i) having a
fair market value, in the aggregate, equal to or less than $5,000,000 and (ii)
in which the security interest granted to the Collateral Agent is not at that
time required to be perfected by the Collateral Documents and except by reason
of the failure of Collateral Agent, Administrative Agent or any Lender to take
any action within its exclusive control as contemplated by the Collateral
Documents, all filings, registrations, recordings and other actions necessary or
appropriate to create, preserve and perfect the security interest granted by
such Assignor to the Collateral Agent hereby in respect of the Collateral have
been accomplished and the security interest granted to the Collateral Agent
pursuant to this Agreement in and to the Collateral creates (or, in the case of
(u) Patents, Copyrights, Marks and Domain Names, upon the filing in the
appropriate filing office of the instruments to be delivered by the applicable
Assignor pursuant to Section 4.6 and 5.6 hereof, (v) Instruments and money not
on deposit at a banking institution, upon the delivery of such Instruments or
money to the Collateral Agent, (w) deposit accounts (and monies therein), upon
the completion of the actions described in Section 3.9 hereof, (x) Commercial
Tort Claims, upon the completion of the actions described in Section 3.11
hereof, (y) letter-of-credit rights that do not constitute Supporting
Obligations, upon the completion of the actions described in Section 3.10 hereof
and (z) Electronic Chattel Paper, upon the Collateral Agent obtaining "control"
thereof as described in Section 3.12 hereof) a valid and, together with all such
filings, registrations, recordings and other actions, a perfected security
interest therein prior to the rights of all other Persons therein and subject to
no other Liens (other than those Liens permitted to exist with respect to the
Collateral pursuant to the terms of all Secured Debt Agreements then in effect)
and is entitled to all the rights, priorities and benefits afforded by the
Uniform Commercial Code or other relevant law as enacted in any relevant
jurisdiction to perfected security interests, in each case to the extent that
the Collateral consists of the type of property in which a security interest may
be perfected by possession or control (within the meaning of the UCC as in
effect on the date hereof in the State of New York), (x) by filing a financing
statement under the Uniform Commercial Code as enacted in any relevant
jurisdiction or (y) by a filing of a Grant of Security Interest in the
respective form attached hereto in the United States Patent and Trademark Office
or in the United States Copyright Office.
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2.2 No Liens. Such Assignor is, and as to all Collateral acquired by
it from time to time after the date hereof such Assignor will be, the owner of
all Collateral free from any Lien, security interest, encumbrance or other
right, title or interest of any Person (other than those Liens permitted to
exist with respect to the Collateral pursuant to the terms of all Secured Debt
Agreements then in effect), and such Assignor shall defend the Collateral
against all claims and demands of all Persons at any time claiming the same or
any interest therein adverse to the Collateral Agent.
2.3 Other Financing Statements. As of the date hereof, there is no
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any interest of any
kind in the Collateral (other than financing statements filed in respect of (x)
those Liens permitted to exist with respect to the Collateral pursuant to the
terms of all Secured Debt Agreements then in effect and (y) those Liens to be
terminated as of the date hereof which were created pursuant to the Existing
Credit Agreement and the Collateral Documents (as defined in the Existing Credit
Agreement)), and so long as the Termination Date has not occurred, such Assignor
will not execute or authorize to be filed in any public office any financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) or statements relating to the Collateral, except financing
statements filed or to be filed in respect of and covering the security
interests granted hereby by such Assignor or in connection with those Liens
permitted to exist with respect to the Collateral pursuant to the terms of all
Secured Debt Agreements then in effect.
2.4 Chief Executive Office, Record Locations. The chief executive
office of such Assignor is, on the date of this Agreement, located at the
address indicated on Annex A hereto for such Assignor. During the period of the
four calendar months preceding the date of this Agreement, the chief executive
office of such Assignor has not been located at any address other than that
indicated on Annex A in accordance with the immediately preceding sentence, in
each case unless each such other address is also indicated on Annex A hereto for
such Assignor.
2.5 Legal Names; Type of Organization (and Whether a Registered
Organization and/or a Transmitting Utility); Jurisdiction of Organization;
Location; Organizational Identification Numbers; Changes Thereto; Etc. The exact
legal name of each Assignor, the type of organization of such Assignor, whether
or not such Assignor is a Registered Organization, the jurisdiction of
organization of such Assignor, such Assignor's Location, the organizational
identification number (if any) of each Assignor, and whether or not such
Assignor is a Transmitting Utility, is listed on Annex C hereto for such
Assignor. No Assignor shall change its legal name, its type of organization, its
status as a Registered Organization (in the case of a Registered Organization),
its status as a Transmitting Utility or as a Person which is not a Transmitting
Utility, as the case may be, its jurisdiction of organization, its Location, or
its organizational identification number (if any) from that used on Annex C
hereto, except that any such changes shall be permitted (so long as not in
violation of the applicable requirements of the Secured Debt Agreements and so
long as same do not involve (x) a Registered Organization ceasing to constitute
same or (y) any Assignor changing its jurisdiction of organization or Location
from the United States or a State thereof to a jurisdiction of organization or
Location, as the case may be, outside the United States or a State thereof) if
(i) it shall have given to the Collateral Agent not less than 15 days' prior
written notice of each change to the information
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listed on Annex C (as adjusted for any subsequent changes thereto previously
made in accordance with this sentence), together with a supplement to Annex C
which shall correct all information contained therein for the respective
Assignor, and (ii) in connection with the respective such change or changes, it
shall have taken all action reasonably requested by the Collateral Agent to
maintain the security interests of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect. In addition, to the extent that any Assignor does not have an
organizational identification number on the date hereof and later obtains one,
such Assignor shall promptly thereafter notify the Collateral Agent of such
organizational identification number and shall take all actions reasonably
satisfactory to the Collateral Agent to the extent necessary to maintain the
security interest of the Collateral Agent in the Collateral intended to be
granted hereby fully perfected and in full force and effect.
2.6 Trade Names; Etc. No Assignor has or operates in any jurisdiction
under, or in the preceding five years has had or has operated in any
jurisdiction under, any trade names, fictitious names or other names except its
legal name as specified in Annex C and such other trade or fictitious names as
are listed on Annex D hereto for such Assignor.
2.7 Certain Significant Transactions. During the one year period
preceding the date of this Agreement, no Person shall have merged or
consolidated with or into any Assignor, and no Person shall have liquidated
into, or transferred all or substantially all of its assets to, any Assignor, in
each case except as described in Annex E hereto. With respect to any
transactions so described in Annex E hereto, the respective Assignor shall have
furnished such information with respect to the Person (and the assets of the
Person and locations thereof) which merged with or into or consolidated with
such Assignor, or was liquidated into or transferred all or substantially all of
its assets to such Assignor, and shall have furnished to the Collateral Agent
such UCC lien searches as may have been requested with respect to such Person
and its assets, to establish that no security interest (excluding those Liens
permitted to exist with respect to the Collateral pursuant to the terms of all
Secured Debt Agreements then in effect) continues perfected on the date hereof
with respect to any Person described above (or the assets transferred to the
respective Assignor by such Person), including without limitation pursuant to
Section 9-316(a)(3) of the UCC.
2.8 Collateral in the Possession of a Bailee. Upon the occurrence and
continuation of a Specified Collateral Event or an Event of Default, if any
Inventory or other Goods are at any time in the possession of a bailee, the
respective Assignor shall promptly notify the Collateral Agent thereof and, if
requested by the Collateral Agent, shall use its reasonable best efforts to
promptly obtain an acknowledgment from such bailee, in form and substance
reasonably satisfactory to the Collateral Agent, that the bailee holds such
Collateral for the benefit of the Collateral Agent and shall act upon the
instructions of the Collateral Agent, without the further consent of the
respective Assignor. The Collateral Agent agrees with the Assignors that the
Collateral Agent shall not give any such instructions unless an Event of Default
has occurred and is continuing or would occur after taking into account any
action by the respective Assignor with respect to any such bailee.
2.9 Recourse. This Agreement is made with full recourse to each
Assignor and pursuant to and upon all the warranties, representations, covenants
and agreements on the part of
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such Assignor contained herein, in the Secured Debt Agreements and otherwise in
writing in connection herewith or therewith.
ARTICLE III
SPECIAL PROVISIONS CONCERNING ACCOUNTS; CONTRACT RIGHTS;
INSTRUMENTS; CHATTEL PAPER AND CERTAIN OTHER COLLATERAL
3.1 Additional Representations and Warranties. As of the time when
each of its Accounts arises, each Assignor shall be deemed to have represented
and warranted that each such Account, and all records, papers and documents
relating thereto (if any) are genuine and what they purport to be, and that all
papers and documents (if any) relating thereto (i) will, to the knowledge of
such Assignor, represent the genuine, legal, valid and binding obligation of the
account debtor evidencing indebtedness unpaid and owed by the respective account
debtor arising out of the performance of labor or services or the sale or lease
and delivery of the merchandise listed therein, or both, (ii) will be the only
original writings evidencing and embodying such obligation of the account debtor
named therein (other than copies created for general accounting purposes), (iii)
will, to the knowledge of such Assignor, evidence true and valid obligations,
enforceable in accordance with their respective terms, and (iv) will be in
compliance and will conform in all material respects with all applicable
federal, state and local laws and applicable laws of any relevant foreign
jurisdiction.
3.2 Maintenance of Records. Each Assignor will keep and maintain at
its own cost and expense accurate records of its Accounts and Contracts,
including, but not limited to, originals of all documentation (including each
Contract) with respect thereto, records of all payments received, all credits
granted thereon, all merchandise returned and all other dealings therewith, and
such Assignor will make the same available on such Assignor's premises to the
Collateral Agent for inspection, at such Assignor's own cost and expense, at any
and all reasonable times upon reasonable prior notice to such Assignor and
otherwise in accordance with the Credit Agreement. Upon the occurrence and
during the continuance of an Event of Default and at the request of the
Collateral Agent, such Assignor shall, at its own cost and expense, deliver all
tangible evidence of its Accounts and Contract Rights (including, without
limitation, all documents evidencing the Accounts and all Contracts) and such
books and records to the Collateral Agent or to its representatives (copies of
which evidence and books and records may be retained by such Assignor). Upon the
occurrence and during the continuance of an Event of Default and if the
Collateral Agent so directs, such Assignor shall legend, in form and manner
satisfactory to the Collateral Agent, the Accounts and the Contracts, as well as
books, records and documents (if any) of such Assignor evidencing or pertaining
to such Accounts and Contracts with an appropriate reference to the fact that
such Accounts and Contracts have been assigned to the Collateral Agent and that
the Collateral Agent has a security interest therein.
3.3 Direction to Account Debtors; Contracting Parties; Etc. Upon the
occurrence and during the continuance of an Event of Default, if the Collateral
Agent so directs any Assignor, such Assignor agrees (x) to cause all payments on
account of the Accounts and Contracts to be made directly to the Cash Collateral
Account, (y) that the Collateral Agent may, at its option, directly notify the
obligors with respect to any Accounts and/or under any Contracts to make
payments with respect thereto as provided in the preceding clause (x), and (z)
that the
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Collateral Agent may enforce collection of any such Accounts and Contracts and
may adjust, settle or compromise the amount of payment thereof, in the same
manner and to the same extent as such Assignor. Without notice to or assent by
any Assignor, the Collateral Agent may, upon the occurrence and during the
continuance of an Event of Default, apply any or all amounts then in, or
thereafter deposited in, the Cash Collateral Account toward the payment of the
Obligations in the manner provided in Section 7.4 of this Agreement. The
reasonable costs and expenses of collection (including reasonable attorneys'
fees), whether incurred by an Assignor or the Collateral Agent, shall be borne
by the relevant Assignor. The Collateral Agent shall deliver a copy of each
notice referred to in the preceding clause (y) to the relevant Assignor,
provided that (x) the failure by the Collateral Agent to so notify such Assignor
shall not affect the effectiveness of such notice or the other rights of the
Collateral Agent created by this subsection 3.3 and (y) no such notice shall be
required if an Event of Default of the type described in subsections 8.6 and 8.7
of the Credit Agreement has occurred and is continuing.
3.4 Modification of Terms; Etc. Except in accordance with such
Assignor's ordinary course of business and consistent with reasonable business
judgment, no Assignor shall rescind or cancel any indebtedness evidenced by any
Account or under any Contract, or modify any material term thereof or make any
material adjustment with respect thereto, or extend or renew the same, or
compromise or settle any material dispute, claim, suit or legal proceeding
relating thereto, or sell any Account or Contract, or interest therein, without
the prior written consent of the Collateral Agent. No Assignor will do anything
to adversely affect the right, title and interest of the Collateral Agent in the
Accounts or Contracts, except as permitted this Section 3.4 and Section 3.5.
3.5 Collection. Each Assignor shall endeavor in accordance with
reasonable business practices to cause to be collected from the account debtor
named in each of its Accounts or obligor under any Contract, as and when due
(including, without limitation, amounts which are delinquent, such amounts to be
collected in accordance with generally accepted lawful collection procedures)
any and all amounts owing under or on account of such Account or Contract, and
apply forthwith upon receipt thereof all such amounts as are so collected to the
outstanding balance of such Account or under such Contract. Except as otherwise
directed by the Collateral Agent after the occurrence and during the
continuation of an Event of Default, any Assignor may allow in the ordinary
course of business as adjustments to amounts owing under its Accounts and
Contracts (i) an extension or renewal of the time or times of payment, or
settlement for less than the total unpaid balance, which such Assignor finds
appropriate in accordance with reasonable business judgment and (ii) a refund or
credit due as a result of returned or damaged merchandise or improperly
performed services or for other reasons which such Assignor finds appropriate in
accordance with reasonable business judgment. The reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees) of collection,
whether incurred by an Assignor or the Collateral Agent, shall be borne by the
relevant Assignor.
3.6 Instruments. If any Assignor owns or acquires any Instrument in
excess of $750,000 constituting Collateral (other than checks and other payment
instruments received and collected in the ordinary course of business), such
Assignor will within 30 Business Days notify the Collateral Agent thereof, and
upon request by the Collateral Agent will promptly deliver such Instrument to
the Collateral Agent appropriately endorsed to the order of the Collateral
Agent.
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3.7 Assignors Remain Liable Under Accounts. Anything herein to the
contrary notwithstanding, the Assignors shall remain liable under each of the
Accounts to observe and perform all of the conditions and obligations to be
observed and performed by it thereunder, all in accordance with the terms of any
agreement giving rise to such Accounts. Neither the Collateral Agent nor any
other Secured Creditor shall have any obligation or liability under any Account
(or any agreement giving rise thereto) by reason of or arising out of this
Agreement or the receipt by the Collateral Agent or any other Secured Creditor
of any payment relating to such Account pursuant hereto, nor shall the
Collateral Agent or any other Secured Creditor be obligated in any manner to
perform any of the obligations of any Assignor under or pursuant to any Account
(or any agreement giving rise thereto), to make any payment, to make any inquiry
as to the nature or the sufficiency of any payment received by them or as to the
sufficiency of any performance by any party under any Account (or any agreement
giving rise thereto), to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts which may have
been assigned to them or to which they may be entitled at any time or times.
3.8 Assignors Remain Liable Under Contracts. Anything herein to the
contrary notwithstanding, the Assignors shall remain liable under each of the
Contracts to observe and perform all of the conditions and obligations to be
observed and performed by them thereunder, all in accordance with and pursuant
to the terms and provisions of each Contract. Neither the Collateral Agent nor
any other Secured Creditor shall have any obligation or liability under any
Contract by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any other Secured Creditor of any payment relating to such
Contract pursuant hereto, nor shall the Collateral Agent or any other Secured
Creditor be obligated in any manner to perform any of the obligations of any
Assignor under or pursuant to any Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any performance by any party
under any Contract, to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may have been
assigned to them or to which they may be entitled at any time or times.
3.9 Deposit Accounts; Etc. (a) No Assignor maintains, or at any time
after the Restatement Effective Date shall establish or maintain, any demand,
time, savings, passbook or similar account, except for such accounts maintained
with a bank (as defined in Section 9-102 of the UCC) whose jurisdiction
(determined in accordance with Section 9-304 of the UCC) is within a State of
the United States. Annex F hereto accurately sets forth, as of the date of this
Agreement, for each Assignor, each Deposit Account maintained by such Assignor
(including a description thereof and the respective account number), the name of
the respective bank with which such Deposit Account is maintained, and the
jurisdiction of the respective bank with respect to such Deposit Account. For
each Subject Deposit Account, the respective Assignor shall cause the bank with
which such Subject Deposit Account is maintained to execute and deliver to the
Collateral Agent, within 30 days after the Restatement Effective Date, a
"control agreement" in the form of Annex G hereto (appropriately completed),
with such changes thereto as may be reasonably acceptable to the Collateral
Agent. If any bank with which a Subject Deposit Account is maintained refuses
to, or does not, enter into such a "control agreement", then the respective
Assignor shall promptly (and in any event within 30 days after the Restatement
Effective Date) close the respective Subject Deposit Account and transfer all
balances therein to (x) the Cash Collateral Account, (y) another Subject Deposit
Account subject
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to a "control agreement" and meeting the requirements of this Section 3.9(a) or
(z) another Deposit Account subject to a "control agreement" and meeting the
requirements of this Section 3.9(a) as if such Deposit Account were a Subject
Deposit Account (each such Deposit Account referred to in this clause (z), an
"Alternate Perfected Deposit Account"). If any bank with which a Subject Deposit
Account is maintained refuses to subordinate all its claims with respect to such
Subject Deposit Account to the Collateral Agent's security interest therein on
terms reasonably satisfactory to the Collateral Agent, then the Collateral
Agent, at its option, may (x) require that such Subject Deposit Account be
terminated in accordance with the immediately preceding sentence or (y) agree to
a "control agreement" without such subordination, provided that in such event
the Collateral Agent may at any time, at its option, subsequently require that
such Subject Deposit Account be terminated (within 30 days after notice from the
Collateral Agent) in accordance with the requirements of the immediately
preceding sentence. If any Assignor intends to close a Subject Deposit Account
in accordance with the terms of the respective "control agreement" for such
Subject Deposit Account, then the respective Assignor shall, immediately prior
to closing such Subject Deposit Account, transfer all balances therein to the
Cash Collateral Account, another Subject Deposit Account or an Alternate
Perfected Deposit Account.
(b) After the Restatement Effective Date, no Assignor shall
establish any new demand, time, savings, passbook or similar account, except for
Deposit Accounts established and maintained with banks and meeting the
requirements of the first sentence of preceding clause (a). At the time any such
Deposit Account is established, the respective Assignor shall furnish to the
Collateral Agent a supplement to Annex F hereto containing the relevant
information with respect to the respective Deposit Account and the bank with
which same is established.
(c) Each Assignor covenants and agrees to transfer, by the close of
business on each Business Day (in the city where the respective Deposit Account
is maintained), any and all Cash and other funds on deposit in each Deposit
Account of such Assignor to a Subject Deposit Account or an Alternate Perfected
Deposit Account, provided that, in the case of a Deposit Account that is an
Excluded Local Deposit Account, all Cash and other funds on deposit in such
Excluded Local Deposit Account shall be transferred, by the close of business on
the Business Day (in the city where the respective Excluded Local Deposit
Account is maintained) following the date of initial deposit of such Cash and
other funds in such Excluded Local Deposit Account, to a Subject Deposit Account
or an Alternate Perfected Deposit Account.
(d) Each Assignor represents, warrants, covenants and agrees that
(x) any and all monies that are (x) received by such Assignor (i) from
Franchisees, (ii) as a result of ordinary course sales of product and inventory
or (iii) pursuant to existing contracts and (y) directed to a Subject Deposit
Account as of the Restatement Effective Date shall (to the extent similarly
derived in the future) continue to be directed to, and deposited in, a Subject
Deposit Account or an Alternate Perfected Deposit Account, (y) no Deposit
Account is subject to an agreement with any Person (other than the Collateral
Agent (in its capacity as such)) pursuant to which the bank with which such
Deposit Account is maintained is obligated to comply with instructions from such
other Person as to the disposition of funds from such Deposit Account or other
dealings with such Deposit Account and (z) such Assignor has not otherwise
entered into any agreement to permit any Person (other than the Collateral Agent
(in its capacity as such)) to establish "control" (as defined in Section 9-104
of the UCC) over any Deposit Account.
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3.10 Letter-of-Credit Rights. If any Assignor is at any time a
beneficiary under a letter of credit with a stated amount of $1,000,000 or more,
such Assignor shall promptly notify the Collateral Agent thereof and, at the
request of the Collateral Agent, such Assignor shall, pursuant to an agreement
in form and substance reasonably satisfactory to the Collateral Agent, use its
reasonable best efforts to (i) arrange for the issuer and any confirmer of such
letter of credit to consent to an assignment to the Collateral Agent of the
proceeds of any drawing under such letter of credit or (ii) arrange for the
Collateral Agent to become the transferee beneficiary of such letter of credit,
with the Collateral Agent agreeing, in each case, that the proceeds of any
drawing under the letter of credit are to be applied as provided in this
Agreement after the occurrence and during the continuance of an Event of
Default, provided, that any Letters of Credit constituting Supporting
Obligations shall be excluded from the requirements of this Section 3.10.
3.11 Commercial Tort Claims. All Commercial Tort Claims of each
Assignor in existence on the date of this Agreement are described in Annex H
hereto. If any Assignor shall at any time after the date of this Agreement
acquire a Commercial Tort Claim in an amount (taking the greater of the
aggregate claimed damages thereunder or the reasonably estimated value thereof)
of $1,000,000 or more, such Assignor shall within 30 days thereof notify the
Collateral Agent thereof in a writing signed by such Assignor and describing the
details thereof and shall grant to the Collateral Agent in such writing a
security interest therein and in the proceeds thereof, all upon the terms of
this Agreement, with such writing to be in form and substance reasonably
satisfactory to the Collateral Agent.
3.12 Chattel Paper. Upon the request of the Collateral Agent made at
any time or from time to time, each Assignor shall within 30 days furnish to the
Collateral Agent a list of all Electronic Chattel Paper held or owned by such
Assignor. Furthermore, if requested by the Collateral Agent, upon the occurrence
and continuation of a Specified Collateral Event or an Event of Default, each
Assignor shall promptly take all actions which are reasonably practicable so
that the Collateral Agent has "control" of all Electronic Chattel Paper in
accordance with the requirements of Section 9-105 of the UCC. Each Assignor will
promptly (and in any event within 30 days) following any request by the
Collateral Agent made in accordance with the foregoing sentence, deliver all of
its Tangible Chattel Paper to the Collateral Agent.
3.13 Further Actions. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, certificates, reports
and other assurances or instruments and take such further steps, including any
and all actions as may be necessary or required under the Federal Assignment of
Claims Act, relating to its Accounts, Contracts, Instruments and other property
or rights covered by the security interest hereby granted, as the Collateral
Agent may reasonably require.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS AND DOMAIN NAMES
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4.1 Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner of or otherwise has
the right to use the registered Marks and Domain Names listed in Annex I hereto
for such Assignor and that said listed Marks and Domain Names include all United
States marks and applications for United States marks registered in the United
States Patent and Trademark Office and all Domain Names that such Assignor owns
or uses in connection with its business as of the date hereof. Each Assignor
represents and warrants that it owns, is licensed to use or otherwise has the
right to use, all material Marks and Domain Names that it uses. Each Assignor
further warrants that it has no knowledge of any third party claim received by
it that any aspect of such Assignor's present or contemplated business
operations infringes or will infringe any trademark, service ▇▇▇▇ or trade name
of any other Person other than as could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each
Assignor represents and warrants that it is the true and lawful owner of or
otherwise has the right to use all material U.S. trademark registrations and
applications and Domain Name registrations listed in Annex I hereto and that
said registrations are valid, subsisting, have not been canceled and that such
Assignor is not aware of any third-party claim that any of said registrations is
invalid or unenforceable, and is not aware that there is any reason that any of
said registrations is invalid or unenforceable. Each Assignor hereby grants to
the Collateral Agent an absolute power of attorney to sign, upon the occurrence
and during the continuance of an Event of Default, any document which may be
required by the United States Patent and Trademark Office or similar registrar
in order to effect an absolute assignment of all right, title and interest in
each ▇▇▇▇ and/or Domain Name, and record the same.
4.2 Licenses and Assignments. Except as otherwise permitted by the
Secured Debt Agreements, each Assignor hereby agrees not to divest itself of any
right under any ▇▇▇▇ or Domain Name which is material to such Assignor's
business, absent prior written approval of the Collateral Agent.
4.3 Infringements. Each Assignor agrees, promptly upon learning
thereof, to notify the Collateral Agent in writing of the name and address of,
and to furnish such pertinent information that may be available with respect to,
any party who such Assignor believes is, or may be, infringing or diluting or
otherwise violating any of such Assignor's rights in and to any ▇▇▇▇ or Domain
Name in any manner that could reasonably be expected to have a Material Adverse
Effect, or with respect to any party claiming that such Assignor's use of any
▇▇▇▇ or Domain Name material to such Assignor's business violates in any
material respect any property right of that party. Each Assignor further agrees
to prosecute in accordance with reasonable business practices any Person
infringing any ▇▇▇▇ or Domain Name in any manner that could reasonably be
expected to have a Material Adverse Effect.
4.4 Preservation of Marks and Domain Names. Each Assignor agrees to
use its Marks and Domain Names which are material to such Assignor's business in
interstate commerce during the time in which this Agreement is in effect and to
take all such other actions as are reasonably necessary to preserve such Marks
as trademarks or service marks under the laws of the United States (other than
any such Marks which are no longer used or useful in its business or
operations).
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4.5 Maintenance of Registration. Each Assignor shall, at its own
expense, diligently process all documents reasonably required to maintain all
▇▇▇▇ and/or Domain Name registrations, including but not limited to affidavits
of use and applications for renewals of registration in the United States Patent
and Trademark Office for all of its material registered Marks, and shall pay all
fees and disbursements in connection therewith and shall not abandon any such
filing of affidavit of use or any such application of renewal prior to the
exhaustion of all administrative and judicial remedies without prior written
consent of the Collateral Agent (other than with respect to registrations and
applications deemed by such Assignor in its reasonable business judgment to be
no longer prudent to pursue).
4.6 Future Registered Marks and Domain Names. If any ▇▇▇▇ or Domain
Name registration that is material to its business is issued hereafter to any
Assignor as a result of any application now or hereafter pending before the
United States Patent and Trademark Office or any Domain Name is registered by
Assignor, within 30 days of receipt of such certificate or similar indicia of
ownership, such Assignor shall deliver to the Collateral Agent a copy of such
certificate or similar indicia of ownership, and a grant of a security interest
in such ▇▇▇▇ and/or Domain Name, to the Collateral Agent and at the expense of
such Assignor, confirming grant of a security interest in such ▇▇▇▇ and/or
Domain Name to the Collateral Agent hereunder, the form of such security to be
substantially in the form of Annex L hereto or in such other form as may be
reasonably satisfactory to the Collateral Agent.
4.7 Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent may, by written notice to the relevant Assignor, take any
or all of the following actions, subject to the limitations of the Uniform
Commercial Code in the applicable jurisdictions: (i) declare the entire right,
title and interest of such Assignor in and to each of the Marks and Domain
Names, together with all trademark rights and rights of protection to the same,
vested in the Collateral Agent for the benefit of the Secured Creditors, in
which event such rights, title and interest shall immediately vest, in the
Collateral Agent for the benefit of the Secured Creditors, and the Collateral
Agent shall be entitled to exercise the power of attorney referred to in Section
4.1 hereof to execute, cause to be acknowledged and notarized and record said
absolute assignment with the applicable agency; (ii) take and use or sell the
Marks or Domain Names and the goodwill of such Assignor's business symbolized by
the Marks or Domain Names and the right to carry on the business and use the
assets of such Assignor in connection with which the Marks or Domain Names have
been used; and (iii) direct such Assignor to refrain, in which event such
Assignor shall refrain, from using the Marks or Domain Names in any manner
whatsoever, directly or indirectly, and such Assignor shall execute such further
documents that the Collateral Agent may reasonably request to further confirm
this and to transfer ownership of the Marks or Domain Names and registrations
and any pending trademark application in the United States Patent and Trademark
Office or applicable Domain Name registrar to the Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1 Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner of all rights in
(i) all material United States trade
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secrets and proprietary information necessary to operate the business of the
Assignor (the "Trade Secret Rights"), (ii) the Patents listed in Annex J hereto
for such Assignor and that said Patents include all the United States patents
and applications for United States patents that such Assignor owns as of the
date hereof and (iii) the Copyrights listed in Annex K hereto for such Assignor
and that said Copyrights constitute all the United States copyrights registered
with the United States Copyright Office and applications for United States
copyrights that such Assignor owns as of the date hereof. Each Assignor further
warrants that it has no knowledge of any third party claim that any aspect of
such Assignor's present or contemplated business operations infringes or will
infringe any patent of any other Person or such Assignor has misappropriated any
trade secret or proprietary information which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. Each
Assignor hereby grants to the Collateral Agent an absolute power of attorney to
sign, upon the occurrence and during the continuance of any Event of Default,
any document which may be required by the United States Patent and Trademark
Office in order to effect an absolute assignment of all right, title and
interest in each Patent, and to record the same.
5.2 Licenses and Assignments. Except as otherwise permitted by the
Secured Debt Agreements, each Assignor hereby agrees not to divest itself of any
right under any Patent or Copyright absent prior written approval of the
Collateral Agent.
5.3 Infringements. Each Assignor agrees, promptly upon learning
thereof, to furnish the Collateral Agent in writing with all pertinent
information available to such Assignor with respect to any infringement,
contributing infringement or active inducement to infringe in any Patent or
Copyright or to any claim that the practice of any Patent or use of any
Copyright violates any property right of a third party, or with respect to any
misappropriation of any Trade Secret Right or any claim that practice of any
Trade Secret Right violates any property right of a third party, in each case,
in any manner which, either individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect. Each Assignor further agrees,
absent direction of the Collateral Agent to the contrary, to diligently
prosecute, in accordance with its reasonable business judgment, any Person
infringing any Patent or Copyright or any Person misappropriating any Trade
Secret Right, in each case to the extent that such infringement or
misappropriation, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
5.4 Maintenance of Patents or Copyrights. At its own expense, each
Assignor shall make timely payment of all post-issuance fees required pursuant
to 35 U.S.C. Section 41 to maintain in force its rights under each Patent or
Copyright, absent prior written consent of the Collateral Agent (other than any
such Patents or Copyrights which are no longer used or are deemed by such
Assignor in its reasonable business judgment to no longer be useful in its
business or operations).
5.5 Prosecution of Patent or Copyright Applications. At its own
expense, each Assignor shall diligently prosecute all material applications for
(i) United States Patents listed in Annex J hereto and (ii) Copyrights listed on
Annex K hereto, in each case for such Assignor and shall not abandon any such
application prior to exhaustion of all administrative and judicial remedies
(other than applications that are deemed by such Assignor in its reasonable
business judgment to no longer be prudent to pursue), absent written consent of
the Collateral Agent.
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5.6 Other Patents and Copyrights. Within 30 days of the acquisition
or issuance of a United States Patent, registration of a Copyright, or
acquisition of a registered Copyright, or of filing of an application for a
United States Patent or Copyright, the relevant Assignor shall deliver to the
Collateral Agent a copy of said Copyright or Patent, or certificate or
registration of, or application therefor, as the case may be, with a grant of a
security interest as to such Patent or Copyright, as the case may be, to the
Collateral Agent and at the expense of such Assignor, confirming the grant of a
security interest, the form of such grant of a security interest to be
substantially in the form of Annex M or N hereto, as appropriate, or in such
other form as may be reasonably satisfactory to the Collateral Agent.
5.7 Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent may, by written notice to the relevant Assignor, take any
or all of the following actions, subject to the limitations of the Uniform
Commercial Code in the applicable jurisdictions: (i) declare the entire right,
title, and interest of such Assignor in each of the Patents and Copyrights
vested in the Collateral Agent for the benefit of the Secured Creditors, in
which event such right, title, and interest shall immediately vest in the
Collateral Agent for the benefit of the Secured Creditors, in which case the
Collateral Agent shall be entitled to exercise the power of attorney referred to
in Section 5.1 hereof to execute, cause to be acknowledged and notarized and to
record said absolute assignment with the applicable agency; (ii) take and
practice or sell the Patents and Copyrights; and (iii) direct such Assignor to
refrain, in which event such Assignor shall refrain, from practicing the Patents
and using the Copyrights directly or indirectly, and such Assignor shall execute
such further documents as the Collateral Agent may reasonably request further to
confirm this and to transfer ownership of the Patents and Copyrights to the
Collateral Agent for the benefit of the Secured Creditors.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1 Protection of Collateral Agent's Security. Except as otherwise
permitted by the Secured Debt Agreements, each Assignor will do nothing to
adversely affect the right, title and interest of the Collateral Agent in the
Collateral. Each Assignor will at all times maintain insurance, at such
Assignor's own expense to the extent and in the manner provided in the Secured
Debt Agreements. Except to the extent otherwise permitted to be retained by such
Assignor or applied by such Assignor pursuant to the terms of the Secured Debt
Agreements, the Collateral Agent shall, at the time any proceeds of such
insurance are distributed to the Secured Creditors, apply such proceeds in
accordance with Section 7.4 hereof. Each Assignor assumes all liability and
responsibility in connection with the Collateral acquired by it and the
liability of such Assignor to pay the Obligations shall in no way be affected or
diminished by reason of the fact that such Collateral may be lost, destroyed,
stolen, damaged or for any reason whatsoever unavailable to such Assignor.
6.2 Warehouse Receipts Non-negotiable. To the extent practicable,
each Assignor agrees that if any warehouse receipt or receipt in the nature of a
warehouse receipt is issued with respect to any of its Inventory such Assignor
shall notify the Collateral Agent of the existence of such receipt within 30
days of the issuance thereof and upon the occurrence and continuation of a
Specified Collateral Event or an Event of Default, upon the request of the
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Collateral Agent, such Assignor shall request that such warehouse receipt or
receipt in the nature thereof shall not be "negotiable" (as such term is used in
Section 7-104 of the Uniform Commercial Code as in effect in any relevant
jurisdiction or under other relevant law).
6.3 Additional Information. Each Assignor will, at its own expense,
from time to time upon the reasonable request of the Collateral Agent, promptly
(and in any event within 10 days after its receipt of the respective request)
furnish to the Collateral Agent such information with respect to the Collateral
(including the identity of the Collateral or such components thereof as may have
been requested by the Collateral Agent, the value and location of such
Collateral, etc.) as may be requested by the Collateral Agent. Without limiting
the forgoing, each Assignor agrees that it shall promptly (and in any event
within 10 business days after its receipt of the respective request) furnish to
the Collateral Agent such updated Annexes hereto as may from time to time be
reasonably requested by the Collateral Agent.
6.4 Further Actions. Each Assignor will, at its own expense and upon
the reasonable request of the Collateral Agent, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such
lists, descriptions and designations of its Collateral, warehouse receipts,
receipts in the nature of warehouse receipts, bills of lading, documents of
title, vouchers, invoices, schedules, confirmatory assignments, conveyances,
financing statements, transfer endorsements, certificates, reports and other
assurances or instruments and take such further steps relating to the Collateral
and other property or rights covered by the security interest hereby granted,
which the Collateral Agent deems reasonably appropriate or advisable to perfect,
preserve or protect its security interest in the Collateral.
6.5 Financing Statements. Each Assignor agrees to execute and deliver
to the Collateral Agent such financing statements, in form reasonably acceptable
to the Collateral Agent, as the Collateral Agent may from time to time
reasonably request or as are reasonably necessary or desirable in the opinion of
the Collateral Agent to establish and maintain a valid, enforceable, perfected
security interest in the Collateral as provided herein and the other rights and
security contemplated hereby. Each Assignor will pay any applicable filing fees,
recordation taxes and related expenses relating to its Collateral. Each Assignor
hereby authorizes the Collateral Agent to file any such financing statements and
amendments thereto without the signature of such Assignor where permitted by law
(and such authorization includes describing the Collateral as "all assets" of
such Assignor).
ARTICLE VII
REMEDIES UPON OCCURRENCE OF AN EVENT OF DEFAULT
7.1 Remedies; Obtaining the Collateral Upon Default. Each Assignor
agrees that, if any Event of Default shall have occurred and be continuing, then
and in every such case, the Collateral Agent, in addition to any rights now or
hereafter existing under applicable law and under the other provisions of this
Agreement, shall have all rights as a secured creditor under any UCC, and such
additional rights and remedies to which a secured creditor is entitled under the
laws in effect in all relevant jurisdictions and may to the fullest extent
permitted by applicable law:
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(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or any
other Person who then has possession of any part thereof with or without
notice or process of law, and for that purpose may enter upon such
Assignor's premises where any of the Collateral is located and remove the
same and use in connection with such removal any and all services,
supplies, aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument
or other obligation (including, without limitation, the Accounts and the
Contracts) constituting the Collateral to make any payment required by the
terms of such agreement, instrument or other obligation directly to the
Collateral Agent and may exercise any and all remedies of such Assignor in
respect of such Collateral;
(iii) instruct all banks which have entered into a control agreement
with the Collateral Agent to transfer all monies, securities and
instruments held by such depositary bank to the Cash Collateral Account;
(iv) sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof in accordance with Section 7.2 hereof, or
direct the relevant Assignor to sell, assign or otherwise liquidate any or
all of the Collateral or any part thereof, and, in each case, take
possession of the proceeds of any such sale or liquidation;
(v) take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to deliver the same to the
Collateral Agent at any reasonable place or places designated by the
Collateral Agent, in which event such Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place or places
so designated by the Collateral Agent and there delivered to the
Collateral Agent;
(y) store and keep any Collateral so delivered to the
Collateral Agent at such place or places pending further action by the
Collateral Agent as provided in Section 7.2 hereof; and
(z) while the Collateral shall be so stored and kept,
provide such security and maintenance services as shall be reasonably
necessary to protect the same and to preserve and maintain it in good
condition;
(vi) license or sublicense, whether on an exclusive or nonexclusive
basis, any Marks, Domain Names, Patents or Copyrights included in the
Collateral for such term and on such conditions and in such manner as the
Collateral Agent shall in its sole judgment determine;
(vii) apply any monies constituting Collateral or proceeds thereof
in accordance with the provisions of Section 7.4; and
(viii) take any other action as specified in clauses (1) through (5),
inclusive, of Section 9-607 of the UCC;
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it being understood that each Assignor's obligation so to deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction, the Collateral Agent shall be entitled to a
decree requiring specific performance by such Assignor of said obligation. By
accepting the benefits of this Agreement and each other Collateral Document, the
Secured Creditors expressly acknowledge and agree that this Agreement and each
other Collateral Document may be enforced only by the action of the Collateral
Agent acting upon the instructions of the Required Secured Creditors and that no
other Secured Creditor shall have any right individually to seek to enforce this
Agreement or any other Collateral Document or to realize upon the security to be
granted hereby or thereby, it being understood and agreed that such rights and
remedies may be exercised by the Collateral Agent for the benefit of the Secured
Creditors upon the terms of this Agreement and the other Collateral Documents.
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7.2 Remedies; Disposition of the Collateral. If any Event of Default
shall have occurred and be continuing, then any Collateral repossessed by the
Collateral Agent under or pursuant to Section 7.1 hereof and any other
Collateral whether or not so repossessed by the Collateral Agent, may be sold,
assigned, leased or otherwise disposed of under one or more contracts or as an
entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at
such place or places and on such terms as the Collateral Agent may, in
compliance with any mandatory requirements of applicable law, determine to be
commercially reasonable. Any of the Collateral may be sold, leased or otherwise
disposed of, in the condition in which the same existed when taken by the
Collateral Agent or after any overhaul or repair at the expense of the relevant
Assignor which the Collateral Agent shall determine to be commercially
reasonable. Any such sale, lease or other disposition may be effected by means
of a public disposition or private disposition, effected in accordance with the
applicable requirements (in each case if and to the extent applicable) of
Sections 9-610 through 9-613 of the UCC and/or such other mandatory requirements
of applicable law as may apply to the respective disposition, provided that at
least 10 days written notice of the time and place of any such sale shall be
given to the respective Assignor. The Collateral Agent may, without notice or
publication, adjourn any public or private disposition or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the
disposition, and such disposition may be made at any time or place to which the
disposition may be so adjourned. To the extent permitted by any such requirement
of law, the Collateral Agent may bid for and become the purchaser (and may pay
all or any portion of the purchase price by crediting Obligations against the
purchase price) of the Collateral or any item thereof, offered for disposition
in accordance with this Section 7.2 without accountability to the relevant
Assignor. If, under applicable law, the Collateral Agent shall be permitted to
make disposition of the Collateral within a period of time which does not permit
the giving of notice to the relevant Assignor as hereinabove specified, the
Collateral Agent need give such Assignor only such notice of disposition as
shall be required by such applicable law. Each Assignor agrees to do or cause to
be done all such other acts and things as may be reasonably necessary to make
such disposition or dispositions of all or any portion of the Collateral valid
and binding and in compliance with any and all applicable laws, regulations,
orders, writs, injunctions, decrees or awards of any and all courts, arbitrators
or governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales, all at such Assignor's expense.
7.3 Waiver of Claims. Except as otherwise provided in this Agreement,
EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE
AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S TAKING POSSESSION
OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING,
WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT
REMEDY OR REMEDIES, and each Assignor hereby further waives, to the extent
permitted by law:
(i) all damages occasioned by such taking of possession or any
such disposition except any damages which are the direct result of the
Collateral Agent's gross negligence, bad faith or willful misconduct;
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(ii) all other requirements as to the time, place and terms of sale
or other requirements with respect to the enforcement of the Collateral
Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable law
in order to prevent or delay the enforcement of this Agreement or the
absolute sale of the Collateral or any portion thereof, and each Assignor,
for itself and all who may claim under it, insofar as it or they now or
hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against such
Assignor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from,
through and under such Assignor.
7.4 Application of Proceeds. (a) All moneys collected by the
Collateral Agent (or, to the extent the Pledge Agreement or any other Collateral
Document requires proceeds of collateral under such other Collateral Document to
be applied in accordance with the provisions of this Agreement, the Pledgee or
Collateral Agent under such other Collateral Document) upon any sale or other
disposition of the Collateral, together with all other moneys received by the
Collateral Agent hereunder, shall be applied as follows:
(i) first, to the payment of all amounts owing the Collateral
Agent of the type described in clauses (iii), (iv) and (v) of the
definition of "Obligations";
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), to the payment of all amounts owing
to any Agent of the type described in clauses (v) and (vi) of the
definition of "Obligations";
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Primary Obligations shall be paid to the Secured Creditors as
provided in Section 7.4(e) hereof, with each Secured Creditor receiving an
amount equal to its outstanding Primary Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations, its Pro Rata
Share of the amount remaining to be distributed;
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, an amount
equal to the outstanding Secondary Obligations shall be paid to the Secured
Creditors as provided in Section 7.4(e) hereof, with each Secured Creditor
receiving an amount equal to its outstanding Secondary Obligations or, if
the proceeds are insufficient to pay in full all such Secondary
Obligations, its Pro Rata Share of the amount remaining to be distributed;
and
(v) fifth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iv), inclusive, and
following the termination of this
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Agreement pursuant to Section 10.8(a) hereof, to the relevant Assignor or
to whomever may be lawfully entitled to receive such surplus.
(b) For purposes of this Agreement, (x) "Pro Rata Share" shall mean,
when calculating a Secured Creditor's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid amount of such Secured Creditor's Primary Obligations
or Secondary Obligations, as the case may be, and the denominator of which is
the then outstanding amount of all Primary Obligations or Secondary Obligations,
as the case may be, (y) "Primary Obligations" shall mean (i) in the case of the
Loan Document Obligations, all principal of, premium, fees and interest on, all
Loans, all amounts of unreimbursed drawings under Letters of Credit, the stated
amount of all outstanding Letters of Credit and all fees with respect to Letters
of Credit and (ii) in the case of the Other Obligations, all amounts due under
such Secured Hedging Agreements (other than indemnities, fees (including,
without limitation, attorneys' fees) and similar obligations and liabilities)
and (z) "Secondary Obligations" shall mean all Obligations other than Primary
Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 7.4 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Creditors, with each Secured Creditor whose Primary Obligations or
Secondary Obligations, as the case may be, have not been paid in full to receive
an amount equal to such excess amount multiplied by a fraction the numerator of
which is the unpaid Primary Obligations or Secondary Obligations, as the case
may be, of such Secured Creditor and the denominator of which is the unpaid
Primary Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors entitled to such distribution.
(d) Each of the Secured Creditors, by their acceptance of the
benefits hereof and of the other Collateral Documents, agrees and acknowledges
that if the Lender Creditors receive a distribution on account of undrawn
amounts with respect to Letters of Credit issued under the Credit Agreement
(which shall only occur after all outstanding Revolving Loans under the Credit
Agreement and unreimbursed drawings under Letters of Credit have been paid in
full), such amounts shall be paid to the Administrative Agent under the Credit
Agreement and held by it, for the equal and ratable benefit of the Lender
Creditors, as cash security for the repayment of Obligations owing to the Lender
Creditors as such. If any amounts are held as cash security pursuant to the
immediately preceding sentence, then upon the termination of all outstanding
Letters of Credit under the Credit Agreement, and after the application of all
such cash security to the repayment of all Obligations owing to the Lender
Creditors after giving effect to the termination of all such Letters of Credit,
if there remains any excess cash, such excess cash shall be returned by the
Administrative Agent to the Collateral Agent for distribution in accordance with
Section 7.4(a) hereof.
(e) All payments required to be made hereunder shall be made (x) if
to the Lender Creditors, to the Administrative Agent for the account of the
Lender Creditors and (y) if to the Other Creditors, to the trustee, paying agent
or other similar representative (each, a
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"Representative") for the Other Creditors or, in the absence of such a
Representative, directly to the Other Creditors.
(f) For purposes of applying payments received in accordance with
this Section 7.4, the Collateral Agent shall be entitled to rely upon (i) the
Administrative Agent and (ii) the Representative or, in the absence of such a
Representative, upon the Other Creditors for a determination (which the
Administrative Agent, each Representative and the Other Creditors agree (or
shall agree) to provide upon request of the Collateral Agent) of the outstanding
Primary Obligations and Secondary Obligations owed to the Lender Creditors or
the Other Creditors, as the case may be. Unless it has received written notice
from a Lender Creditor or an Other Creditor to the contrary, the Administrative
Agent and each Representative, in furnishing information pursuant to the
preceding sentence, and the Collateral Agent, in acting hereunder, shall be
entitled to assume that no Secondary Obligations are outstanding. Unless it has
written notice from an Other Creditor to the contrary, the Collateral Agent, in
acting hereunder, shall be entitled to assume that no Secured Hedging Agreements
are in existence.
(g) This Agreement is made with full recourse to each Assignor
(including, without limitation, with full recourse to all assets of such
Assignor) and pursuant to and upon all the warranties, representations,
covenants and agreements on the part of such Assignor contained herein, in the
other Secured Debt Agreements and otherwise in writing in connection herewith or
therewith. It is understood that the Assignors shall remain jointly and
severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral and the aggregate amount of the Obligations.
7.5 Remedies Cumulative. Each and every right, power and remedy
hereby specifically given to the Collateral Agent shall be in addition to every
other right, power and remedy specifically given to the Collateral Agent under
this Agreement, the other Secured Debt Agreements or now or hereafter existing
at law, in equity or by statute and each and every right, power and remedy
whether specifically herein given or otherwise existing may be exercised from
time to time or simultaneously and as often and in such order as may be deemed
expedient by the Collateral Agent. All such rights, powers and remedies shall be
cumulative and the exercise or the beginning of the exercise of one shall not be
deemed a waiver of the right to exercise any other or others. No delay or
omission of the Collateral Agent in the exercise of any such right, power or
remedy and no renewal or extension of any of the Obligations shall impair any
such right, power or remedy or shall be construed to be a waiver of any
Potential Event of Default or Event of Default or an acquiescence thereof. No
notice to or demand on any Assignor in any case shall entitle it to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Collateral Agent to any other or further
action in any circumstances without notice or demand. In the event that the
Collateral Agent shall bring any suit to enforce any of its rights hereunder and
shall be entitled to judgment, then in such suit the Collateral Agent may
recover reasonable expenses, including reasonable attorneys' fees, and the
amounts thereof shall be included in such judgment.
7.6 Discontinuance of Proceedings. In case the Collateral Agent shall
have instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Collateral Agent, then and in every such
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case the relevant Assignor, except to the extent otherwise prohibited by such
determination, the Collateral Agent and each holder of any of the Obligations
shall be restored to their former positions and rights hereunder with respect to
the Collateral subject to the security interest created under this Agreement,
and all rights, remedies and powers of the Collateral Agent shall continue as if
no such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1 Indemnity. (a) Each Assignor jointly and severally agrees to
indemnify, reimburse and hold the Collateral Agent, each other Secured Creditor
and their respective successors, assigns, employees, affiliates and agents
(hereinafter in this Section 8.1 referred to individually as "Indemnitee," and
collectively as "Indemnitees") harmless from any and all liabilities,
obligations, damages, injuries, penalties, claims, demands, actions, suits,
judgments and any and all reasonable costs, expenses or disbursements (including
reasonable attorneys' fees and expenses) (for the purposes of this Section 8.1
the foregoing are collectively called "expenses") of whatsoever kind and nature
imposed on, asserted against or incurred by any of the Indemnitees in any way
relating to or arising out of this Agreement, any other Secured Debt Agreement
or any other document executed in connection herewith or therewith or in any
other way connected with the administration of the transactions contemplated
hereby or thereby or the enforcement of any of the terms of, or the preservation
of any rights under any thereof, or in any way relating to or arising out of the
manufacture, ownership, ordering, purchase, delivery, control, acceptance,
lease, financing, possession, operation, condition, sale, return or other
disposition, or use of the Collateral (including, without limitation, latent or
other defects, whether or not discoverable), the violation of the laws of any
country, state or other governmental body or unit, any tort (including, without
limitation, claims arising or imposed under the doctrine of strict liability, or
for or on account of injury to or the death of any Person (including any
Indemnitee), or property damage), or contract claim; provided that no Indemnitee
shall be indemnified pursuant to this Section 8.1(a) for losses, damages or
liabilities to the extent caused by the gross negligence, bad faith or willful
misconduct of such Indemnitee. Each Assignor agrees that upon written notice by
any Indemnitee of the assertion of such a liability, obligation, damage, injury,
penalty, claim, demand, action, suit or judgment, the relevant Assignor shall
assume full responsibility for the defense thereof. Each Indemnitee agrees to
use its best efforts to promptly notify the relevant Assignor of any such
assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a) hereof,
each Assignor agrees, jointly and severally, to pay or reimburse the Collateral
Agent for any and all reasonable fees, costs and expenses of whatever kind or
nature incurred in connection with the creation, preservation or protection of
the Collateral Agent's Liens on, and security interest in, the Collateral,
including, without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public offices, payment or
discharge of any taxes or Liens upon or in respect of the Collateral, premiums
for insurance with respect to the Collateral and all other fees, costs and
expenses in connection with protecting, maintaining or preserving the Collateral
and the Collateral Agent's interest therein, whether through judicial
proceedings or
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otherwise, or in defending or prosecuting any actions, suits or proceedings
arising out of or relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or (b)
hereof, each Assignor agrees, jointly and severally, to pay, indemnify and hold
each Indemnitee harmless from and against any loss, reasonable costs, damages
and reasonable expenses which such Indemnitee may suffer, expend or incur in
consequence of or growing out of any misrepresentation by any Assignor in this
Agreement, any other Secured Debt Agreement or in any writing contemplated by or
made or delivered pursuant to or in connection with this Agreement or any other
Secured Debt Agreement.
(d) If and to the extent that the obligations of any Assignor under
this Section 8.1 are unenforceable for any reason, such Assignor hereby agrees
to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
8.2 Indemnity Obligations Secured by Collateral; Survival. Any
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Assignor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment of all of the
other Obligations and notwithstanding the full payment of all the Notes issued,
and Loans made, under the Credit Agreement, the termination of all Letters of
Credit issued under the Credit Agreement, the termination of all Secured Hedging
Agreements entered into with the Other Creditors and the payment of all other
Obligations and notwithstanding the discharge thereof and the occurrence of the
Termination Date.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified. Such
definitions shall be equally applicable to the singular and plural forms of the
terms defined.
"Account" shall mean any "account" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, and in any event shall include but shall not be limited to, all rights to
payment of any monetary obligation, whether or not earned by performance, (i)
for property that has been or is to be sold, leased, licensed, assigned or
otherwise disposed of, (ii) for services rendered or to be rendered, (iii) for a
policy of insurance issued or to be issued, (iv) for a secondary obligation
incurred or to be incurred, (v) for energy provided or to be provided, (vi) for
the use or hire of a vessel under a charter or other contract, (vii) arising out
of the use of a credit or charge card or information contained on or for use
with the card, or (viii) as winnings in a lottery or other game of chance
operated or sponsored by a State, governmental unit of a State, or person
licensed or authorized to operate the game by a State or governmental unit of a
State. Without limiting the foregoing, the term "account" shall include all
Health-Care-Insurance Receivables.
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"Administrative Agent" shall have the meaning provided in the recitals
of this Agreement.
"Agreement" shall mean this amended and restated Security Agreement as
so amended and restated and as the same may be further amended, supplemented,
restated, and/or otherwise modified from time to time in accordance with its
terms.
"Alternate Perfected Deposit Account" shall have the meaning provided
in Section 3.9(a) of this Agreement.
"As-Extracted Collateral" shall mean "as-extracted collateral" as such
term is defined in the Uniform Commercial Code as in effect on the date hereof
in the State of New York.
"Assignor" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrower" shall have the meaning provided in the recitals of this
Agreement.
"Cash Collateral Account" shall mean a cash collateral account
maintained with, and in the sole dominion and control of, the Collateral Agent
for the benefit of the Secured Creditors.
"Chattel Paper" shall mean "chattel paper" as such term is defined in
the Uniform Commercial Code as in effect on the date hereof in the State of New
York. Without limiting the foregoing, the term "Chattel Paper" shall in any
event include all Tangible Chattel Paper and all Electronic Chattel Paper.
"Class" shall have the meaning provided in Section 10.2 of this
Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a) of this
Agreement.
"Collateral Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Commercial Tort Claims" shall mean "commercial tort claims" as such
term is defined in the Uniform Commercial Code as in effect on the date hereof
in the State of New York.
"Contract Rights" shall mean all rights of any Assignor under each
Contract, including, without limitation, (i) any and all rights to receive and
demand payments under any or all Contracts, (ii) any and all rights to receive
and compel performance under any or all Contracts and (iii) any and all other
rights, interests and claims now existing or in the future arising in connection
with any or all Contracts.
"Contracts" shall mean all contracts between any Assignor and one or
more additional parties (including, without limitation, any Secured Hedging
Agreements, licensing
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agreements and any partnership agreements, joint venture agreements and limited
liability company agreements).
"Copyrights" shall mean any United States copyright owned by any
Assignor, including any registrations of any copyrights, in the United States
Copyright Office or any foreign equivalent office, as well as any application
for a copyright registration now or hereafter made with the United States
Copyright Office or any foreign equivalent office by any Assignor.
"Credit Agreement" shall have the meaning provided in the recitals of
this Agreement.
"Default" shall mean any event which with notice or lapse of time, or
both, would constitute an Event of Default.
"Deposit Accounts" shall mean all "deposit accounts" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York.
"Documents" shall mean "documents" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Domain Names" shall mean all Internet domain names and associated URL
addresses in or to which any Assignor now or hereafter has any right, title or
interest.
"Electronic Chattel Paper" shall mean "electronic chattel paper" as
such term is defined in the Uniform Commercial Code as in effect on the date
hereof in the State of New York.
"Equipment" shall mean any "equipment" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, and in any event, shall include, but shall not be limited to, all
machinery, equipment, furnishings, fixtures and vehicles now or hereafter owned
by any Assignor and any and all additions, substitutions and replacements of any
of the foregoing and all accessions thereto, wherever located, together with all
attachments, components, parts, equipment and accessories installed thereon or
affixed thereto.
"Event of Default" shall mean any Event of Default under, and as
defined in, the Credit Agreement and shall in any event include, without
limitation, any payment default on any of the Obligations after the expiration
of any applicable grace period.
"Excluded Local Deposit Account" shall mean each Deposit Account
listed on Annex F hereto and designated as an "Excluded Local Deposit Account"
thereon (which shall, in any such case, be a local deposit account (and not a
mid-tier concentration account)).
"General Intangibles" shall mean "general intangibles" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York.
"Goods" shall mean "goods" as such term is defined in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
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"Health-Care-Insurance Receivable" shall mean any
"health-care-insurance receivable" as such term is defined in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Indemnitee" shall have the meaning provided in Section 8.1(a) of this
Agreement.
"Instrument" shall mean "instruments" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Inventory" shall mean merchandise, inventory and goods, and all
additions, substitutions and replacements thereof and all accessions thereto,
wherever located, together with all goods, supplies, incidentals, packaging
materials, labels, materials and any other items used or usable in
manufacturing, processing, packaging or shipping same, in all stages of
production from raw materials through work in process to finished goods, and all
products and proceeds of whatever sort and wherever located any portion thereof
which may be returned, rejected, reclaimed or repossessed by the Collateral
Agent from any Assignor's customers, and shall specifically include all
"inventory" as such term is defined in the Uniform Commercial Code as in effect
on the date hereof in the State of New York.
"Investment Property" shall mean "investment property" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York.
"Lender Creditors" shall have the meaning provided in the recitals of
this Agreement.
"Lenders" shall have the meaning provided in the recitals of this
Agreement.
"Letter-of-Credit Rights" shall mean "letter-of-credit rights" as such
term is defined in the Uniform Commercial Code as in effect on the date hereof
in the State of New York.
"Liens" shall mean any security interest, mortgage, pledge, lien,
claim, charge, encumbrance, title retention agreement, lessor's interest in a
financing lease or analogous instrument, in, of, or on any Assignor's property.
"Loan Document Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"Location" of any Assignor, shall mean such Assignor's "location" as
determined pursuant to Section 9-307 of the UCC.
"Marks" shall mean all right, title and interest in and to any
trademarks, service marks and trade names now held or hereafter acquired by any
Assignor, including any registration or application for registration of any
trademarks and service marks now held or hereafter acquired by any Assignor,
which are registered or filed in the United States Patent and Trademark Office
or the equivalent thereof in any state of the United States or any equivalent
foreign office or agency, as well as any unregistered trademarks and service
marks used by an
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Assignor and any trade dress including logos, designs, fictitious business names
and other business identifiers used by any Assignor.
"Material Adverse Effect" shall mean (i) a material adverse effect
upon the business, operations, properties, assets or condition (financial or
otherwise) of Holdings and its Subsidiaries, taken as a whole or (ii) the
impairment of the legal ability of any Credit Agreement Party to perform, or of
Administrative Agent, Collateral Agent or Lenders to enforce, the Obligations.
"Obligations" shall mean and include all of the following:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, principal, premium, interest
(including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any
Assignor at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such
proceeding), reimbursement obligations under Letters of Credit, fees, costs
and indemnities) of each Assignor to the Lender Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection
with, each Loan Document to which such Assignor is a party (including, in
the case of each Assignor that is a Guarantor, all such obligations,
liabilities and indebtedness of such Assignor under its Guaranty) and the
due performance and compliance by such Assignor with all of the terms,
conditions and agreements contained in each such Loan Document (all such
obligations, liabilities and indebtedness under this clause (i), except to
the extent consisting of obligations or indebtedness with respect to
Secured Hedging Agreements, being herein collectively called the "Loan
Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, all interest that accrues
after the commencement of any case, proceeding or other action relating to
the bankruptcy, insolvency, reorganization or similar proceeding of any
Assignor at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such
proceeding) owing by such Assignor to the Other Creditors under, or with
respect to (including, in the case of each Assignor that is a Guarantor,
all such obligations, liabilities and indebtedness of such Assignor under
its Guaranty), each Secured Hedging Agreement, whether such Secured Hedging
Agreement is now in existence or hereafter arising, and the due performance
and compliance by such Assignor with all of the terms, conditions and
agreements contained therein (all such obligations, liabilities and
indebtedness described in this clause (ii) being herein collectively called
the "Other Obligations");
(iii) any and all sums advanced by the Collateral Agent in order to
preserve the Collateral or preserve its security interest in the
Collateral;
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities of such
Assignor referred to in clauses (i) and (ii)
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above, after an Event of Default shall have occurred and be continuing, the
reasonable expenses of retaking, holding, preparing for sale or lease,
selling or otherwise disposing of or realizing on the Collateral, or of any
exercise by the Collateral Agent of its rights hereunder, together with
reasonable attorneys' fees and court costs;
(v) all amounts paid by any Indemnitee as to which such Indemnitee
has the right to reimbursement under Section 8.1 of this Agreement; and
(vi) all amounts owing to any Agent pursuant to any of the Loan
Documents in its capacity as such;
it being acknowledged and agreed that the "Obligations" shall include extensions
of credit of the types described above, whether outstanding on the date of this
Agreement or extended from time to time after the date of this Agreement.
"Original Security Agreement" shall have the meaning provided in the
recitals of this Agreement.
"Other Creditors" shall have the meaning provided in the recitals of
this Agreement.
"Other Obligations" shall have the meaning provided in the definition
of "Obligations" in this Article IX.
"Patents" shall mean any patent to which any Assignor now or hereafter
has any right, title or interest therein, and any divisions, continuations
(including, but not limited to, continuations-in-parts) and improvements
thereof, as well as any application for a patent now or hereafter made by any
Assignor.
"Permits" shall mean, to the extent permitted to be assigned by the
terms thereof or by applicable law, all licenses, permits, rights, orders,
variances, franchises or authorizations of or from any governmental authority or
agency.
"Primary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Pro Rata Share" shall have the meaning provided in Section 7.4(b) of
this Agreement.
"Proceeds" shall mean all "proceeds" as such term is defined in the
Uniform Commercial Code as in effect in the State of New York on the date hereof
and, in any event, shall also include, but not be limited to, (i) any and all
proceeds of any insurance, indemnity, warranty or guaranty payable to the
Collateral Agent or any Assignor from time to time with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever) made or due and
payable to any Assignor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Collateral by any governmental authority (or any person acting under color of
governmental authority) and (iii) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
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"Registered Organization" shall have the meaning provided in the
Uniform Commercial Code as in effect in the State of New York.
"Representative" shall have the meaning provided in Section 7.4(e) of
this Agreement.
"Required Secured Creditors" shall mean (i) at any time when any Loan
Document Obligations are outstanding or any Commitments under the Credit
Agreement exist, the Requisite Lenders (or, to the extent provided in subsection
10.6 of the Credit Agreement, each of the Lenders) and (ii) at any time after
all of the Loan Document Obligations have been paid in full in cash and all
Commitments under the Credit Agreement have been terminated and no further
Commitments may be provided thereunder, the holders of a majority of the Other
Obligations.
"Requisite Creditors" shall have the meaning provided in Section 10.2
of this Agreement.
"Secondary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Secured Creditors" shall have the meaning provided in the recitals of
this Agreement.
"Secured Debt Agreements" shall mean and include this Agreement, the
other Loan Documents and the Secured Hedging Agreements entered into with any
Other Creditor.
"Secured Hedging Agreements" shall have the meaning provided in the
recitals of this Agreement.
"Software" shall mean "software" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Specified Collateral Event" shall mean the failure of Borrower and
its Subsidiaries to maintain a rating of at least "BB-" from Standard & Poor's
Ratings Group or at least "Ba3" from ▇▇▇▇▇'▇ Investors Service, Inc..
"Subject Deposit Account" shall mean each Deposit Account listed on
Annex F hereto and designated as a "Subject Deposit Account" thereon.
"Supporting Obligations" shall mean any "supporting obligation" as
such term is defined in the Uniform Commercial Code as in effect on the date
hereof in the State of New York, now or hereafter owned by any Assignor, or in
which any Assignor has any rights, and, in any event, shall include, but shall
not be limited to all of such Assignor's rights in any Letter-of-Credit Right or
secondary obligation that supports the payment or performance of, and all
security for, any Account, Chattel Paper, Document, General Intangible,
Instrument or Investment Property.
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"Tangible Chattel Paper" shall mean "tangible chattel paper" as such
term is defined in the Uniform Commercial Code as in effect on the date hereof
in the State of New York.
"Termination Date" shall have the meaning provided in Section 10.8(a)
of this Agreement.
"Timber-to-be-Cut" shall mean "timber-to-be-cut" as such term is used
in the Uniform Commercial Code as in effect on the date hereof in the State of
New York.
"Trade Secrets" shall mean any secretly held existing engineering or
other data, information, production procedures and other know-how relating to
the design, manufacture, assembly, installation, use, operation, marketing, sale
and/or servicing of any products or business of an Assignor worldwide, whether
written or not.
"Trade Secret Rights" shall have the meaning provided in Section 5.1
of this Agreement. "Transmitting Utility" shall have the meaning given such term
in Section 9-102(a)(80) of the UCC.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
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ARTICLE X
MISCELLANEOUS
10.1 Notices. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
courier service and all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by courier, be effective
when deposited in the mails, delivered to the telegraph company, cable company
or overnight courier, as the case may be, or sent by telex or telecopier, except
that notices and communications to the Collateral Agent or any Assignor shall
not be effective until received by the Collateral Agent or such Assignor, as the
case may be. All notices and other communications shall be in writing and
addressed as follows:
(a) if to any Assignor, c/o:
Domino's, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇, Treasurer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Collateral Agent, at:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Lender Creditor other than the Collateral Agent, at
such address as such Lender Creditor shall have specified in the Credit
Agreement;
(d) if to any Other Creditor, at such address as such Other Creditor
shall have specified in writing to each Assignor and the Collateral Agent;
or at such other address or addressed to such other individual as shall have
been furnished in writing by any Person described above to the party required to
give notice hereunder.
10.2 Waiver; Amendment. Except as provided in Sections 10.8 and
10.12, none of the terms and conditions of this Agreement may be changed,
waived, modified or varied in any manner whatsoever unless in writing duly
signed by each Assignor directly affected thereby and the Collateral Agent (with
the written consent of either (x) the Requisite Lenders (or all of the Lenders
to the extent required by Section 10.6 of the Credit Agreement) at all times
prior to the time at which all Loan Document Obligations have been paid in full
or (y) the holders of at least a majority of the outstanding Other Obligations
at all times after the time at which all Loan
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Document Obligations have been paid in full); provided, however, that any
change, waiver, modification or variance affecting the rights and benefits of a
single Class of Secured Creditors (and not all Secured Creditors in a like or
similar manner) also shall require the written consent of the Requisite
Creditors of such affected Class. For the purpose of this Agreement, the term
"Class" shall mean each class of Secured Creditors, i.e., whether (x) the Lender
Creditors as holders of the Loan Document Obligations or (y) the Other Creditors
as the holders of the Other Obligations. For the purpose of this Agreement, the
term "Requisite Creditors" of any Class shall mean each of (x) with respect to
the Loan Document Obligations, the Requisite Lenders (or, to the extent provided
in subsection 10.6 of the Credit Agreement, each of the Lenders), and (y) with
respect to the Other Obligations, the holders of at least a majority of all
Other Obligations outstanding from time to time.
10.3 Obligations Absolute. The obligations of each Assignor hereunder
shall remain in full force and effect without regard to, and shall not be
impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of such Assignor; (b) any
exercise or non-exercise, or any waiver of, any right, remedy, power or
privilege under or in respect of this Agreement or any other Secured Debt
Agreement; or (c) any amendment to or modification of any Secured Debt Agreement
or any security for any of the Obligations; whether or not such Assignor shall
have notice or knowledge of any of the foregoing.
10.4 Successors and Assigns. This Agreement shall be binding upon each
Assignor and its successors and assigns (although no Assignor may assign its
rights and obligations hereunder except in accordance with the provisions of the
Secured Debt Agreements) and shall inure to the benefit of the Collateral Agent
and the other Secured Creditors and their respective successors and assigns. All
agreements, statements, representations and warranties made by each Assignor
herein or in any certificate or other instrument delivered by such Assignor or
on its behalf under this Agreement shall be considered to have been relied upon
by the Secured Creditors and shall survive the execution and delivery of this
Agreement and the other Secured Debt Agreements regardless of any investigation
made by the Secured Creditors or on their behalf.
10.5 Headings Descriptive. The headings of the several sections of
this Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement.
10.6 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND,
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH ASSIGNOR HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
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COURTS. EACH ASSIGNOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH
COURTS LACK JURISDICTION OVER SUCH ASSIGNOR, AND AGREES NOT TO PLEAD OR CLAIM IN
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS
JURISDICTION OVER SUCH ASSIGNOR. EACH ASSIGNOR FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO ANY SUCH ASSIGNOR AT ITS ADDRESS FOR NOTICES AS
PROVIDED IN SECTION 10.1 ABOVE, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. EACH ASSIGNOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER LOAN
DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE COLLATERAL AGENT UNDER THIS
AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
ANY ASSIGNOR IN ANY OTHER JURISDICTION.
(b) EACH ASSIGNOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS
OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
10.7 Assignor's Duties. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Assignor shall remain
liable to perform all of the obligations, if any, assumed by it with respect to
the Collateral and the Collateral Agent shall not have any obligations or
liabilities with respect to any Collateral by reason of or arising out of this
Agreement (provided, that the Collateral Agent shall be liable for the
safekeeping of the Collateral already in its possession), nor shall the
Collateral Agent be required or obligated in any manner to perform or fulfill
any of the obligations of any Assignor under or with respect to any Collateral.
10.8 Termination; Release. (a) On the Termination Date, this Agreement
shall terminate (provided that all indemnities set forth herein including,
without limitation in Section
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8.1 hereof, shall survive such termination) and the Collateral Agent, at the
request and expense of the respective Assignor, will promptly execute and
deliver to such Assignor a proper instrument or instruments (including Uniform
Commercial Code termination statements) acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver to
such Assignor (without recourse and without any representation or warranty) such
of the Collateral as may be in the possession of the Collateral Agent and as has
not theretofore been sold or otherwise applied or released pursuant to this
Agreement. As used in this Agreement, "Termination Date" shall mean the date
upon which the Commitments under the Credit Agreement have been terminated and
all Secured Hedging Agreements entered into with any Other Creditor have been
terminated, no Note, Loan or Letter of Credit is outstanding and all other
Obligations (other than indemnities described in Section 11 hereof and described
in Section 10.3 of the Credit Agreement, and any other indemnities set forth in
any other Collateral Documents, in each case which are not then due and payable)
then due and payable have been paid in full in cash.
(b) In the event that any part of the Collateral is sold, transferred
or otherwise disposed of (x) at any time prior to the time at which all Loan
Document Obligations have been paid in full and all Commitments and Letters of
Credit under the Credit Agreement have been terminated, in connection with a
sale or disposition permitted by subsection 7.7 of the Credit Agreement or is
otherwise released at the direction of the Required Lenders (or all the Lenders
if required by subsection 10.6 of the Credit Agreement) or (y) at any time
thereafter, to the extent permitted by the other Secured Debt Agreements, and in
the case of clauses (x) and (y), the proceeds of such sale or disposition (or
from such release) are applied in accordance with the terms of the Credit
Agreement or such other Secured Debt Agreement, as the case may be, to the
extent required to be so applied, such Collateral will be sold, transferred or
otherwise disposed of free and clear of the Liens created by this Agreement and
the Collateral Agent, at the request and expense of the relevant Assignor, will
duly and promptly assign, transfer and deliver to such Assignor (without
recourse and without any representation or warranty) such of the Collateral as
is then being (or has been) so sold, transferred or otherwise disposed of, or
released, and as may be in the possession of the Collateral Agent and has not
theretofore been released pursuant to this Agreement. Furthermore, upon the
release of any Guarantor from the Subsidiaries Guaranty in accordance with the
provisions thereof, such Assignor (and the Collateral at such time assigned by
the respective Assignor pursuant hereto) shall be released from this Agreement.
(c) At any time that an Assignor desires that the Collateral Agent
take any action to acknowledge or give effect to any release of Collateral
pursuant to the foregoing Section 10.8(a) or (b), such Assignor shall deliver to
the Collateral Agent a certificate signed by a senior officer of such Assignor
stating that the release of the respective Collateral is permitted pursuant to
such Section 10.8(a) or (b). At any time that Borrower or the respective
Assignor desires that a Subsidiary of Borrower which has been released from the
Subsidiaries Guaranty be released hereunder as provided in the last sentence of
Section 10.8(b), it shall deliver to the Collateral Agent a certificate signed
by a principal executive officer of Borrower and the respective Assignor stating
that the release of the respective Assignor (and its Collateral) is permitted
pursuant to such Section 10.8(b).
(d) The Collateral Agent shall have no liability whatsoever to any
other Secured Creditor as the result of any release of Collateral by it in
accordance with (or which the
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Collateral Agent in the absence of gross negligence and willful misconduct
believes to be in accordance with) this Section 10.8.
10.9 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with each Assignor and the
Collateral Agent.
10.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.11 The Collateral Agent and the other Secured Creditors. The
Collateral Agent will hold in accordance with this Agreement all items of the
Collateral at any time received under this Agreement. It is expressly understood
and agreed that the obligations of the Collateral Agent as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement and in Section 9 of the Credit Agreement. The Collateral Agent shall
act hereunder on the terms and conditions set forth herein and in Section 9 of
the Credit Agreement.
10.12 Additional Assignors. It is understood and agreed that any
Subsidiary of Holdings that desires to become an Assignor hereunder, or is
required to execute a counterpart of this Agreement after the date hereof
pursuant to the requirements of the Credit Agreement or any other Loan Document,
shall become an Assignor hereunder by executing a counterpart hereof and
delivering same to the Collateral Agent, (y) delivering supplements to Annexes A
through F, inclusive, and H through K, inclusive, hereto as are necessary to
cause such Annexes to be complete and accurate with respect to such additional
Assignor on such date and (z) taking all actions as specified in this Agreement
as would have been taken by such Assignor had it been an original party to this
Agreement, in each case with all documents required above to be delivered to the
Collateral Agent and with all documents and actions required above to be taken
to the reasonable satisfaction of the Collateral Agent.
10.13 Amendment and Restatement. Each of the Collateral Agent and each
of the Assignors hereby acknowledges and agrees that from and after the
Restatement Effective Date, this Agreement amends, restates and supersedes the
Original Security Agreement in its entirety.
[Remainder of this page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
DOMINO'S, INC., as an Assignor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
TISM, INC., as an Assignor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
DOMINO'S PIZZA LLC, as an Assignor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
DOMINO'S PIZZA INTERNATIONAL, INC.,
as an Assignor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
DOMINO'S PIZZA GOVERNMENT
SERVICES DIVISION, INC., as an Assignor
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
DOMINO'S PIZZA INTERNATIONAL
PAYROLL SERVICES, INC., as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
DOMINO'S PIZZA PMC, INC.,
as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
DOMINO'S FRANCHISE HOLDING CO.,
as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
Accepted and Agreed to:
JPMORGAN CHASE BANK,
as Collateral Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President