Exhibit 10.992
EXHIBIT C
[Form of Pledge Agreement]
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT dated as of June 29,
2000 between UNITED STATIONERS INC., a corporation duly organized and validly
existing under the laws of the State of Delaware (together with its successors
and assigns, the "Pledgor"); and THE CHASE MANHATTAN BANK, as agent for the
lenders (the "Lenders") party to the Credit Agreement referred to below (in such
capacity, together with its successors in such capacity, the "Administrative
Agent").
WHEREAS, United Stationers Supply Co., a wholly-owned subsidiary of
the Pledgor and a corporation duly organized and validly existing under the laws
of the State of Illinois (the "Company"), the Pledgor, the Lenders and the
Administrative Agent are parties to a Credit Agreement dated as of March 30,
1995 (as amended and restated as of October 31, 1996, as of April 3, 1998 and as
of June 29, 2000 as further modified and supplemented and in effect from time to
time, the "Credit Agreement");
WHEREAS, to induce said lenders to enter into the Credit Agreement
and to extend credit thereunder, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Pledgor has
agreed to pledge and grant a security interest in the Collateral (as hereinafter
defined) as security for the Secured Obligations (as hereinafter defined).
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are
used herein as defined therein. In addition, as used herein:
"Collateral" shall have the meaning ascribed thereto in Section 3
hereof.
"Foreign Subsidiary" shall mean any Subsidiary of the Pledgor that
is not organized or created under the laws of the United States of
America, any State thereof or the District of Columbia.
"Pledged Stock" shall have the meaning ascribed thereto in Section
3(a) hereof.
"Secured Obligations" shall mean, collectively, (a) the Guaranteed
Obligations, which include the principal of and interest on the Loans made
by the Lenders to, and the promissory notes delivered pursuant to the
Credit Agreement and held by each Lender of, the Company and all other
amounts from time to time owing to the Lenders or the Administrative Agent
by the Company under the Credit Documents including, without limitation,
all Reimbursement Obligations and interest thereon, (b) all obligations of
the Company to any Lender (or any Affiliate thereof) under any Hedging
Agreement or in
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respect of any cash management services, (c) all obligations of the
Pledgor under the Credit Agreement and the other Credit Documents
(including, without limitation, in respect of its Guarantee under Section
6 of the Credit Agreement) and (d) all obligations of the Pledgor to the
Lenders and the Administrative Agent hereunder.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as
in effect from time to time in the State of New York.
Section 2. Representations and Warranties. The Pledgor represents
and warrants to the Lenders and the Administrative Agent that:
(a) The Pledgor is (or at the time that the Pledgor acquires any
interest therein, will be) the sole beneficial owner of the Collateral and
no Lien exists or will exist upon the Collateral at any time (and no right
or option to acquire the same exists in favor of any other Person), except
for the pledge and security interest in favor of the Administrative Agent
for the benefit of the Lenders created or provided for herein, which
pledge and security interest constitute a first priority perfected pledge
and security interest in and to all of the Collateral.
(b) The Pledged Stock represented by certificates identified in
Annex 1 hereto is, and all other Pledged Stock in which the Pledgor shall
hereafter grant a security interest pursuant to Section 3 hereof will be,
duly authorized, validly existing, fully paid and non-assessable and none
of such Pledged Stock is or will be subject to any contractual
restriction, or any restriction under the charter or by-laws of the
Company, upon the transfer of such Pledged Stock (except for any such
restriction contained herein or in the Credit Agreement).
(c) The Pledged Stock represented by certificates identified in
Annex 1 hereto constitutes all of the issued and outstanding shares of
capital stock of any class of the Company beneficially owned by the
Pledgor on the date hereof (whether or not registered in the name of the
Pledgor) and said Annex 1 correctly identifies, as at the date hereof, the
respective class and par value of the shares represented by such
certificate and, the Pledgor is the registered owner of all such shares.
Section 3. The Pledge. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations, the Pledgor hereby pledges and grants to the
Administrative Agent, for the benefit of the Lenders as hereinafter provided, a
security interest in all of the Pledgor's right, title and interest in the
following Property, whether now owned by the Pledgor or hereafter acquired and
whether now existing or hereafter coming into existence (all being collectively
referred to herein as "Collateral"):
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(a) the shares of common stock of the Company represented by the
certificates identified in Annex 1 hereto and all other shares of capital
stock of whatever class of the Company or any other Subsidiary of the
Pledgor, now or hereafter owned by the Pledgor, in each case together with
the certificates representing the same (collectively, the "Pledged
Stock");
(b) all shares, securities, moneys or Property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Stock;
(c) without affecting the obligations of the Pledgor under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger in which the Company is not
the surviving corporation, all shares of each class of the capital stock
of the successor corporation (unless such successor corporation is the
Company itself) formed by or resulting from such consolidation or merger;
and
(d) all proceeds of and to any of the Property of the Pledgor
described in the preceding clauses of this Section 3 (including, without
limitation, all causes of action, claims and warranties now or hereafter
held by the Pledgor in respect of any of the items listed above) and, to
the extent related to any Property described in said clauses or such
proceeds, all books, correspondence, credit files, records, invoices and
other papers;
provided that Collateral shall not include shares of capital stock of any class
issued by any Foreign Subsidiary to the extent that the percentage of issued and
outstanding shares of capital stock of such class subject to the Lien of this
Agreement would constitute more than 65% of the issued and outstanding shares of
capital stock of such class.
Section 4. Further Assurances; Remedies. In furtherance of the grant
of the pledge and security interest pursuant to Section 3 hereof, the Pledgor
hereby agrees with each Lender and the Administrative Agent as follows:
4.01 Delivery and Other Perfection. The Pledgor shall:
(a) if any of the shares, securities, moneys or other Property
required to be pledged by the Pledgor under clauses (a), (b) and (c) of
Section 3 hereof are received by the Pledgor, forthwith either (x)
transfer and deliver to the Administrative Agent such shares or securities
so received by the Pledgor (together with the certificates representing
any such shares and securities duly endorsed in blank or accompanied by
undated stock
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powers duly executed in blank), all of which thereafter shall be held by
the Administrative Agent, pursuant to the terms of this Agreement, as part
of the Collateral or (y) take such other action as the Administrative
Agent shall deem necessary or appropriate to duly record the Lien created
hereunder in such shares, securities, moneys or other Property in said
clauses (a), (b) and (c);
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the judgment of the Administrative
Agent) to create, preserve, perfect or validate the security interest
granted pursuant hereto or to enable the Administrative Agent to exercise
and enforce its rights hereunder with respect to such pledge and security
interest, including, without limitation, following the occurrence of an
Event of Default, causing any or all of the Collateral to be transferred
of record into the name of the Administrative Agent or its nominee (and
the Administrative Agent agrees that if any Collateral is transferred into
its name or the name of its nominee, the Administrative Agent will
thereafter promptly give to the Pledgor copies of any notices and
communications received by it with respect to the Collateral);
(c) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise ▇▇▇▇ such books and records in such
manner as the Administrative Agent may reasonably require in order to
reflect the security interests granted by this Agreement; and
(d) permit representatives of the Administrative Agent, upon
reasonable notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Collateral,
and permit representatives of the Administrative Agent to be present at
the Pledgor's place of business to receive copies of all communications
and remittances relating to the Collateral, and forward copies of any
notices or communications received by the Pledgor with respect to the
Collateral, all in such manner as the Administrative Agent may require.
4.02 Other Financing Statements and Liens. The Pledgor shall not
file or suffer to be on file, or authorize or permit to be filed or to be on
file, in any jurisdiction, any financing statement or like instrument with
respect to the Collateral in which the Administrative Agent is not named as the
sole secured party for the benefit of the Lenders.
4.03 Preservation of Rights. The Administrative Agent shall not be
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
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4.04 Collateral.
(a) The Pledgor will cause the Collateral to constitute at all times
100% (or, with respect to any issuer that is a Foreign Subsidiary, at least 65%)
of the total number of shares of each class of capital stock of the Company and
each other directly owned Subsidiary of the Pledgor then outstanding.
(b) Unless an Event of Default shall have occurred and be continuing
and the Administrative Agent shall have given notice to the Pledgor of its
intention to exercise rights arising hereunder or under any other Credit
Document with respect to the Pledged Stock, the Pledgor shall have the right to
exercise all voting, consensual and other powers of ownership pertaining to the
Collateral for all purposes not inconsistent with the terms of this Agreement,
the Credit Agreement, the promissory notes delivered pursuant to the Credit
Agreement or any other instrument or agreement referred to herein or therein,
provided that the Pledgor agrees that it will not vote the Collateral in any
manner that is inconsistent with the terms of this Agreement, the Credit
Agreement, such promissory notes or any such other instrument or agreement; and
the Administrative Agent shall execute and deliver to the Pledgor or cause to be
executed and delivered to the Pledgor all such proxies, powers of attorney,
dividend and other orders, and all such instruments, without recourse, as the
Pledgor may reasonably request for the purpose of enabling the Pledgor to
exercise the rights and powers that it is entitled to exercise pursuant to this
Section 4.04(b).
(c) Unless and until an Event of Default has occurred and is
continuing, and subject to the provisions of Section 9.09 of the Credit
Agreement, the Pledgor shall be entitled to receive and retain any dividends on
the Collateral paid in cash out of earned surplus.
(d) If any Event of Default shall have occurred, then so long as
such Event of Default shall continue, and whether or not the Administrative
Agent or any Lender exercises any available right to declare any Secured
Obligation due and payable or seeks or pursues any other relief or remedy
available to it under applicable law or under this Agreement, the Credit
Agreement, the promissory notes delivered pursuant to the Credit Agreement or
any other agreement relating to such Secured Obligation, all dividends and other
distributions on the Collateral shall be paid directly to the Administrative
Agent and retained by it as part of the Collateral, subject to the terms of this
Agreement, and, if the Administrative Agent shall so request in writing, the
Pledgor agrees to execute and deliver to the Administrative Agent appropriate
additional dividend, distribution and other orders and documents to that end,
provided that if such Event of Default is cured, any such dividend or
distribution theretofore paid to the Administrative Agent shall, upon request of
the Pledgor (except to the extent theretofore applied to the Secured
Obligations), be returned by the Administrative Agent to the Pledgor.
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4.05 Events of Default, Etc. During the period during which an Event
of Default shall have occurred and be continuing:
(a) the Administrative Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
Uniform Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under
the laws in effect in any jurisdiction where any rights and remedies
hereunder may be asserted, including, without limitation, the right, to
the maximum extent permitted by law, to exercise all voting, consensual
and other powers of ownership pertaining to the Collateral as if the
Administrative Agent were the sole and absolute owner thereof (and the
Pledgor agrees to take all such action as may be appropriate to give
effect to such right);
(b) the Administrative Agent in its discretion may, in its name or
in the name of the Pledgor or otherwise, demand, ▇▇▇ for, collect or
receive any money or property at any time payable or receivable on account
of or in exchange for any of the Collateral, but shall be under no
obligation to do so; and
(c) the Administrative Agent may, upon ten business days' prior
written notice to the Pledgor of the time and place, with respect to the
Collateral or any part thereof that shall then be or shall thereafter come
into the possession, custody or control of the Administrative Agent, the
Lenders or any of their respective agents, sell, lease, assign or
otherwise dispose of all or any part of such Collateral, at such place or
places as the Administrative Agent deems best, and for cash or for credit
or for future delivery (without thereby assuming any credit risk), at
public or private sale, without demand of performance or notice of
intention to effect any such disposition or of the time or place thereof
(except such notice as is required above or by applicable statute and
cannot be waived), and the Administrative Agent or any Lender or anyone
else may be the purchaser, lessee, assignee or recipient of any or all of
the Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of the Pledgor,
any such demand, notice and right or equity being hereby expressly waived
and released. The Administrative Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from
time to time by announcement at the time and place fixed for the sale, and
such sale may be made at any time or place to which the sale may be so
adjourned.
The proceeds of each collection, sale or other disposition under this Section
4.05 shall be applied in accordance with Section 4.09 hereof.
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The Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Administrative Agent may be compelled, with respect to any
sale of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges that any such private sales may be at prices and on terms
less favorable to the Administrative Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Administrative Agent shall have no
obligation to engage in public sales and no obligation to delay the sale of any
Collateral for the period of time necessary to permit the respective issuer
thereof to register it for public sale.
4.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 4.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Pledgor shall remain liable for any
deficiency.
4.07 Removals, Etc. Without at least 15 days' prior written notice
(or such shorter notice as to which the Administrative Agent may agree) to the
Administrative Agent, the Pledgor shall not (i) maintain any of its books and
records with respect to the Collateral at any office or maintain its principal
place of business at any place other than at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or (ii) change its name, or the name under which it does
business, from the name shown on the signature pages hereto.
4.08 Private Sale. The Administrative Agent and the Lenders shall
incur no liability as a result of the sale of the Collateral, or any part
thereof, at any private sale pursuant to Section 4.05 hereof conducted in a
commercially reasonable manner. The Pledgor hereby waives any claims against the
Administrative Agent or any Lender arising by reason of the fact that the price
at which the Collateral may have been sold at such a private sale was less than
the price that might have been obtained at a public sale or was less than the
aggregate amount of the Secured Obligations, even if the Administrative Agent
accepts the first offer received and does not offer the Collateral to more than
one offeree.
4.09 Application of Proceeds. Except as otherwise herein expressly
provided, the proceeds of any collection, sale or other realization of all or
any part of the Collateral pursuant hereto, and any other cash at the time held
by the Administrative Agent under this Section 4, shall be applied by the
Administrative Agent:
First, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Administrative
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Agent and the fees and expenses of its agents and counsel, and all
expenses incurred and advances made by the Administrative Agent in
connection therewith;
Next, to the payment in full of the Secured Obligations, in each
case equally and ratably in accordance with the respective amounts thereof
then due and owing or as the Lenders holding the same may otherwise agree;
and
Finally, to the payment to the Pledgor, or its successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining.
As used in this Section 4, "proceeds" of Collateral shall mean cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Pledgor or any issuer of or obligor on
any of the Collateral.
4.10 Attorney-in-Fact. Without limiting any rights or powers granted
by this Agreement to the Administrative Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the Administrative Agent is hereby appointed the
attorney-in-fact of the Pledgor for the purpose of carrying out the provisions
of this Section 4 and taking any action and executing any instruments that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, so long as the
Administrative Agent shall be entitled under this Section 4 to make collections
in respect of the Collateral, the Administrative Agent shall have the right and
power to receive, endorse and collect all checks made payable to the order of
the Pledgor representing any dividend, payment or other distribution in respect
of the Collateral or any part thereof and to give full discharge for the same.
4.11 Perfection. Prior to or concurrently with the execution and
delivery of this Agreement, the Pledgor shall deliver to the Administrative
Agent all certificates identified in Section 3(a) hereof, accompanied by undated
stock powers duly executed in blank to the extent that any of such certificates
have not previously been delivered to the Administrative Agent.
4.12 Termination. When all Secured Obligations shall have been paid
in full and the Commitments of the Lenders under the Credit Agreement and all
Letter of Credit Liabilities shall have expired or been terminated, this
Agreement shall terminate, and the Administrative Agent shall forthwith cause to
be assigned, transferred and delivered, against receipt but without any
recourse, warranty or representation whatsoever, any remaining Collateral and
money received in respect thereof, to or on the order of the Pledgor.
4.13 Expenses. The Pledgor agrees to pay to the Administrative Agent
all out-of-pocket expenses (including reasonable expenses for legal services of
every kind) of, or incident
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to, the enforcement of any of the provisions of this Section 4, or performance
by the Administrative Agent of any obligations of the Pledgor in respect of the
Collateral which the Pledgor has failed or refused to perform, or any actual or
attempted sale, or any exchange, enforcement, collection, compromise or
settlement in respect of any of the Collateral, and for the care of the
Collateral and defending or asserting rights and claims of the Administrative
Agent in respect thereof, by litigation or otherwise, and all such expenses
shall be Secured Obligations to the Administrative Agent secured under Section 3
hereof.
4.14 Further Assurances. The Pledgor agrees that, from time to time
upon the written request of the Administrative Agent, the Pledgor will execute
and deliver such further documents and do such other acts and things as the
Administrative Agent may reasonably request in order fully to effect the
purposes of this Agreement.
Section 5. Miscellaneous.
5.01 No Waiver. No failure on the part of the Administrative Agent
or any Lender to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Administrative
Agent or any Lender of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
5.02 Notices. All notices, requests, consents and demands hereunder
shall be in writing and telecopied or delivered to the intended recipient at its
"Address for Notices" specified pursuant to Section 12.02 of the Credit
Agreement and shall be deemed to have been given at the times specified in said
Section 12.02.
5.03 Amendments, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the Pledgor
and the Administrative Agent (with the consent of the Lenders as specified in
Section 11.09 of the Credit Agreement).
5.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of the
Pledgor, the Administrative Agent, the Lenders and each holder of any of the
Secured Obligations (provided, however, that the Pledgor shall not assign or
transfer its rights hereunder without the prior written consent of the
Administrative Agent).
5.06 Captions. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
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5.07 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
5.08 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
5.09 Agents and Attorneys-in-Fact. The Administrative Agent may
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
5.10 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Administrative
Agent and the Lenders in order to carry out the intentions of the parties hereto
as nearly as may be possible and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amended and Restated Pledge Agreement to be duly executed and delivered as of
the day and year first above written.
PLEDGOR
UNITED STATIONERS INC.
By _________________________
Title:
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By _________________________
Title:
Pledge Agreement
ANNEX 1
Pledged Stock
[See Section 2(b) and (c)]
Pledge Agreement
EXHIBIT D
This Indenture was prepared by
and when recorded mail to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
______________________________________________________________
Space above this line for recorder's use
INDENTURE OF MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
KNOW ALL PERSONS BY THESE PRESENTS:
THIS INDENTURE OF MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT
AND FIXTURE FILING (this "Indenture") is made as of _____________, 20__ by
[____________________________], a corporation duly organized and validly
existing under the laws of the State of [_________] and having an office at ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the "Company"), in favor of
THE CHASE MANHATTAN BANK, a New York banking corporation having its principal
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as administrative agent for
the banks referred to below (in such capacity, together with its successors in
such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, [the Company] [United Stationers Supply Co. (the
"Borrower")], United Stationers, Inc., certain lenders (collectively, together
with their successors and assigns, the "Lenders") and the Administrative Agent
are parties to a Third Amended and Restated Credit Agreement dated as of June
29, 2000 (as modified, amended, restated and supplemented and in effect from
time to time, the "Credit Agreement"; terms defined in the Credit Agreement
unless otherwise defined herein being used herein as defined therein);
WHEREAS, the Credit Agreement provides for, inter alia, extensions
of credit by the Lenders to the [Company] [Borrower] by the making of term loans
and revolving credit loans (including the issuance of letters of credit)
(collectively, the "Loans") in an aggregate principal amount on the date hereof
not exceeding $453,000,000;
[WHEREAS, the Company has entered into that certain Amended and
Restated Subsidiary Guarantee and Security Agreement, dated as of June 29, 2000,
among the Company, the other Subsidiary Guarantors party thereto and the
Administrative Agent (the "Guarantee
Form of Mortgage
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Agreement"), pursuant to which the Company has granted a security interest in
the Collateral (as defined therein) as security for, and has unconditionally
guaranteed the prompt payment in full when due (whether as stated maturity, by
acceleration or otherwise) of (x) the principal of and interest on the Loans
made by the Lenders to the Borrower and all other amounts from time to time
owing to the Lenders or the Administrative Agent by the Borrower under the
Credit Agreement and by the Borrower under any of the other Loan Instruments (as
hereinafter defined), (y) all obligations of the Borrower to any Lender (or any
Affiliate thereof) in respect of any Hedging Agreement or in respect of any cash
management services and (z) all Reimbursement Obligations and interest thereon,
in each case strictly in accordance with the terms thereof (such obligations
being herein collectively called the "Guaranteed Obligations");]
WHEREAS, the Loans are to be evidenced by, and repayable with
interest thereon in accordance with, the terms of the Credit Agreement;
WHEREAS, it is a condition to the obligation of the Lenders to
extend credit to the [Company] [Borrower] pursuant to the Credit Agreement that
the Company execute and deliver this Indenture;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and FOR THE PURPOSE OF SECURING the following
(collectively, the "Obligations"):
(i) [the payment of all indebtedness evidenced by the Credit
Agreement (and any notes issued in connection therewith) and any and all
reborrowings, future advances and readvances under the Credit Agreement
(and any such notes) and modifications, extensions, substitutions,
exchanges and renewals of the Credit Agreement (and any such notes) (each
of which reborrowings, future advances, readvances, modifications,
extensions, substitutions, exchanges and renewals shall enjoy the same
priority as the initial advances evidenced by the Credit Agreement (and
any such notes))] [the obligations of the Company to the Lenders or the
Administrative Agent constituting the Guaranteed Obligations];
(ii) the performance and payment of the covenants, agreements and
obligations hereinafter contained and all other monies secured hereby,
including, without limitation, any and all sums expended by the
Administrative Agent pursuant to Section 1.11 hereof, together with
interest thereon; and
(iii) [the payment of all other indebtedness of the Company to the
Lenders and the Administrative Agent under the Credit Agreement and the
Credit Instruments] [the payment of all other amounts from time to time
owing to the Lenders or the Administrative Agent under the Guarantee
Agreement],
Form of Mortgage
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the Company hereby irrevocably grants, bargains, sells, releases, conveys,
warrants, assigns, transfers, mortgages, pledges, sets over and confirms unto
the Administrative Agent, under and subject to the terms and conditions
hereinafter set forth, all of the following described property:
ALL OF the Company's right, title and interest in and to the lands
and premises (collectively, the "[Fee] Properties") more particularly described
on Exhibit A hereto;
[ALL OF the Company's right, title and interest in and to the
respective leases and lease agreements (collectively, the "Leases") more
particularly described on Exhibit B hereto affecting the respective lands and
premises (collectively, the "Leasehold Properties" and together with the Fee
Properties, the "Properties");]
TOGETHER WITH all interests, estates or other claims, both in law
and in equity, that the Company now has or may hereafter acquire in (a) the
Properties, (b) all easements, servitudes, rights-of-way and rights used in
connection therewith or as a means of access thereto and (c) all tenements,
hereditaments and appurtenances in any manner belonging, relating or
appertaining thereto (all of the foregoing interests, estates and other claims,
collectively, "Easements and Rights of Way");
TOGETHER WITH all estate, right, title and interest of the Company,
now owned or hereafter acquired, in and to any land lying within the
right-of-way of any streets, open or proposed, adjoining the Properties, and any
and all sidewalks, alleys and strips and gores of land adjacent to or used in
connection therewith (all of the foregoing estate, right, title and interest,
collectively, "Adjacent Rights");
TOGETHER WITH all estate, right, title and interest of the Company,
now owned or hereafter acquired, in and to any and all buildings and other
improvements now or hereafter located on the Properties and all building
materials, building equipment and fixtures of every kind and nature located on
the Properties or attached to, contained in or used in any such buildings and
other improvements, and all appurtenances and additions thereto and betterments,
substitutions and replacements thereof (all of the foregoing estate, right,
title and interest, collectively, "Improvements");
TOGETHER WITH all estate, right, title and interest of the Company
in and to all such tangible property owned by the Company (including all
machinery, apparatus, equipment, fittings and articles of personal property) and
now or hereafter located on or at or attached to the Properties that an interest
in such tangible property arises under applicable real estate law, and any and
all products and accessions to any such property which may exist at any time
(all of the foregoing estate, right, title and interest, and products and
accessions, collectively, "Fixtures");
TOGETHER WITH all estate, right, title and interest of the Company
in and to all rights, royalties and profits in connection with all minerals, oil
and gas and other hydrocarbon substances on or in the Properties, development
rights or credits, air rights, water, water rights
Form of Mortgage
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(whether riparian, appropriative, or otherwise and whether or not appurtenant)
and water stock (all of the foregoing estate, right, title and interest,
collectively, "Mineral and Related Rights");
TOGETHER WITH all rents, revenues, proceeds, issues, profits,
royalties, income and other benefits derived from the Properties, the
Improvements and the Fixtures, subject to the right, power and authority
hereinafter given to the Company to collect and apply the same (all of the
foregoing rents, revenues, proceeds, issues, profits, royalties, income and
other benefits, collectively, "Rents and Royalties");
TOGETHER WITH all estate, right, title and interest and other claim
or demand that the Company now has or may hereafter acquire with respect to any
damage to the Properties, the Improvements or the Fixtures and any and all
proceeds of insurance in effect with respect to the Improvements or the
Fixtures, and any and all awards made for the taking by eminent domain, or by
any proceeding or purchase in lieu thereof, of the Properties, the Improvements
or the Fixtures, including without limitation any awards resulting from a change
of grade of streets or as the result of any other damage to the Properties, the
Improvements or the Fixtures for which compensation shall be given by any
governmental authority subject to the right, power and authority hereinafter
given to the Company to collect and apply the same (all of the foregoing estate,
right, title and interest and other claims or demand, and any such proceeds or
awards, collectively, "Damage Rights");
TOGETHER WITH all the estate, right, title, interest and other claim
of the Company with respect to any parking facilities located other than on the
Properties and used or intended to be used in connection with the operation,
ownership or use of the Properties, any and all replacements and substitutions
for the same, and any other parking rights, easements, servitudes, covenants and
other interests in parking facilities acquired by the Company for the use of
tenants or occupants of the Improvements (all of the foregoing estate, right,
title, interest and other claim, collectively, "Parking Rights");
TOGETHER WITH all estate, right, title and interest of the Company
in respect of any and all air rights, development rights, zoning rights or other
similar rights or interests which benefit or are appurtenant to the Properties
or the Improvements (all of the foregoing estate, right, title and interest,
collectively, "Air and Development Rights"); and
All of the foregoing Easements and Rights of Way, Adjacent Rights,
Improvements, Fixtures, Minerals and Related Rights, Rents and Royalties, Damage
Rights, Parking Rights and Air and Development Rights being sometimes
hereinafter referred to collectively as the "Ancillary Rights and Properties"
and the Properties and Ancillary Rights and Properties being sometimes
hereinafter referred to collectively as the "Mortgaged Property",
TO HAVE AND TO HOLD the Mortgaged Property with all privileges and
appurtenances thereunto belonging, to the Administrative Agent and its
successors and assigns, forever, in accordance with the terms and conditions and
for the uses hereinafter set forth.
Form of Mortgage
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PROVIDED ALWAYS, that if the principal of and interest on the Loans
and all of the other Obligations shall be paid in full, and the Company shall
abide by and comply with each and every covenant contained herein and in the
[Credit] [Guarantee] Agreement, and the Commitments shall have terminated then
this Indenture and the lien and estate hereby granted shall cease, terminate and
be void.
This Indenture, the Credit Agreement, any notes and any other
instrument given to evidence or further secure the payment and performance of
any Obligation are sometimes hereinafter collectively referred to as the "Loan
Instruments".
TO PROTECT THE SECURITY OF THIS INDENTURE, THE COMPANY HEREBY
COVENANTS AND AGREES AS FOLLOWS:
ARTICLE I
Particular Covenants and Agreements of the Company
Section 1.01. Payment of Secured Obligations; Title; etc. [The
Company shall pay when due the principal of, and the interest on, the
indebtedness evidenced by the Credit Agreement and all other Obligations as
provided in the Loan Instruments, and the principal of, and the interest on, any
future advances secured by this Indenture.] [The Company shall pay when due all
obligations in respect of its guarantee under the Guarantee Agreement and all
other obligations of the Company to the Lenders under the Loan Instruments.]
The Company represents and warrants that it has good and marketable
fee simple title in and to the [Fee] Properties identified on Exhibit A hereto,
and the related Ancillary Rights and Properties, in each case subject to no
mortgage, deed of trust, lien, pledge, charge, security interest or other
encumbrance or adverse claim of any nature, except (i) those listed as
exceptions to title in the title policy insuring the lien or estate created by
this Indenture and (ii) those permitted by the Credit Agreement.
[The Company represents and warrants that (a) each Lease is in full
force and effect and there are no defaults thereunder and no event has occurred
and is continuing which with notice or lapse of time or both will result in such
a default, (b) the Company is lawfully seized and possessed of a valid and
subsisting leasehold estate in and to the Leasehold Properties identified in
Exhibit B hereto and (c) subject to the Leases, it has good marketable title in
fee simple to the related Ancillary Rights and Properties with respect to each
Lease, in each case subject to no mortgage, deed of trust, lien, pledge, charge,
security interest or other encumbrance or adverse claim of any nature, except
those provided in the Lease or permitted by the Credit Agreement.]
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The Company represents and warrants that it has the full power and
lawful authority to grant, bargain, sell, release, convey, warrant, assign,
transfer, mortgage, pledge, set over and confirm unto the Administrative Agent
the Mortgaged Property and warrants that it will forever defend the title to the
Mortgaged Property and the validity and priority of the lien or estate hereof
against the claims and demands of all Persons whomsoever.
Section 1.02. Further Assurances; Filing; Re-Filing; etc.
(a) The Company shall execute, acknowledge and deliver, from time to
time, such further instruments as the Administrative Agent may require to
accomplish the purposes of this Indenture.
(b) The Company, immediately upon the execution and delivery of this
Indenture, and thereafter from time to time, shall cause this Indenture, any
security agreement, mortgage or deed of trust supplemental hereto and each
instrument of further assurance to be filed, registered or recorded and refiled,
re-registered or re-recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and perfect
the lien or estate of this Indenture upon the Mortgaged Property.
(c) The Company shall pay all filing, registration and recording
fees, all refiling, re-registration and re-recording fees, and all expenses
incident to the execution, filing, recording and acknowledgment of this
Indenture, any security agreement, mortgage or deed of trust supplemental hereto
and any instrument of further assurance, and all Federal, State, county and
municipal stamp taxes and other taxes, duties, imposts, assessments and charges
arising out of or in connection with the execution, delivery, filing and
recording of this Indenture, any security agreement, mortgage or deed of trust
supplemental hereto or any instruments of further assurance.
Section 1.03. Liens. Except as otherwise provided in Section 9.06 of
the Credit Agreement, but without limiting the obligations of the Company under
Section 1.05 of this Indenture (subject to its right to contest certain liens
and to withhold payment thereof as expressly provided in said Section 1.05), the
Company shall not create or suffer to be created any mortgage, deed of trust,
lien, security interest, charge or encumbrance upon the Mortgaged Property prior
to, on a parity with, or subordinate to the lien of this Indenture. The Company
shall pay and promptly discharge at the Company's cost and expense, any such
mortgages, deeds of trust, liens, security interests, charges or encumbrances
upon the Mortgaged Property or any portion thereof or interest therein.
Section 1.04. Insurance.
(a) The Company shall purchase and maintain in full force and effect
policies of insurance in such form and amounts, covering such risks, and issued
by such companies, in each case in the manner and to the extent required
pursuant to Section 9.04 of the Credit Agreement.
Form of Mortgage
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(b) After the occurrence of any fire or other casualty to the
Mortgaged Property or any part thereof resulting in a loss in excess of
$500,000, the Company shall give prompt notice thereof to the Administrative
Agent.
(c) After the occurrence of any fire or other casualty to the
Mortgaged Property or any part thereof, provided that no Default (as defined in
Section 4.01 hereof) has occurred and is continuing, the Company may, at its
option, to be exercised by delivery of notice to the Administrative Agent within
four months of the damage or destruction caused by such fire or other casualty,
elect to either apply any insurance proceeds received as a result of such fire
or other casualty: (i) to the restoration and repair of that part of the
Mortgaged Property damaged by such fire or casualty (the "Damaged Property"); or
(ii) to the prepayment of all or any part of the indebtedness secured hereby. If
a Default has occurred and is continuing, or if the Company fails to make such
an election within four months from the date of any such damage or destruction,
such insurance proceeds shall automatically be applied to the prepayment as
aforesaid of the indebtedness secured hereby.
If the Company elects to so restore and repair the Damaged Property,
any insurance proceeds in excess of $500,000 shall be held by the Administrative
Agent to be applied to the restoration and repair of the Damaged Property and
advanced to the Company in periodic installments upon compliance by the Company
with such reasonable conditions as may be imposed by the Administrative Agent,
including, but not limited to, reasonable retentions and lien releases.
Interest, if any, actually earned on any insurance proceeds held by the
Administrative Agent shall be credited to such insurance proceeds, for the
benefit of the Company.
Notwithstanding anything herein or at law or in equity to the
contrary, none of the insurance proceeds paid to the Administrative Agent as
herein provided shall be deemed trust funds, and the Administrative Agent shall
be entitled to advance all such proceeds as provided in this Section 1.04(c).
The Company expressly assumes all risk of loss, including a decrease in the use,
enjoyment or value of the Mortgaged Property from any fire or other casualty
whatsoever, whether or not insurable or insured against.
The Administrative Agent shall have no obligation to release any of
the insurance proceeds to the Company for restoration or repair of the Damaged
Property if a Default has occurred and is continuing. If a Default has occurred
and is continuing, the Administrative Agent may, in its sole discretion, apply
any insurance proceeds received as a result of such fire or other casualty
either (i) to the payment of the Obligations as provided in Section 4.03(a)
hereof or (ii) to the restoration or repair of the Damaged Property. If the
Administrative Agent has required application of such proceeds to such
restoration or repair, and such Default has been remedied, then the
Administrative Agent will advance to the Company in accordance with the
foregoing provisions of this Section 1.04(c), the insurance proceeds, less such
amounts that may have been expended by the Administrative Agent to effectuate
such cure. If a Default has
Form of Mortgage
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occurred and is continuing, all insurance proceeds remaining after the payment
for restoration and repair of the Damaged Property pursuant to this Section
1.04(c) may, at the option of the Administrative Agent, be applied to the
payment of all or any part of the Obligations.
(d) If a Default has occurred and is continuing, the Administrative
Agent shall be entitled at its option to participate in any compromise,
adjustment or settlement in connection with any claims for loss, damage or
destruction under any policy or policies of insurance, in excess of $500,000,
and the Company shall within five Business Days after request therefor reimburse
the Administrative Agent for all out-of-pocket expenses (including reasonable
attorneys' fees) incurred by the Administrative Agent in connection with such
participation. Whether or not a Default has occurred and is continuing, the
Company shall not make any compromise, adjustment or settlement in connection
with any such claim in excess of $500,000 without the approval of the
Administrative Agent, which approval shall not be unreasonably withheld or
delayed.
(e) In the event of foreclosure of the lien of this Indenture or
other transfer of title or assignment of the Mortgaged Property in
extinguishment, in whole or in part, of the Obligations, all right, title and
interest of the Company in and to all policies of casualty insurance covering
all or any part of the Mortgaged Property shall inure to the benefit of and pass
to the successors in interest to the Company or the purchaser or grantee of the
Mortgaged Property or any part thereof.
Section 1.05. Impositions.
(a) The Company shall pay or cause to be paid, before any fine,
penalty, interest or cost attaches thereto, all taxes, assessments, water and
sewer rates, utility charges and all other governmental or nongovernmental
charges or levies now or hereafter assessed or levied against any part of the
Mortgaged Property (including, without limitation, nongovernmental levies or
assessments such as maintenance charges, owner association dues or charges or
fees, levies or charges resulting from covenants, conditions and restrictions
affecting the Mortgaged Property) or upon the lien or estate of the
Administrative Agent therein (collectively, "Impositions"), as well as all
claims for labor, materials or supplies that, if unpaid, might by law become a
prior lien thereon, and within ten days after request by the Administrative
Agent will exhibit receipts showing payment of any of the foregoing; provided,
however, that if by law any such Imposition may be paid in installments (whether
or not interest shall accrue on the unpaid balance thereof), the Company may pay
the same in installments (together with accrued interest on the unpaid balance
thereof) as the same respectively become due, before any fine, penalty or cost
attaches thereto.
(b) Notwithstanding anything to the contrary contained in this
Indenture, the Company at its expense may contest by appropriate legal,
administrative or other proceedings conducted in good faith and with due
diligence, the amount or validity or application, in whole or in part, of any
Imposition or lien therefor or any claims of mechanics, materialmen, suppliers
or
Form of Mortgage
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vendors or lien thereof, and may withhold payment of the same pending such
proceedings if permitted by law, provided, that (i) if the amount being
contested exceeds $500,000, the Company shall give the Administrative Agent
prior notice of such intention to contest and/or withhold payment, (ii) in the
case of any Impositions or lien therefor or any claims of mechanics,
materialmen, suppliers or vendors or lien thereof, such proceedings shall
suspend the collection thereof from the Mortgaged Property or the Company shall
have posted such bonds or taken such other action as may be necessary in order
to effect such suspension, (iii) neither the Mortgaged Property nor any part
thereof or interest therein will be sold, forfeited or lost if the Company pays
the amount or satisfies the condition being contested, and the Company would
have the opportunity to do so in the event of the Company's failure to prevail
in the contest, (iv) neither the Administrative Agent, nor the Lenders shall, by
virtue of such permitted contest, be exposed to any risk of any criminal
liability or any civil liability for which the Company has not furnished
additional security as provided in clause (v) below, and neither the Mortgaged
Property nor any interest therein would be subject to the imposition of any lien
for which the Company has not furnished additional security as provided in
clause (v) below, as a result of the failure to comply with such law or of such
proceeding and (v) if a Default shall have occurred and is continuing, the
Company shall have furnished to the Administrative Agent additional security in
respect of the claim being contested or the loss or damage which may result from
the Company's failure to prevail in such contest in such amount as may be
reasonably requested by the Administrative Agent.
Section 1.06. Maintenance of the Improvements and Fixtures. Subject
to Section 9.05 of the Credit Agreement, the Company (i) shall not permit the
Improvements or Fixtures to be removed and (ii) shall maintain the Mortgaged
Property in good repair, working order and condition, except for reasonable wear
and use and to the extent the Administrative Agent shall have control of or over
any insurance proceeds and elect not to release such proceeds for repair or
restoration of the Mortgaged Property. Subject to the provisions of Sections
1.04 and 1.12 hereof (including, without limitation, the Company's rights to
elect not to restore or repair the Properties), the Company shall not commit,
permit or suffer any waste or deterioration of the Mortgaged Property which, in
the aggregate, could reasonably be expected to have a material adverse effect on
the value of the Properties.
Section 1.07. Compliance With Laws.
(a) The Company represents and warrants that, except as to matters
covered by Section 8.13 of the Credit Agreement (as to which the representations
and warranties set forth in the Credit Agreement shall apply) and except as
otherwise previously disclosed in writing to the Administrative Agent, the
Company and its operations at the Properties currently comply with all
applicable laws, ordinances, orders, rules and regulations, including
Environmental Laws (collectively "laws") of all Federal, State, and local
governments and of the appropriate departments, commissions, boards and offices
thereof, and the orders, rules and regulations of the American Insurance
Association or any other body now or hereafter constituted exercising
Form of Mortgage
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similar functions, which at any time are applicable to the Mortgaged Property,
except to the extent that failure to comply could not reasonably be expected to
have a Material Adverse Effect.
(b) The Company shall notify the Administrative Agent promptly of
any notice or order related to the Properties which the Company receives from
any agency or instrumentality of the Federal, or any State or local, government
with respect to the Company's failure to comply with any laws or regulations
referred to in clause (a) above which failure could reasonably be expected to
have a Material Adverse Effect, promptly take any and all actions necessary to
bring its operations at the Properties into compliance with such laws or
regulations and shall materially comply with the requirements of such laws or
regulations which at any time are applicable to its operations at the
Properties; provided, however, that the Company at its expense may, with
simultaneous notice to the Administrative Agent, contest by appropriate legal,
administrative or other proceedings conducted in good faith and with due
diligence, the validity or application, in whole or in part, of any such laws or
regulations so long as (i) neither the Properties nor any part thereof or
interest therein will be sold, forfeited or lost if the Company pays the amount
or satisfies the condition being contested in the event of the Company's failure
to prevail in the contest, (ii) neither the Administrative Agent nor any of the
Lenders would, by virtue of such permitted contest, be in any danger of any
criminal liability or any civil liability for which the Company has not
furnished additional security as provided in clause (iii) below, and none of the
Properties nor any interest therein would be subject to the imposition of any
lien for which the Company has not furnished additional security as provided in
clause (iii) below as a result of the failure to comply with such law or of such
proceeding and (iii) if a Default has occurred and is continuing, the Company
shall have furnished to the Administrative Agent additional security in respect
of the claim being contested or the loss or damage which may result from the
Company's failure to prevail in such contest in such amount as may be reasonably
requested by the Administrative Agent.
(c) Subject to the Company's right to contest, if the Company fails
to cure a failure to comply with any laws or regulations referred to in clause
(a) above within ten days of written notice from the Administrative Agent to do
so, the Administrative Agent, at its election and in its sole discretion may
(but shall not be obligated to) cure any failure on the part of the Company to
comply with any laws or regulations referred to in clause (a) above; provided,
however, that the Administrative Agent shall not be required to give the Company
such notice if either this Indenture is being enforced pursuant to Section
4.02(a) hereof or an Event of Default shall have occurred under Section 10(e),
(f) or (g) of the Credit Agreement. Any partial exercise by the Administrative
Agent of the remedies hereinafter set forth, or any partial undertaking on the
part of the Administrative Agent to cure the Company's failure to comply with
such laws or regulations, shall not obligate the Administrative Agent to
complete the actions taken or require the Administrative Agent to expend further
sums to cure the Company's noncompliance; nor shall the exercise of any such
remedies operate to place upon the Administrative Agent any responsibility for
the operation, control, care, management or repair of the Properties or make the
Administrative Agent the "operator" of the Properties within the meaning of any
such laws. Any amount paid or reasonable out-of-pocket costs incurred by the
Administrative Agent as a result
Form of Mortgage
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of the exercise by the Administrative Agent of any of the rights hereinabove set
forth, together with interest thereon at the Post-Default Rate under and as
defined in the Credit Agreement, shall be immediately due and payable by the
Company to the Administrative Agent, and until paid shall be added to and become
a part of the Obligations secured hereby; and the Administrative Agent, by
making any such payment or incurring any such costs, shall be subrogated to any
rights of the Company to seek reimbursement from any third parties, including,
without limitation, a predecessor-in-interest to the Company's title who may be
a "responsible party" or otherwise liable under the aforementioned laws or
regulations.
(d) If after the occurrence and during the continuance of any
Default the Administrative Agent desires that an environmental survey and risk
assessment with respect to any of the Properties be prepared, the Company agrees
to supply such a survey and risk assessment by an independent engineering firm
selected by the Company and reasonably satisfactory to the Administrative Agent,
in form and detail satisfactory to the Administrative Agent (including test
borings of the ground and chemical analyses of air, water and waste discharges),
estimating current liabilities and assessing potential sources of future
liabilities of the Company or any other owner or operator of the Properties
under any Environmental Laws.
Section 1.08. Limitations of Use. The Company shall not initiate,
join in or consent to any change in any private restrictive covenant, zoning
ordinance or other public or private restrictions limiting or defining the uses
that may be made of any of the Properties and the Improvements or any part
thereof that would have a material adverse effect on the value of any of the
Properties or the Improvements. The Company shall comply with the provisions of
all leases, licenses, agreements and private covenants, conditions and
restrictions that at any time are applicable to the Mortgaged Property, except
to the extent failure to comply could not reasonably be expected to have a
material adverse effect on the value of the Properties or the Improvements.
Section 1.09. Inspection of the Properties. The Company shall keep
adequate records and books of account in accordance with the requirements of the
Credit Agreement and shall permit the Administrative Agent and its authorized
representatives to enter and inspect the Properties, to examine the records and
books of account of the Company with respect thereto and make copies or extracts
thereof, all in accordance with the Credit Agreement.
Section 1.10. Estoppel Certificates. The Company, within ten days
upon request in person or within 15 days upon request by mail, shall furnish the
Administrative Agent a written statement, duly acknowledged, of the amount of
the Obligations then secured by this Indenture and whether to the Company's
knowledge, any offsets or defenses exist against any such Obligations.
Section 1.11. Actions to Protect Mortgaged Property. If the Company
shall fail to [(a) perform and observe any of the terms, covenants or conditions
required to be performed or observed by it under any of the Leases,] (b) effect
the insurance required by Section 1.04
Form of Mortgage
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hereof, (c) make the payments required by Section 1.05 hereof or (d) perform or
observe any of its other covenants or agreements hereunder, the Administrative
Agent may, without obligation to do so, and after ten days prior written notice
to the Company (except in an emergency) effect or pay the same. All sums,
including reasonable attorneys' fees, so expended or expended to sustain the
lien or estate of this Indenture or its priority, or to protect or enforce any
of the rights hereunder, or to recover any of the Obligations, shall be a lien
on the Mortgaged Property, shall be deemed to be added to the Obligations
secured hereby, and shall be paid by the Company within ten days after demand
therefor, together with interest thereon at the Post-Default Rate under and as
defined in the Credit Agreement. In any action or proceeding to foreclose this
Indenture or to recover or collect the Obligations secured hereby, the
provisions of law respecting the recovery of costs, disbursements and allowances
shall prevail unaffected by this covenant.
Section 1.12. Condemnation.
(a) Should the Mortgaged Property or any part thereof with a value
in excess of $500,000 be taken or damaged by reason of any public improvement or
condemnation proceeding, or in any other manner (a "Condemnation"), or should
the Company receive any written notice or other information regarding such
proceeding, the Company shall give prompt notice thereof to the Administrative
Agent.
(b) The Administrative Agent shall be entitled to all compensation,
awards and other payments or relief therefor, and shall be entitled at its
option to commence, appear in and prosecute in its own name any compromise or
settlement in connection with such Condemnation involving an amount in
controversy in excess of $500,000. All such compensation, awards, damages,
rights of action and proceeds in excess of $500,000 awarded to the Company and
all interest thereon, if any (the "Condemnation Proceeds") are hereby assigned
to the Administrative Agent, and the Company shall execute such further
assignments of the Condemnation Proceeds as the Administrative Agent may
require.
(c) Upon the occurrence of a Condemnation, provided that no Default
has occurred and is continuing, the Company may, at its option, to be exercised
by delivery of notice to the Administrative Agent within four months of such
Condemnation, elect to either apply any Condemnation Proceeds: (i) to the
replacement or restoration and repair of that part of the Mortgaged Property
affected by such Condemnation (the "Affected Property"); or (ii) to the
prepayment of all or any part of the indebtedness secured hereby. If a Default
has occurred and is continuing or if the Company fails to make such an election
within four months from the date of any such Condemnation, such Condemnation
Proceeds shall automatically be applied to the prepayment as aforesaid of the
indebtedness secured hereby.
If the Company elects to so replace or restore and repair the
Affected Property, any Condemnation Proceeds shall be held by the Administrative
Agent to be applied to the restoration and repair of the Affected Property and
advanced to the Company in periodic
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installments upon compliance by the Company with such reasonable conditions as
may be imposed by the Administrative Agent including, but not limited to,
reasonable retentions and lien releases. Interest, if any, actually earned on
any Condemnation Proceeds held by the Administrative Agent shall be credited to
such Condemnation Proceeds for the benefit of the Company.
Notwithstanding anything herein or at law or in equity to the
contrary, none of the Condemnation Proceeds paid as herein provided shall be
deemed trust funds and the Administrative Agent shall be entitled to advance all
such proceeds as provided in this Section 1.12(c). The Company expressly assumes
all risk of loss, including a decrease in the use, enjoyment or value of the
Affected Property from any Condemnation whatsoever.
The Administrative Agent shall have no obligation to release any of
the Condemnation Proceeds to the Company for restoration or repair of Affected
Property if a Default has occurred and is continuing. If a Default has occurred
and is continuing, the Administrative Agent may, in its sole discretion, apply
the Condemnation Proceeds either (i) to the payment of the Obligations as
provided in Section 4.03(a) hereof or (ii) to the restoration or repair of the
Affected Property. If the Administrative Agent has required application of
Condemnation Proceeds to such restoration or repair, and such Default has been
remedied, then the Administrative Agent will advance to the Company in
accordance with the foregoing provisions of this Section 1.12(c), the
Condemnation Proceeds, less such amounts that may have been expended by the
Administrative Agent to effectuate such cure. If a Default has occurred and is
continuing, all Condemnation Proceeds remaining after the payment, for
restoration and repair of the Affected Property pursuant to this Section
1.12(c), may, at the option of the Administrative Agent, be applied to payment
of all or any part of the Obligations.
Section 1.13. Insurance and Condemnation Proceeds. Any moneys held
by the Administrative Agent constituting insurance proceeds received by the
Administrative Agent in respect of any loss or damage to, or destruction of, the
Mortgaged Property (or any portion thereof), or constituting Condemnation
Proceeds shall, so long as no Default shall have occurred and be continuing, at
the written request of the Company, be invested or reinvested in such Permitted
Investments as the Company shall from time to time specify. Such Permitted
Investments shall be held by the Administrative Agent pursuant to this Section
1.13; but, upon request of the Company, the Administrative Agent shall sell all
or any designated part of the same and the proceeds of such sale shall be held
by the Administrative Agent subject to the provisions hereof in the same manner
as the cash used by it to purchase the obligations so sold. The Company agrees
to pay the Administrative Agent, on demand, amounts equal to any loss resulting
from any investment or reinvestment pursuant to this Section 1.13, it being
understood that the Administrative Agent shall not be liable or responsible for
any such loss. All amounts from time to time received by the Administrative
Agent in respect of any gains or interest on such obligations or reimbursement
in respect of any loss resulting from any such investment or reinvestment shall
be paid to the Company within ten days of receipt thereof.
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[Section 1.14. Leasehold Interests.
(a) The Company shall (i), except where failure to do so could not
reasonably be expected to have a material adverse effect on the Properties or
the Improvements, promptly perform and observe all of the terms, covenants and
conditions required to be performed and observed by the Company under the Leases
and do all things necessary to preserve and to keep unimpaired its rights
thereunder, (ii) promptly notify the Administrative Agent of any material
default by the Company under any Lease in the performance of any of the terms,
covenants or conditions on the part of the Company to be performed or observed
thereunder or of the giving of any notice by the lessor to the Company of any
default under any Lease or of such lessor's intention to exercise any remedy
reserved to the lessor thereunder and (iii) promptly cause a copy of each such
notice given by the lessor under any Lease to the Company to be delivered to the
Administrative Agent.
(b) If the Company shall fail promptly to perform or observe any of
the terms, covenants or conditions required to be performed by it under any
Lease, including, without limitation, payment of all rent and other charges due
thereunder, the Administrative Agent may, without obligation to do so, after ten
days prior written notice to the Company, take such action as is appropriate to
cause such terms, covenants or conditions to be promptly performed or observed
on behalf of the Company but no such action by the Administrative Agent shall
release the Company from any of its obligations under this Indenture. Upon
receipt by the Administrative Agent from the lessor under any Lease of any
notice of default by the Company thereunder, the Administrative Agent may rely
thereon and take any action as aforesaid to cure such default even though the
existence of such default or the nature thereof be questioned or denied by the
Company or by any party on behalf of the Company; provided, however, that the
Administrative Agent must first give the Company ten days prior written notice
of its intent to cure such default so long as the Administrative Agent is not
prevented from giving such notice by order, judgment or decree of court.
(c) Subject to the Company's rights pursuant to Section 5.12 hereof,
the Company shall not surrender its leasehold estate and interests under any
Lease, nor terminate or cancel any Lease, and the Company shall not modify,
change, supplement, alter or amend any Lease orally or in writing without the
consent of the Administrative Agent, which consent shall not be unreasonably
withheld or delayed and any attempt on the part of the Company to so modify,
change, supplement, alter or amend without the consent of the Administrative
Agent shall be null and void.
(d) No release or forbearance of any of the Company's obligations
under any Lease, pursuant to the terms thereof or otherwise, shall release the
Company from any of its obligations under this Indenture.
(e) Neither the fee title to the property demised by any Lease nor
the leasehold estate created by any Lease shall merge, but shall always remain
separate and distinct,
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notwithstanding the union of the aforesaid estates either in the lessor or the
Company under any Lease or in a third party by purchase or otherwise, unless the
Administrative Agent shall, at its option, execute and record a document
evidencing its intent to merge the estates. If the Company acquires the fee
title or any other estate, title or interest in any Leasehold Property covered
by any Lease, this Indenture shall attach to, be a lien upon and spread to the
fee title or such other estate so acquired, and such fee title or other estate
shall, without further assignment, mortgage or conveyance, become and be subject
to the lien of this Indenture. The Company shall notify the Administrative Agent
of any such acquisition by the Company and, on written request by the
Administrative Agent, shall cause to be executed and recorded all such other and
further assurances or other instruments in writing as may in the opinion of the
Administrative Agent be required to carry out the intent and meaning hereof.
(f) Unless enforcement would, in the Company's reasonable business
judgment, be inadvisable, the Company shall enforce the obligations of the
lessor under the Leases to the end that the Company may enjoy all of the
material rights granted to it under the Leases, and shall promptly notify the
Administrative Agent of any material default by the lessor under any Lease, in
the performance or observance of any of the terms, covenants and conditions on
the part of such lessor to be performed or observed under any Lease and the
Company shall promptly advise the Administrative Agent of the occurrence of any
material event of default under any Lease.
(g) The Company shall use its best efforts to obtain from the lessor
under each Lease and deliver to the Administrative Agent, within 20 days after
written demand from the Administrative Agent, a statement in writing certifying
that such Lease is unmodified and in full force and effect and the dates to
which the rent and other charges, if any, have been paid in advance, and stating
whether or not, to the best knowledge of the signer of such certificate, the
Company is in default in the performance of any covenant, agreement or condition
contained in such Lease, and, if so, specifying each such default of which the
signer may have knowledge.
(h) Unless the exercise of any option, now existing or hereafter
created, to renew or extend the term of any Lease would, in the Company's
reasonable business judgment, be inadvisable, the Company shall, at least two
months prior to the last day upon which the Company may validly exercise such
option, (i) exercise such option in such manner as will cause the term of such
Lease to be effectively renewed or extended for the period provided by such
option and (ii) give prompt notice thereof to the Administrative Agent, it being
understood that if the Company fails to do so, the Administrative Agent shall
have, and is hereby granted, the irrevocable right to exercise any such option,
either in its own name and behalf, or in the name and behalf of the Company, as
the Administrative Agent shall in its sole discretion determine; provided,
however, that the Administrative Agent shall, to the extent practicable, first
give the Company 20 days prior written notice and opportunity to notify the
Administrative Agent that the Company reasonably deems such renewal inadvisable.
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(i) The Company shall promptly notify the Administrative Agent of
any material change in the rent or other charges payable under any Lease, except
for changes made pursuant to the provisions of such Lease.
(j) In the event that any proceeds of insurance in excess of
$500,000 on any part of the Mortgaged Property, or any Condemnation Proceeds,
shall be deposited with any Person pursuant to the requirements of any Lease,
the Company shall promptly notify the Administrative Agent of the name and
address of the Person with whom such proceeds have been deposited and of the
amount so deposited.]
Section 1.15. Notice Regarding Special Flood Hazards. The Company
hereby acknowledges that the Properties described in Exhibit C hereto are in
zones identified by the Director of the Federal Emergency Management Agency as
special flood hazard zones described in 12 C.F.R. ss. 22.2 and that it has
received prior to the making of the Loans, and the incurrence of any other
indebtedness constituting part of the Obligations, secured by this Indenture the
notice regarding Federal disaster relief assistance referred to in the Appendix
to 12 C.F.R. Part 22.
ARTICLE II
Assignment of Rents, Issues and Profits
Section 2.01. Assignment of Rents, Issues and Profits. The Company
does hereby assign to the Administrative Agent the Company's right, title and
interest in all current and future rents, revenues, issues, profits, royalties,
income and benefits derived from the Properties, the Improvements and the
Fixtures (collectively, the "Rents"), it being intended by the Company that this
assignment constitutes a present, absolute assignment and not an assignment for
additional security only. The Company agrees to execute and deliver to the
Administrative Agent such additional instruments, in form and substance
reasonably satisfactory to the Administrative Agent, as may hereafter be
requested by the Administrative Agent to further evidence and confirm such
assignment. Nevertheless, subject to the terms of this Section 2.01, the
Administrative Agent grants to the Company a license, revocable as hereinafter
provided, to operate and manage the Mortgaged Property and to collect and use
the Rents subject to the requirements of the Credit Agreement. Upon the
occurrence of a Default, the license granted to the Company herein may be
revoked by the Administrative Agent, and, upon written notice of such
revocation, the Administrative Agent shall immediately be entitled to possession
of all Rents collected thereafter (including Rents past due and unpaid), whether
or not the Administrative Agent enters upon or takes control of the Mortgaged
Property. The Administrative Agent is hereby granted and assigned by the Company
the right, at its option, upon revocation of the license granted herein, to
enter upon the Mortgaged Property in person, by agent or by court appointed
receiver to collect the Rents. Any of the Rents collected after the
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revocation of the license may be applied toward payment of the Obligations in
accordance with the Credit Agreement.
Section 2.02. Collection Upon Default. To the extent permitted by
law, upon the occurrence of any Default, the Administrative Agent may, at any
time without notice, either in person, by agent or by a receiver appointed by a
court, and without regard to the adequacy of any security for the Obligations or
the solvency of the Company, enter upon and take possession of the Properties,
the Improvements and the Fixtures or any part thereof, in its own name, ▇▇▇ for
or otherwise collect the Rents including those past due and unpaid, and apply
the same, less costs and expenses of operation and collection, including
attorneys' fees, to the payment of the Obligations as provided in Section
4.03(a) hereof, and in such order as the Administrative Agent may determine. The
collection of the Rents or the entering upon and taking possession of the
Properties, the Improvements or the Fixtures or any part thereof, or the
application thereof as aforesaid, shall not cure or waive any Default or notice
thereof or invalidate any act done in response to such Default or pursuant to
notice thereof.
ARTICLE III
Security Agreement
Section 3.01. Creation of Security Interest. The Company hereby
grants to the Administrative Agent a security interest in the Fixtures for the
purpose of securing the Obligations. The Administrative Agent shall have, in
addition to all rights and remedies provided herein and in the other Loan
Instruments, all the rights and remedies of a secured party under the Uniform
Commercial Code of the State in which the applicable portion of the Fixtures is
located.
Section 3.02. Warranties, Representations and Covenants. Subject to
Section 9.05 of the Credit Agreement, the Company hereby warrants, represents
and covenants that: (a) the Fixtures will be kept on or at the related
Properties and the Company will not remove any Fixtures from the related
Properties, except such portions or items of the Fixtures which are consumed or
worn out in ordinary usage, all of which shall be promptly replaced by the
Company, except as otherwise expressly provided in Section 1.06 hereof, (b) all
covenants and obligations of the Company contained herein relating to the
Mortgaged Property shall be deemed to apply to the Fixtures whether or not
expressly referred to herein and (c) this Indenture constitutes a security
agreement and "fixture filing" as those terms are used in the applicable Uniform
Commercial Code. Information relative to the security interest created hereby
may be obtained by application to the Administrative Agent (secured party) ▇/▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇ Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Loan and Agency Services Group. The mailing address of the Company is
set forth on Page 1 hereof.
Form of Mortgage
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ARTICLE IV
Defaults; Remedies
Section 4.01. Defaults. If any Event of Default (herein, a
"Default") under the Credit Agreement shall occur and be continuing then,
subject to and as more particularly provided in the Credit Agreement, the
principal of and accrued interest on the Loans and all other Obligations may be
declared, or may become, due and payable, without presentment, demand, protest
or other formalities of any kind, all of which have been waived pursuant to the
Credit Agreement.
Section 4.02. Default Remedies.
(a) If a Default shall have occurred and be continuing, this
Indenture may, to the maximum extent permitted by law, be enforced as a
mortgage, and the Administrative Agent may exercise any right, power or remedy
permitted to it hereunder, under the Credit Agreement or under any of the other
Loan Instruments or by law, and, without limiting the generality of the
foregoing, the Administrative Agent may, personally or by their respective
agents, to the maximum extent permitted by law:
(i) enter and take possession of the Mortgaged Property or any part
thereof, exclude the Company and all Persons claiming under the Company
whose claims are junior to this Indenture, wholly or partly therefrom, and
use, operate, manage and control the same either in the name of the
Company or otherwise as the Administrative Agent shall deem best, and upon
such entry, from time to time at the expense of the Company and the
Mortgaged Property, make all such repairs, replacements, alterations,
additions or improvements to the Mortgaged Property or any part thereof as
the Administrative Agent may deem proper and, whether or not the
Administrative Agent has so entered and taken possession of the Mortgaged
Property or any part thereof, collect and receive all the rents and
profits and apply the same, to the extent permitted by law, to the payment
of all expenses which the Administrative Agent may be authorized to make
under this Indenture, the remainder to be applied to the payment of the
Obligations until the same shall have been repaid in full; if the
Administrative Agent demands or attempts to take possession of the
Mortgaged Property or any portion thereof in the exercise of any rights
hereunder, the Company shall promptly turn over and deliver complete
possession thereof to the Administrative Agent, as the case may be; and
(ii) to the maximum extent permitted by law, personally or by
agents, with or without entry, if the Administrative Agent shall deem it
advisable:
(x) sell the Mortgaged Property at a sale or sales held at
such place or places and time or times and upon such notice and
otherwise in such manner as may be required by law, or, in the
absence of any such requirement, as the
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Administrative Agent may deem appropriate, and from time to time
adjourn any such sale by announcement at the time and place
specified for such sale or for such adjourned sale without further
notice, except such as may be required by law;
(y) proceed to protect and enforce its rights under this
Indenture, by suit for specific performance of any covenant
contained herein or in the Loan Instruments or in aid of the
execution of any power granted herein or in the Loan Instruments, or
for the foreclosure of this Indenture (as a mortgage or otherwise)
and the sale of the Mortgaged Property under the judgment or decree
of a court of competent jurisdiction, or for the enforcement of any
other right as the Administrative Agent shall deem most effectual
for such purpose, provided, that in the event of a sale, by
foreclosure or otherwise, of less than all of the Mortgaged
Property, this Indenture shall continue as a lien on, and security
interest in, the remaining portion of the Mortgaged Property; or
(z) exercise any or all of the remedies available to a secured
party under the applicable Uniform Commercial Code, including,
without limitation:
(1) either personally or by means of a court appointed
receiver, take possession of all or any of the Fixtures and
exclude therefrom the Company and all Persons claiming under
the Company, and thereafter hold, store, use, operate, manage,
maintain and control, make repairs, replacements, alterations,
additions and improvements to and exercise all rights and
powers of the Company in respect of the Fixtures or any part
thereof; if the Administrative Agent demands or attempts to
take possession of the Fixtures in the exercise of any rights
hereunder, the Company shall promptly turn over and deliver
complete possession thereof to the Administrative Agent;
(2) without notice to or demand upon the Company, make such
payments and do such acts as the Administrative Agent may deem
necessary to protect its security interest in the Fixtures,
including, without limitation, paying, purchasing, contesting
or compromising any encumbrance which is prior to or superior
to the security interest granted hereunder, and in exercising
any such powers or authority paying all expenses incurred in
connection therewith;
(3) require the Company to assemble the Fixtures or any
portion thereof, at a place designated by the Administrative
Agent and reasonably convenient to both parties, and promptly
to deliver the Fixtures to the Administrative Agent, or an
agent or representative designated by it; the Administrative
Agent, and its agents and representatives, shall have the
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right to enter upon the premises and property of the Company
to exercise the Administrative Agent's rights hereunder;
(4) sell, lease or otherwise dispose of the Fixtures, with or
without having the Fixtures at the place of sale, and upon
such terms and in such manner as the Administrative Agent may
determine (and the Administrative Agent or any Lender may be a
purchaser at any such sale); and
(5) unless the Fixtures are perishable or threaten to decline
speedily in value or are of a type customarily sold on a
recognized market, the Administrative Agent shall give the
Company at least ten days' prior notice of the time and place
of any sale of the Fixtures or other intended disposition
thereof.
(b) If a Default shall have occurred and be continuing, the
Administrative Agent, to the maximum extent permitted by law, shall be entitled,
as a matter of right, to the appointment of a receiver of the Mortgaged
Property, without notice or demand, and without regard to the adequacy of the
security for the Obligations or the solvency of the Company. The Company hereby
irrevocably consents to such appointment and waives notice of any application
therefor. Any such receiver or receivers shall have all the usual powers and
duties of receivers in like or similar cases and all the powers and duties of
the Administrative Agent in case of entry and shall continue as such and
exercise all such powers until the date of confirmation of sale of the Mortgaged
Property, unless such receivership is sooner terminated.
(c) If a Default shall have occurred and be continuing and either
this Indenture is being enforced pursuant to clause (a) above or an Event of
Default shall have occurred under Section 10(e), (f) or (g) of the Credit
Agreement, the Company shall, to the maximum extent permitted by law, pay
monthly in advance to the Administrative Agent, or to any receiver appointed at
the request of the Administrative Agent to collect rents, the fair and
reasonable rental value for the use and occupancy of the Properties, the
Improvements and the Fixtures or of such part thereof as may be in the
possession of the Company. Upon default in the payment thereof, the Company
shall vacate and surrender possession of the Properties, the Improvements and
the Fixtures to the Administrative Agent or such receiver, and upon a failure so
to do may be evicted by summary proceedings.
(d) In any sale under any provision of this Indenture or pursuant to
any judgment or decree of court, the Mortgaged Property, to the maximum extent
permitted by law, may be sold in one or more parcels or as an entirety and in
such order as the Administrative Agent may elect, without regard to the right of
the Company or any Person claiming under the Company to the marshalling of
assets. The purchaser at any such sale shall take title to the Mortgaged
Property or the part thereof so sold free and discharged of the estate of the
Company therein, the purchaser being hereby discharged from all liability to see
to the application of the purchase money. Any Person, including the
Administrative Agent or any Lender, may purchase at any
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such sale. Upon the completion of any such sale by virtue of this Section 4.02,
the Administrative Agent shall execute and deliver to the purchaser an
appropriate instrument which shall effectively transfer all of the Company's and
the Administrative Agent's estate, right, title, interest, property, claim and
demand in and to the Mortgaged Property or portion thereof so sold, but without
any covenant or warranty, express or implied. The Administrative Agent is hereby
irrevocably appointed the attorney-in-fact of the Company in its name and stead
to make all appropriate transfers and deliveries of the Mortgaged Property or
any portions thereof so sold and, for that purpose, the Administrative Agent may
execute all appropriate instruments of transfer, and may substitute one or more
Persons with like power, the Company hereby ratifying and confirming all that
said attorneys or such substitute or substitutes shall lawfully do by virtue
hereof. Nevertheless, the Company shall ratify and confirm, or cause to be
ratified and confirmed, any such sale or sales by executing and delivering, or
by causing to be executed and delivered, to the Administrative Agent or to such
purchaser or purchasers all such instruments as may be advisable, in the
judgment of the Administrative Agent, for such purpose, and as may be designated
in such request. Any sale or sales made under or by virtue of this Indenture, to
the extent not prohibited by law, shall operate to divest all the estate, right,
title, interest, property, claim and demand whatsoever, whether at law or in
equity, of the Company in, to and under the Mortgaged Property, or any portions
thereof so sold, and shall be a perpetual bar both at law and in equity against
the Company and against any and all Persons claiming or who may claim the same,
or any part thereof, by, through or under the Company. The powers and agency
herein granted are coupled with an interest and are irrevocable.
(e) To the maximum extent permitted by applicable law, all rights of
action under the Loan Instruments and this Indenture may be enforced by the
Administrative Agent without the possession of the Loan Instruments and without
the production thereof at any trial or other proceeding relative thereto.
Section 4.03. Application of Proceeds.
(a) The proceeds of any sale made either under the power of sale
hereby given or under a judgment, order or decree made in any action to
foreclose or to enforce this Indenture, or of any monies held by the
Administrative Agent hereunder shall, to the maximum extent permitted by law, be
applied:
(i) first to the payment of all costs and expenses of such sale,
including the Administrative Agent's attorneys' fees and disbursements;
(ii) then to the payment of all charges, expenses and advances
incurred or made by the Administrative Agent in order to protect the lien
and estate of this Indenture or the security afforded hereby;
(iii) then to the payment in full of the Obligations in each case
equally and ratably in accordance with the respective amounts then due and
owing or as the Lenders
Form of Mortgage
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holding the same may otherwise agree; first to accrued interest on the
Obligations, then to premiums or prepayment charges and all other fees and
other amounts due in connection with the Obligations other than such
amounts due pursuant to Section 5 of the Credit Agreement, then to the
principal of the Obligations, and then to all obligations due pursuant to
Section 5 of the Credit Agreement;
(iv) then to the payment in full of the principal of and interest on
all other Obligations, ratably in accordance with the respective amounts
thereof then due and owing or as the Lenders holding the same may
otherwise agree,
and after payment in full of all Obligations any surplus remaining shall be paid
to the Company or to whomsoever may be lawfully entitled to receive the same.
(b) No sale or other disposition of all or any part of the Mortgaged
Property pursuant to Section 4.02 hereof shall be deemed to relieve the Company
of its obligations under any Loan Instrument except to the extent the proceeds
thereof are applied to the payment of such obligations. If the proceeds of sale,
collection or other realization of or upon the Mortgaged Property are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Obligations, the Company shall remain liable for any deficiency.
Section 4.04. Right to ▇▇▇. The Administrative Agent shall have the
right from time to time to ▇▇▇ for any sums required to be paid by the Company
under the terms of this Indenture as the same become due, without regard to
whether or not the Obligations shall be, or have become, due and without
prejudice to the right of the Administrative Agent thereafter to bring any
action or proceeding of foreclosure or any other action upon the occurrence of
any Default existing at the time such earlier action was commenced.
Section 4.05. Powers of the Administrative Agent. To the extent
permitted by applicable law, the Administrative Agent may at any time or from
time to time renew or extend this Indenture or (with the agreement of the
Company) alter or modify the same in any way, or waive any of the terms,
covenants or conditions hereof or thereof, in whole or in part, and may release
or reconvey any portion of the Mortgaged Property or any other security, and
grant such extensions and indulgences in relation to the Obligations, or release
any Person liable therefor as the Administrative Agent may determine without the
consent of any junior lienor or encumbrancer, without any obligation to give
notice of any kind thereto, without in any manner affecting the priority of the
lien and estate of this Indenture on or in any part of the Mortgaged Property,
and without affecting the liability of any other Person liable for any of the
Obligations.
Section 4.06. Remedies Cumulative.
(a) No right or remedy herein conferred upon or reserved to the
Administrative Agent is intended to be exclusive of any other right or remedy,
and each and every right and remedy shall be cumulative and in addition to any
other right or remedy under this Indenture or
Form of Mortgage
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under applicable law, whether now or hereafter existing; the failure of the
Administrative Agent to insist at any time upon the strict observance or
performance of any of the provisions of this Indenture, or to exercise any right
or remedy provided for herein or under applicable law, shall not impair any such
right or remedy nor be construed as a waiver or relinquishment thereof.
(b) The Administrative Agent shall be entitled to enforce payment
and performance of any of the obligations of the Company and to exercise all
rights and powers under this Indenture or under any Loan Instrument or any
applicable laws now or hereafter in force, notwithstanding that some or all of
the Obligations may now or hereafter be otherwise secured, whether by mortgage,
deed of trust, pledge, lien, assignment or otherwise; neither the acceptance of
this Indenture nor its enforcement, whether by court action or pursuant to the
power of sale or other powers herein contained, shall prejudice or in any manner
affect the Administrative Agent's right to realize upon or enforce any other
security now or hereafter held by the Administrative Agent, it being stipulated
that the Administrative Agent shall be entitled to enforce this Indenture and
any other security now or hereafter held by the Administrative Agent in such
order and manner as the Administrative Agent, in its sole discretion, may
determine; every power or remedy given by the Credit Agreement, this Indenture
or any of the other Loan Instruments to the Administrative Agent or to which the
Administrative Agent is otherwise entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by the
Administrative Agent.
Section 4.07. Waiver of Stay, Extension, Moratorium Laws; Equity of
Redemption. To the maximum extent permitted by law, the Company shall not at any
time insist upon, or plead, or in any manner whatever claim or take any benefit
or advantage of any applicable present or future stay, extension or moratorium
law, which may affect observance or performance of the provisions of this
Indenture; nor claim, take or insist upon any benefit or advantage of any
present or future law providing for the valuation or appraisal of the Mortgaged
Property or any portion thereof prior to any sale or sales thereof which may be
made under or by virtue of Section 4.02 hereof; and the Company, to the extent
that it lawfully may, hereby waives all benefit or advantage of any such law or
laws. The Company for itself and all who may claim under it, hereby waives, to
the maximum extent permitted by applicable law, any and all rights and equities
of redemption from sale under the power of sale created hereunder or from sale
under any order or decree of foreclosure of this Indenture and (if a Default
shall have occurred) all notice or notices of seizure, and all right to have the
Mortgaged Property marshalled upon any foreclosure hereof. The Administrative
Agent shall not be obligated to pursue or exhaust its rights or remedies as
against any other part of the Mortgaged Property and the Company hereby waives
any right or claim of right to have the Administrative Agent proceed in any
particular order.
Form of Mortgage
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ARTICLE V
Miscellaneous
Section 5.01. Reconveyance. Upon the termination of the Commitments
under and as defined in the Credit Agreement and the payment in full of the
Obligations, the Administrative Agent shall release the lien of this Indenture
or reconvey, without warranty or covenant, any portion of the Mortgaged Property
then held hereunder to the Company or upon the request of the Company and at the
Company's expense assign this Indenture without recourse to the Company's
designee, or to the Person or Persons legally entitled thereto, by an instrument
duly acknowledged in form for recording.
Section 5.02. Notices. All notices, demands, consents, requests or
other communications (collectively, "notices") that are permitted or required to
be given by any party to the other hereunder shall be in writing and given in
the manner specified in Section 12.02 of the Credit Agreement.
Section 5.03. Amendments; Waivers; etc. This Indenture cannot be
modified, changed or discharged except by an agreement in writing, duly
acknowledged in form for recording, signed by the party against whom enforcement
of such modification, change or discharge is sought.
Section 5.04. Successors and Assigns. This Indenture applies to,
inures to the benefit of and binds each of the parties hereto and their
respective successors and assigns and shall run with the Properties.
Section 5.05. Captions. The captions or headings at the beginning of
each Section hereof are for the convenience of the parties hereto and are not a
part of this Indenture.
Section 5.06. Invalidity of Certain Provisions. If the lien or
estate of this Indenture is invalid or unenforceable as to any part of the
Mortgaged Property, the unsecured or partially secured portion of such
indebtedness shall be completely paid prior to the payment of the remaining and
secured or partially secured portion thereof, and all payments made on such
indebtedness, whether voluntary or under foreclosure or other enforcement action
or procedure, shall be considered to have been first paid on and applied to the
full payment of that portion thereof that is not secured or fully secured by the
lien or estate of this Indenture.
Section 5.07. Severability. If any term or provision of this
Indenture or the application thereof to any Person or circumstance shall to any
extent be invalid or unenforceable, the remainder of this Indenture, or the
application of such term or provision to Persons or circumstances other than
those as to which it is invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Indenture shall be valid and enforceable to
the maximum extent permitted by law. If any portion of the Obligations shall for
any reason not be
Form of Mortgage
-25-
secured by a valid and enforceable lien upon any part of the Mortgaged Property,
then any payments made in respect of the Obligations (whether voluntary or under
foreclosure or other enforcement action or procedure or otherwise) shall, for
purposes of this Indenture (except to the extent otherwise required by
applicable law) be deemed to be made (i) first, in respect of the portion of the
Obligations not secured by the lien of this Indenture, (ii) second, in respect
of the portion of the Obligations secured by the lien of this Indenture, but
which lien is on less than all of the Mortgaged Property, and (iii) last, to the
portion of the Obligations secured by the lien of this Indenture, and which lien
is on all of the Mortgaged Property.
Section 5.08. One of a Number of Indentures. This Indenture is given
as security together with certain other indentures which collectively cover the
Properties and other properties more particularly described in the Loan
Instruments and secure the Obligations. A copy of all such indenture instruments
(including this Indenture) are on file with the Company and with the
Administrative Agent and are available for inspection during normal business
hours upon reasonable advance request therefor. A default with respect to any
such indenture instrument (including this Indenture) shall constitute a default
under all such indenture instruments (including this Indenture).
Section 5.09. Governing Law. This Indenture shall be governed by and
construed in accordance with the laws of the State of New York including both
matters of internal law and conflicts of law, except that matters of title to
the Mortgaged Property and the creation, perfection, priority and foreclosure of
liens on, and security interests in, the Mortgaged Property shall be governed by
the laws of the State in which the Mortgaged Property is located.
Section 5.10. Variable Rate. The interest rate on the Loans is
subject to change in accordance with the terms of the Credit Agreement.
Section 5.11. Future Advances. [To be added by Local Counsel.]
Section 5.12. Release. Anything contained in this Indenture or any
other Loan Instrument to the contrary notwithstanding, the Company shall be
entitled to dispose of all or any part of the Mortgaged Property in accordance
with the terms of the Credit Agreement. If the Company so disposes of the
Mortgaged Property (or any part thereof), the Administrative Agent shall release
the lien, security interest and assignment against or of the Mortgaged Property
(or part thereof) created and evidenced hereby.
Form of Mortgage
-26-
IN WITNESS WHEREOF, this Indenture has been duly executed by the
Company as of the day and year first above written.
[_______________________________]
By _______________________________
Name:
Title:
Form of Mortgage
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss:
COUNTY OF NEW YORK )
On the ____ day of __________________, _____, before me, the undersigned,
a notary public in and for said state, personally appeared
_______________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument, and acknowledged to me that he/she executed the same in
his/her capacity and that by his/her signature on the instrument the individual
or the person upon behalf of which the individual acted executed the instrument.
_________________________________
Notary Public
[SEAL]
Form of Mortgage
Exhibit A
[Fee] Properties
Form of Mortgage
Exhibit B
Leasehold Properties
Form of Mortgage
Exhibit C
Description of Properties in a Flood Hazard Zone
Form of Mortgage
EXHIBIT E-1
[Opinion of General Counsel]
June 29, 2000
The Chase Manhattan Bank
as Administrative Agent for the
Lenders hereinafter named
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
Each of the Lenders
party to the Credit
Agreement referred to below
Ladies and Gentlemen:
I am the General Counsel of United Stationers Inc., a Delaware
corporation (the "Guarantor"), United Stationers Supply Co., an Illinois
corporation (the "Borrower"), Azerty Incorporated, a Delaware corporation
("Azerty") and ▇▇▇▇▇▇▇ Bros., Inc., a Louisiana corporation ("▇▇▇▇▇▇▇"; and
together with the Borrower, the Guarantor and Azerty, collectively, the "Opinion
Parties", and each, an "Opinion Party") and have acted as counsel to the Opinion
Parties in connection with the preparation, authorization, execution and
delivery of, and the consummation of the transactions contemplated by, the Third
Amended and Restated Credit Agreement dated as of June 29, 2000 (the "Credit
Agreement") among the Borrower, the Guarantor, the various lending institutions
party thereto (the "Lenders") and The Chase Manhattan Bank, as administrative
agent (the "Administrative Agent"). Capitalized terms defined in the Credit
Agreement and used but not otherwise defined herein are used herein as so
defined.
In so acting, I have examined originals or copies, certified or
otherwise identified to my satisfaction, of the following documents, each dated
as of the date hereof: (i) the Credit Agreement, the Security Agreement, the
Pledge Agreement, the Subsidiary Guarantee and Security Agreement and the
promissory notes delivered as of the Effective Date pursuant to Section 2.08(d)
(collectively, the "Loan Documents") and (ii) such corporate records,
agreements, documents and other instruments, and such certificates or comparable
documents of
Opinion of General Counsel
-2-
public officials and of officers and representatives of the Opinion Parties, and
have made such inquiries of such officers and representatives as I have deemed
relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of all
signatures (other than those of the Opinion Parties), the legal capacity of
natural persons, the authenticity of all documents submitted to me as originals,
the conformity to original documents of all documents submitted to me as
certified or photostatic copies and the authenticity of the originals of such
latter documents. As to all questions of fact material to this opinion that have
not been independently established, I have relied upon certificates or
comparable documents of officers and representatives of the Opinion Parties and
upon the representations and warranties of the Opinion Parties contained in the
Loan Documents.
Based on the foregoing, and subject to the qualifications stated
herein, I am of the opinion that:
1. Each of the Guarantor and Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and Illinois respectively, and has all requisite
corporate power and authority to own, lease and operate its properties and
to carry on its business as now being conducted. Each of the Guarantor and
the Borrower is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction where the character
of its activities requires such qualification, except where the failure of
the Guarantor or the Borrower to be so qualified would not have a material
adverse effect on the business, operations or financial condition of the
Guarantor and its Subsidiaries considered as a whole or of the Borrower
and its Subsidiaries considered as a whole, or on the validity or
enforceability of the Loan Documents.
2. Each of the Guarantor and the Borrower has all requisite
corporate power and authority to execute and deliver the Loan Documents to
which each of them is a party and to perform their respective obligations
thereunder. The execution, delivery and performance of the Loan Documents
by each of the Guarantor and the Borrower that is a party thereto and the
consummation by each of the Guarantor and the Borrower of the transactions
contemplated thereby to be performed by each of them have been duly
authorized by all necessary corporate action on the part of the Guarantor
and the Borrower. The Loan Documents have been duly and validly executed
and delivered by the Borrower and the Guarantor, as the case may be.
3. The execution and delivery of the Loan Documents, the
consummation of the transactions contemplated thereby and compliance by
the Opinion Parties with any of the provisions thereof will not conflict
with, constitute a default under or violate (i) any of the terms,
conditions or provisions of the certificate of incorporation or by-laws of
such Opinion Party, (ii) any of the terms, conditions or provisions of any
material document, agreement or other instrument to which such Opinion
Party is a party or by which it is bound (including without limitation any
of the Senior Subordinated Debt Documents) of which I am aware after due
inquiry, (iii) any Illinois, Delaware corporate or Federal law
Opinion of General Counsel
-3-
or regulation (other than Federal and state securities or blue sky laws,
as to which I express no opinion), or (iv) any judgment, writ, injunction,
decree, order or ruling of any court or governmental authority binding on
such Opinion Party of which I am aware after due inquiry.
4. No consent, approval, waiver, license or authorization or other
action by or filing with any Illinois, Delaware corporate or Federal
governmental authority is required in connection with the execution and
delivery by any Opinion Party of the Loan Documents to which it is a party
or the consummation by such Opinion Party of the transactions contemplated
thereby, except for the filing of UCC financing statements, if any, and
other filings in respect of the Collateral (as defined in the relevant
Loan Documents) and those already obtained.
5. Except as set forth in Schedule V to the Credit Agreement, to my
knowledge after inquiry of the responsible officers of the Opinion
Parties, there is no litigation, proceeding or governmental investigation
pending or overtly threatened against any Opinion Party or any of their
respective properties or revenues that (i) relates to any of the
transactions contemplated by the Loan Documents or (ii) which, if
Adversely determined, would reasonably be expected to have a Material
Adverse Effect.
The opinions expressed herein are limited to the laws of the State
of Illinois, the corporate laws of the State of Delaware and the Federal laws of
the United States, and I express no opinion as to the effect on the matters
covered by this letter of the laws of any other jurisdiction.
The opinions expressed herein are rendered solely for your benefit
and the benefit of your assignees and participants, in connection with the
transactions described above. Those opinions may not be relied upon by any other
person, nor may this letter or any copies thereof be furnished to a third party,
filed with a governmental agency, quoted, cited or otherwise referred to without
my prior written consent, except that copies of this opinion may be furnished to
your independent auditors, legal counsel and appropriate regulatory authorities
and pursuant to an order or legal process of any relevant governmental
authority.
Very truly yours,
By:___________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
General Counsel
Opinion of General Counsel
EXHIBIT E-2
[Form of Opinion of Special Counsel to the Credit Parties]
June 29, 2000
The Lenders Party to the
Credit Agreement referred to below
and The Chase Manhattan Bank, as
Administrative Agent
Ladies and Gentlemen:
We have acted as counsel to United Stationers Supply Co., an
Illinois corporation ("Borrower"), United Stationers Inc., a Delaware
corporation ("United"), ▇▇▇▇▇▇▇ Bros., Inc., a Louisiana corporation ("▇▇▇▇▇▇▇")
and Azerty Incorporated, a Delaware corporation ("Azerty"), (United, Borrower,
▇▇▇▇▇▇▇ and Azerty are sometimes referred to individually as a "Loan Party" and
collectively as the "Loan Parties"), in connection with the preparation,
authorization, execution and delivery of, and the consummation of the
transactions contemplated by, that certain Credit Agreement dated as of March
30, 1995, as amended and restated as of October 31, 1996, as further amended and
restated as of April 3, 1998, and as further amended and restated pursuant to
the Third Amended and Restated Credit Agreement as of June 29, 2000 (the "Credit
Agreement"), among the Borrower, United, the Lenders named therein
(collectively, the "Lenders") and The Chase Manhattan Bank, as administrative
agent for the Lenders (the "Administrative Agent"). Capitalized terms used
herein but not otherwise defined have the meanings ascribed to them in the
Credit Agreement. This opinion is delivered to you pursuant to Section
7.01(c)(ii) of the Credit Agreement.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the following documents, each dated
as of the date hereof: (i) the Credit Agreement, (ii) the Subsidiary Guarantee
and Security Agreement, (iii) the Security Agreement (collectively with the
Subsidiary Guarantee and Security Agreement, the "Security Documents"), (iv) the
promissory notes delivered in connection with the Credit Agreement and (v) the
Pledge Agreement (the items listed in (i) through (v) above are hereinafter
referred to collectively as the "Transaction Documents"), and (vi) such
corporate records, agreements, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and
representatives of the Loan Parties as we have deemed relevant and necessary as
a basis for the opinions hereinafter set forth. We have also made such inquiries
of
Opinion of Special Counsel to the Credit Parties
-2-
such officers and representatives of the Loan Parties as we deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates or comparable documents of officers and
representatives of the Loan Parties and upon the representations and warranties
of the Loan Parties contained in the Loan Documents. We have also assumed (i)
the valid existence of the Loan Parties (other than Azerty), (ii) that the Loan
Parties (other than Azerty) each has the requisite corporate power and authority
to enter into and perform each Transaction Document to which it is a party, and
(iii) the due authorization, execution and delivery by each of the Loan Parties
(other than Azerty) of the Transaction Documents to which each is a party. As
used herein, "to our knowledge" and "of which we are aware" mean the awareness
of facts or other information by any lawyer in our firm actively involved in
negotiating the transactions contemplated by the Transaction Documents.
Based on the foregoing, and subject to the qualifications stated herein,
we are of the opinion that:
1. Azerty is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. Azerty has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted.
2. Azerty has all requisite corporate power and authority to execute
and deliver the Transaction Documents to which it is a party and to perform its
obligations thereunder. The execution, delivery and performance by Azerty of the
Transaction Documents to which it is a party and the consummation of the
transactions contemplated thereby have been duly authorized by all necessary
corporate action on the part of each of them. The Transaction Documents to which
Azerty is a party have been duly and validly executed and delivered by it.
3. Assuming the due authorization, execution and delivery thereof by
the parties thereto (other than Azerty), the Transaction Documents to which each
of the Loan Parties is a party constitute the legal, valid and binding
obligations of such Loan Party, enforceable against such Loan Party in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except that (i)
rights to indemnification and contribution thereunder may be limited by federal
or state securities laws or public policy relating thereto, (ii) certain
remedial provisions of the Security Documents and the Pledge Agreement are or
may be unenforceable in whole or in part under the laws of the State of New
York, but the inclusion of such provisions does not affect the validity of the
Security Documents and the Pledge Agreement, and the Security Documents and the
Pledge Agreement contain adequate provisions for the practical realization of
the rights and benefits afforded thereby, and (iii) no opinion is expressed with
respect to Section 4.07(c) of the
Opinion of Special Counsel to the Credit Parties
-3-
Credit Agreement insofar as it provides for the right of set-off by a
Participant. No opinion is expressed in this paragraph as to attachment,
perfection or priority of any liens granted pursuant to the Security Documents
and the Pledge Agreement.
4. No consent, approval, waiver, license or authorization or other
action by or filing with, or other act by or in respect of, any New York
governmental authority is required in connection with the execution and delivery
by the Loan Parties of the Transaction Documents to which each is a party, or
the consummation by the Loan Parties of the transactions contemplated thereby,
except (i) consents which have already been obtained, (ii) UCC-1 financing
statements and other filings with respect to the Collateral, and (iii) under
state securities or blue sky laws, as to which we express no opinion.
5. The execution and delivery of the Transaction Documents and the
Financing Statements, the consummation of the transactions contemplated thereby
and compliance by each of the Loan Parties with the provisions thereof
pertaining to such Loan Party, will not conflict with, constitute a default
under or violate any New York law or regulation (other than state securities or
blue sky laws, as to which we express no opinion).
6. None of the Loan Parties is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
7. The making of the extensions of credit under the Credit Agreement
does not violate Regulations T, U or X of the Board of Governors of the Federal
Reserve System.
8. (a) Assuming the filing of the financing statements on Form UCC-1
in the office of the recorder of ▇▇▇▇▇▇ County, New York, the execution and
delivery of the Security Agreement creates a valid and duly perfected security
interest in the "Collateral" (as such term is defined in the Security Agreement)
to the extent perfection of a security interest in the Collateral may be
perfected by the filing of a financing statement under the Uniform Commercial
Code in effect in the State of New York (the "New York UCC") as security for the
Secured Obligations, as defined in the Security Agreement. Assuming the original
financing statements, including the continuation statements relating thereto,
(the "Original Financing Statements") filed against the Borrower and Azerty, as
appropriate, describe the Collateral as defined in each of the Security
Agreement dated as of October 31, 1996, as amended and restated as of April 3,
1998 (the "Original Security Agreement") and the Subsidiary Guarantee and
Security Agreement, dated as of October 31, 1996 (the "Original Subsidiary
Guarantee and Security Agreement," and together with the Original Security
Agreement, sometimes referred to herein as the "Original Security Documents"),
and name the Borrower or Azerty, as appropriate, as debtor, and the
Administrative Agent as the secured party, and were duly filed in the offices of
the Secretary of State of the State of New York, Erie County, the New York City
Register and the Secretary of State of the State of Texas, and are valid,
unreleased and unexpired, the execution and delivery of the Security Documents
continues a valid lien on and security interest in the Collateral originally
created pursuant to the Original Security Documents (other than the Collateral
located in ▇▇▇▇▇▇ County, New York) and no further filing is necessary under the
laws of the States of New York or Texas to maintain perfection of any security
interest created by the Security Documents, to the extent the perfection of a
lien on and security interest in the Collateral may be perfected by the filing
of a financing statement under the New York UCC or the Uniform
Opinion of Special Counsel to the Credit Parties
-4-
Commercial Code in effect in the State of Texas (the "Texas UCC," and together
with the New York UCC, the "UCC").
(b) Assuming (i) the continued possession in New York by the
Administrative Agent of all Pledged Stock (as defined in and listed on the
schedules to the Original Security Agreement), together with stock powers
properly executed in blank with respect thereto, and (ii) that the
Administrative Agent and the Lenders were without notice of any adverse claim
(as such phrase is defined in Section 8-105 of the New York UCC with respect to
such Pledged Stock), the execution and delivery of the Security Agreement
continues the duly perfected lien on and security interest in such Pledged Stock
as security for the Secured Obligations, which was created pursuant to the
Original Security Agreement. Assuming (i) the continued possession in New York
by the Administrative Agent of all Pledged Stock (as defined in and listed on
the schedules to that certain Pledge Agreement dated as of October 31, 1996 (the
"Original Pledge Agreement")), together with stock powers properly executed in
blank with respect thereto, and (ii) that the Administrative Agent and the
Lenders were without notice of any adverse claim (as such phrase is defined in
Section 8-105 of the New York UCC with respect to such Pledged Stock), the
execution and delivery of the Pledge Agreement continues the duly perfected lien
on and security interest in such Pledged Stock as security for the Secured
Obligations, which was created pursuant to the Original Pledge Agreement.
The opinions in paragraph 8(a) and, with respect to subclause (A) and subclause
(B) below, paragraph 8(b), are subject to the following exceptions:
(A) that with respect to the Loan Parties' rights in or title to the
Collateral, we express no opinion, and have assumed that the Loan Parties
have title to the Collateral;
(B) that with respect to any Collateral as to which the perfection
of a lien on or security interest in is governed by the laws of any
jurisdiction other than the States of New York and Texas, we express no
opinion; and
(C) that with respect to any Collateral which is or may become
fixtures (within the meaning of Section 9-313 of the UCC), we express no
opinion.
The opinion set forth in paragraph 8(b) is subject to the following exceptions:
(A) that with respect to (i) federal tax liens accorded priority
under law and (ii) liens created under Title IV of the Employee Retirement
Income Security Act of 1974 which are properly filed after the date
hereof, we express no opinion as to the relative priority of such liens
and the security interests created by the Security Documents; and
(B) that with respect to any claim (including for taxes) in favor of
any state or any of its respective agencies, authorities, municipalities
or political subdivisions which claim is given lien status and/or priority
under any law of such state, we express no opinion as to the relative
priority of such liens and the security interests created by the Security
Documents.
Opinion of Special Counsel to the Credit Parties
-5-
In addition, the opinions in this paragraph 8 are subject to (i) the
limitations on perfection of security interests in proceeds resulting from the
operation of Section 9-306 of the UCC; (ii) the limitations with respect to
buyers in the ordinary course of business imposed by Sections 9-307 and 9-308 of
the UCC; (iii) the limitations with respect to documents, instruments and
securities imposed by Sections 8-302, 9-304 and 9-309 of the UCC; (iv) the
provisions of Section 9-203 of the UCC relating to the time of attachment; and
(v) Section 552 of Title 11 of the United States Code (the "Bankruptcy Code")
with respect to any Collateral acquired by the Loan Parties subsequent to the
commencement of a case against or by the Loan Parties under the Bankruptcy Code.
We further assume (a) that all filings will be timely made and duly
filed as necessary (i) in the event of a change in the name, identity or
corporate structure of any Loan Party, (ii) in the event of a change in location
of the Collateral, or the location of the principal office of any Loan Party or
the place where any Loan Party keeps its books and records, and (iii) to
continue to maintain the effectiveness of the original filings, and (b) that any
money, instruments, documents or securities which may constitute part of the
Collateral are and will remain in the Administrative Agent's possession.
The opinions expressed herein are limited to the laws of the State
of New York, the Texas UCC, the corporate laws of the State of Delaware and the
federal laws of the United States, and we express no opinion as to the effect on
the matters covered by this letter of the laws of any other jurisdiction.
This opinion is rendered solely for your benefit and for the benefit
of your assignees and participants in connection with the transactions described
above. This opinion may not be used or relied upon by any other person and may
not be disclosed, quoted, filed with a governmental agency or otherwise referred
to without our prior written consent, except that copies of this opinion may be
furnished to your independent auditors, legal counsel and appropriate regulatory
authorities and pursuant to an order or legal process of any relevant
governmental authority.
Very truly yours,
Opinion of Special Counsel to the Credit Parties
EXHIBIT F
[Form of Opinion of Special New York Counsel to Chase]
June 29, 2000
To the Lenders party to the
Credit Agreement referred to
below and The Chase Manhattan Bank,
as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase Manhattan
Bank ("Chase") in connection with (i) the Third Amended and Restated Credit
Agreement dated as of June 29, 2000 (the "Credit Agreement") among United
Stationers Supply Co. (the "Company"), United Stationers Inc. (the "Guarantor"
and, together with the Company, the "Obligors"), the lenders named therein, and
Chase, as agent for said lenders (the "Administrative Agent") and (ii) the
various other agreements and other documents referred to in the next following
paragraph. Except as otherwise provided herein, terms defined in the Credit
Agreement are used herein as defined therein. This opinion letter is being
delivered pursuant to Section 7.01(d) of the Credit Agreement.
In rendering the opinions expressed below, we have examined the
following agreements (collectively, the "Credit Documents"):
(a) the Credit Agreement;
(b) the Security Agreement;
(c) the Pledge Agreement; and
(d) the Subsidiary Guarantee and Security Agreement.
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents
Opinion of Special New York Counsel to Chase
-2-
submitted to us as copies. When relevant facts were not independently
established, we have relied upon representations made in or pursuant to the
Credit Documents.
In rendering the opinions expressed below, we have assumed, with
respect to all of the Credit Documents, that:
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and (except to the extent set forth
in the opinions below as to the Obligors and the Subsidiary
Guarantors (collectively, the "Credit Parties")) constitute
legal, valid, binding and enforceable obligations of, all of
the parties to such documents;
(ii) all signatories to such documents have been duly authorized;
and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate
or other) to execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that each of the Credit Documents
constitutes the legal, valid and binding obligation of each Credit Party
thereto, enforceable against such Credit Party in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or other similar laws relating to or affecting
the rights of creditors generally and except as the enforceability of the Credit
Documents is subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including, without limitation, (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b) concepts of
materiality, reasonableness, good faith and fair dealing.
The foregoing opinion is subject to the following comments and
qualifications:
(A) The enforceability of Sections 6.03 and 12.03 of the Credit
Agreement (and any similar provisions in any of the other Credit
Documents) may be limited by laws limiting the enforceability of
provisions exculpating or exempting a party, or requiring indemnification
of a party, for liability for its own action or inaction, to the extent
the action or inaction involves gross negligence, recklessness, willful
misconduct or unlawful conduct.
(B) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of New
York) that limit the interest,
Opinion of Special New York Counsel to Chase
-3-
fees or other charges such Lender may impose, (ii) Section 4.07(c) of the
Credit Agreement or Section 3.07 of the Subsidiary Guarantee and Security
Agreement, (iii) the second sentence of Section 12.10 of the Credit
Agreement (and any similar provisions in any of the other Credit
Documents), insofar as such sentence relates to the subject matter
jurisdiction of the United States District Court for the Southern District
of New York to adjudicate any controversy related to any of the Credit
Documents and (iv) the waiver of inconvenient forum set forth in Section
12.10 of the Credit Agreement (and any similar provisions in any of the
other Credit Documents).
(D) Clause (iii) of the second sentence of Section 6.02 of the
Credit Agreement and of Section 3.02 of the Subsidiary Guarantee and
Security Agreement may not be enforceable to the extent that the
Guaranteed Obligations referred to therein are materially modified.
(E) We wish to point out that the obligations of the Credit Parties,
and the rights and remedies of the Administrative Agent and the Lenders,
under the Security Documents to which such Credit Parties are party may be
subject to possible limitations upon the exercise of remedial or
procedural provisions contained in such Security Documents, provided that
such limitations do not, in our opinion (but subject to the other comments
and qualifications set forth in this opinion letter), make the remedies
and procedures that will be afforded to the Administrative Agent and the
Lenders inadequate for the practical realization of the substantive
benefits purported to be provided to the Administrative Agent and the
Lenders by such Security Documents.
(F) We express no opinion as to the creation, perfection or priority
of any security interest purported to be created by any Security Document
or as to the existence of, or the right, title or interest of any Credit
Party in, to or under, any of the Collateral (as defined in the Security
Documents).
(G) We express no opinion as to the applicability to the obligations
of any Subsidiary Guarantor (or the enforceability of such obligations) of
Section 548 of the Bankruptcy Code, Article 10 of the New York Debtor and
Creditor Law or any other provision of law relating to fraudulent
conveyances, transfers or obligations.
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America and the law of the State of New York, and
we do not express any opinion as to the laws of any other jurisdiction.
Opinion of Special New York Counsel to Chase
-4-
At the request of our client, this opinion letter is, pursuant to
Section 7.01(d) of the Credit Agreement, provided to you by us in our capacity
as special New York counsel to Chase and may not be relied upon by any Person
for any purpose other than in connection with the transactions contemplated by
the Credit Agreement without, in each instance, our prior written consent.
Very truly yours,
WJM/PMM
Opinion of Special New York Counsel to Chase
EXHIBIT G
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Third Amended and Restated Credit Agreement
dated as of June 29, 2000 (as amended and in effect on the date hereof, the
"Credit Agreement"), among United Stationers Supply Co., United Stationers Inc.,
the Lenders named therein and The Chase Manhattan Bank, as Administrative Agent
for the Lenders. Terms defined in the Credit Agreement are used herein with the
same meanings.
The Assignor named below hereby sells and assigns, without recourse,
to the Assignee named below, and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the Assignment Date set
forth below, the interests set forth below (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement and the other
Credit Documents, including the interests set forth below in the Commitment of
the Assignor on the Assignment Date and Loans owing to the Assignor which are
outstanding on the Assignment Date, together with unpaid interest accrued on the
assigned Loans to the Assignment Date, and the amount, if any, set forth below
of the fees accrued to the Assignment Date for the account of the Assignor. The
Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From and
after the Assignment Date (i) the Assignee shall be a party to and be bound by
the provisions of the Credit Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent of the interests
assigned by this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a non-U.S. Person (as
defined in Section 5.07 of the Credit Agreement), any documentation required to
be delivered by the Assignee pursuant to Section 5.07 of the Credit Agreement,
duly completed and executed by the Assignee, and (ii) if the Assignee is not
already a Lender under the Credit Agreement, an Administrative Questionnaire in
the form supplied by the Administrative Agent, duly completed by the Assignee.
The [Assignee/Assignor] shall pay the fee payable to the Administrative Agent
pursuant to Section 12.06(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Assignment and Acceptance
-2-
Effective Date of Assignment
("Assignment Date"):
Percentage Assigned of
Loan/Commitment (set
forth, to at least 8
decimals, as a percentage
of the Loan and the
aggregate Commitments
Principal Amount of all Lenders
Facility Assigned thereunder )
-------- -------- ---------------------
Revolving Credit
Commitment Assigned: %
Tranche A Term Loan
Commitment Assigned:
Tranche A-1 Term Loan
Commitment Assigned:
Revolving Credit Loans Assigned:
Tranche A Term Loan Assigned:
Tranche A-1 Term Loan Assigned:
Fees Assigned (if any):
The terms set forth above and below are hereby agreed to:
[Name of Assignor], as Assignor
By:__________________________________
Name:
Title:
Assignment and Acceptance
-3-
[Name of Assignee], as Assignee
By:__________________________________
Name:
Title:
The undersigned hereby consent to the within assignment:(1)
UNITED STATIONERS SUPPLY CO.
By:_________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:_________________________
Name:
Title:
-------------------------------------
(1) Consents to be included to the extent required by Section 12.06(b) of the
Credit Agreement.
Assignment and Acceptance
EXHIBIT H
[Form of Guarantee Assumption Agreement]
GUARANTEE ASSUMPTION AGREEMENT
GUARANTEE ASSUMPTION AGREEMENT (this "Agreement") dated as of
________ __, ____ by [NAME OF ADDITIONAL SUBSIDIARY GUARANTOR], a ________
corporation (the "Additional Subsidiary Guarantor"), in favor of The Chase
Manhattan Bank, as administrative agent for the lenders or other financial
institutions or entities party as "Lenders" to the Credit Agreement referred to
below (in such capacity, together with its successors in such capacity, the
"Administrative Agent").
United Stationers Supply Co., United Stationers Inc., the Lenders
party thereto and the Administrative Agent, are parties to a Credit Agreement
dated as of June 29, 2000 (as modified and supplemented and in effect from time
to time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings.
Pursuant to Section 9.21(a) of the Credit Agreement, the Additional
Subsidiary Guarantor hereby agrees to become a "Subsidiary Guarantor" for all
purposes of the Credit Agreement, and a "Subsidiary Guarantor" and an "Issuer"
for all purposes of the Subsidiary Guarantee and Security Agreement (and hereby
supplements Annexes 1 through 6 to said Subsidiary Guarantee and Security
Agreement as specified in Appendix A). Without limiting the foregoing, the
Additional Subsidiary Guarantor hereby, jointly and severally with the other
Subsidiary Guarantors, guarantees to each Lender and the Administrative Agent
and their respective successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of all Guaranteed
Obligations (as defined in Section 3.01 of the Subsidiary Guarantee and Security
Agreement) in the same manner and to the same extent as is provided in Section 3
of the Subsidiary Guarantee and Security Agreement. In addition, the Additional
Subsidiary Guarantor hereby makes the representations and warranties set forth
in Section 2 of the Subsidiary Guarantee and Security Agreement, with respect to
itself and its obligations under this Agreement, as if each reference in such
Sections to the Credit Documents included reference to this Agreement.
The Additional Subsidiary Guarantor hereby instructs its counsel to
deliver the opinions referred to in Section 9.21(a) of the Credit Agreement to
the Lenders and the Administrative Agent.
Guarantee Assumption Agreement
-2-
IN WITNESS WHEREOF, the Additional Subsidiary Guarantor has caused
this Guarantee Assumption Agreement to be duly executed and delivered as of the
day and year first above written.
[NAME OF ADDITIONAL SUBSIDIARY
GUARANTOR]
By ________________________
Title:
Accepted and agreed:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By ________________________
Title:
Guarantee Assumption Agreement
Appendix A
SUPPLEMENTS TO ANNEXES TO SUBSIDIARY GUARANTEE
AND SECURITY AGREEMENT
Supplement to Annex 1:
[to be completed]
Supplement to Annex 2:
[to be completed]
Supplement to Annex 3:
[to be completed]
Supplement to Annex 4:
[to be completed]
Supplement to Annex 5:
[to be completed]
Supplement to Annex 6:
[to be completed]
Guarantee Assumption Agreement
ANNEX 1
PLEDGED STOCK
[See Section 2(b)]
Record of
Certificate Beneficial Number
Issuer Number Owner Shares Par Value Class
---------------------- ----------- ------------------ ------------ ------------ ----------
United Stationers Hong _______ United Stationers 649
Kong Limited Supply Co.
United Worldwide _______ United Stationers 649
Limited Supply Co.
▇▇▇▇▇▇▇ Bros., Inc. 90 United Stationers 2,088
Supply Co.
Azerty Incorporated C3 United Stationers 129 Common
Supply Co.
Azerty Incorporated C2 United Stationers 542.857 Common
Supply Co.
Azerty de Mexico, S.A. United Stationers 99% of 990 Class 2
de C.V. 01 Supply Co. shares
Azerty de Mexico, S.A. United Stationers no more Class 1
de C.V. 01 Supply Co. than 65% of
99 shares
Annex 1 to Security Agreement - Page 1
ANNEX 2
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
[See Section 2(d)]
Registration Effective
Title Date Filed No. Date
--------------------------------------- ---------------- --------------- ---------------
1. See Exhibit A attached hereto.
2. Other unregistered original works
of authorship
3. Consumer Sales Marketing Program TXV:548-226 11/20/92
Annex 2 to Security Agreement - Page 1
EXHIBIT A
CERTIFICATES OF REGISTRATION/UNITED STATES COPYRIGHT OFFICE
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Title of Work Date Applied For Registration No. Registration Date Comments
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Products 1999 TX4-258-463 9/22/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
USSC 1998 Oct-Dec Dealer Net Pricer TX4-857-522 9/22/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MU Computer Products TX4-819-062 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Matchbook Computer Supplies TX4-819-378 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Furniture TX4-818-476 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1998/USSC Jan-Mar '98 Dealer Net Pricer TX4-694-647 12/24/97
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
USSC 1998 GL Catalog TX4-690-436 12/11/97
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MU 1998 Computer Products Catalog TX4-690-950 12/11/97
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MU 1997 Oct-Dec Computer Products Price Book TX4-690-959 12/11/97
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1997 USSC Oct-Dec Dealer Net Pricer TX4-691-004 12/11/97
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MU 1997 Jul-Sep Computer Price Book TX4-670-664 10/27/97
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
USSC 1997 Jul-Sep Dealer Net Pricer TX4-562-705 10/27/97
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MU 1997 Apr-Jun Computer Products Price Book TX4-530-609 4/28/97
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1997 USSC Apr-Jun Dealer Net Pricer TX4-504-833 3/21/97
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1997 MU Computer Products Catalog TX4-418-869 1/7/97
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1997 MU Jan-Mar Computer Products Price Book TX4-402-446 1/7/97
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1997 USSC Jan-Mar Dealer Net Pricer TX4-415-515 1/7/97
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1997 USSC GL Catalog/Alpha Index TX4-377-282 9/20/96
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1997 USSC GL Catalog/Quick Find Directory TX4-377-283 9/20/06
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1996 MU Quarterly Source Book Jan-Mar TX4-366-726 9/5/96
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1996 MU Quarterly Source Book Apr-Jun TX4-366-727 9/5/96
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1996 MU Computer Products Catalog TX4-366-724 9/5/96
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1996 USSC GL Catalog/Quick Find Directory TX4-132-788 9/27/95
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1996 USSC GL Catalog/Alpha Product Directory TX4-122-825 9/27/95
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1996 USSC GL Catalog/Quick Find-Alpha Index TX4-122-915 9/27/95
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1995 Quarterly Source Book Jul-Sep TX4-112-533 7/17/95
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Purchase to Payment Guide TX4-084-723 7/10/95
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1995 MU Computer Products Dealer Net Pricer 12/28/94 Registration notice not
Jan-Mar received - ?
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1995 USSC GL Catalog/Quick Find Directory TX3-936-741 11/3/94
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1995 USSC GL Catalog/Office Products TX3-929-496 11/3/94
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1994 MU Computer Products Dealer Net Pricer TX3-913-103 10/12/94
Oct-Dec
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Electronic Management Systems/Your Complete TX3-859-397 7/25/94
Business Advantage
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1994 MU Computer Products Dealer Net Pricer TX3-859-313 7/12/94
Jul-Sep
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1994 MU Computer Products Dealer Net Pricer TX3-844-165 5/11/94 Two Versions
Apr-Jun
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Page 2
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Title of Work Date Applied For Registration No. Registration Date Comments
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Products 1999 TX4-258-463 9/22/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
USSC 1998 Oct-Dec Dealer Net Pricer TX4-857-522 9/22/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MU Computer Products TX4-819-062 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Matchbook Computer Supplies TX4-819-378 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Furniture TX4-818-476 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1994 MU Computer Products Dealer Net Pricer TX3-844-164 5/11/94 Two Versions
Apr-Jun
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
UNITERM TX3-783-441 2/17/94
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Payment By Receipt TX3-730-184 2/17/94
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Customer Label System TX3-756-732 2/17/94
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1994 Sanitary & Maintenance Supply Catalog TX3-720-944 2/17/94
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1994 MU Computer Products Catalog TX3-757-483 2/17/94
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1994 Office Furniture Catalog TX3-720-945 2/17/94
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1994 USSC GL Catalog/Quick Find Directory TX3-735-859 9/22/93
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1994 USSC GL Catalog/Office Products Catalog TX3-735-855 9/22/93
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
▇▇▇▇▇ Computer Software Program & Documentation TX3-313-950 4/29/92
& Training Manuals
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1993 MU Computer Products Catalog TX3-443-910 10/29/92
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MATCHBOOK Computer Supplies & Accessories Oct TX3-443-909 10/29/92
1992-Mar 1993
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1993 USSC GL Catalog TX3-433-966 10/29/92
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MATCHBOOK Computer Supplies & Accessories TX3-433-908 10/29/92
Apr-Sep 1992
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1992 USSC GL Catalog TX3-299-391 4/29/92
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1992 USSC Dealer Net Pricer TX3-080 108 4/22/91
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
9 to 5 TX3 050 500 4/22/91
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Innovations TX3 050 497 4/22/91
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ 050 498 4/22/91
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Today's Workplace TX3 050 499 4/22/91
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Accounts Receivable Quick Reference Manual TX3 000 835 1/2/91
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
A/R System Accounts Receivable Participant Guide TX3 049 219 1/2/91
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
A/R System Training Instructor Guide TX3 000 879 1/2/91
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Selling Skills/Volume 1 TX2 950 470 11/7/90
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1991 USSC GL Catalog TX2 900 077 9/7/90
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1990 USSC GL Catalog TX 2 738 376 10/13/89
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1989 USSC GL Catalog TX 2 382 245 8/22/88
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1988 USSC Office Furniture Catalog TX2 179 060 11/2/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Stationers Price Tag TX2 167 491 10/15/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Stationers Red Tag TX2 179 838 10/15/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Page 3
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Title of Work Date Applied For Registration No. Registration Date Comments
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Products 1999 TX4-258-463 9/22/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
USSC 1998 Oct-Dec Dealer Net Pricer TX4-857-522 9/22/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MU Computer Products TX4-819-062 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Matchbook Computer Supplies TX4-819-378 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Furniture TX4-818-476 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Stationers Impact Flyer TX2 179 837 10/15/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
USSC 1988 Computer Accessories TX2 167 493 10/14/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MU Computer Products Fall/Winter 1987-1988 TX2 167 492 10/14/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
USSC 1988 Basic Office Needs TX2 172 284 10/14/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
USSC 1988 GL Catalog TX2 204 237 10/14/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Cost & Sell Dealer Net Pricer/May 1-Jun 30, 1987 TX2 077 011 5/26/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
USSC 1988 GL Catalog TX2 204 237 10/14/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MATCHBOOK Computer Supplies 1987 TX2 076 889 5/26/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Red Tag Sale on Office Supplies TX2 025 635 3/11/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Products Price Tag Sale TX2 026 206 3/11/87
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Products Sale TX1 979 469 12/11/86
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Computer Products Sale TX1 972 211 12/11/86
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Red Tag Office Supply Sale TX1 941 094 10/29/86
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Impact - Get Ready For A New Year Sale TX1 929 453 10/27/86
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1986-1987 MU Computer Products Catalog TX1 929 215 10/27/86
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1987 Computer Products Catalog TX1 941 449 10/27/86
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Price Tag Sale of Office Products TX1 929 579 10/27/86
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1987 Office Furniture Catalog TX1 929 216 10/27/86
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Oct 1986 Office Products Pocket Pricing Guide TX1 930 529 10/27/86
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1986 Cost & Sell Dealer Net Pricer/Sep-Oct 1986 TX1 934 044 10/24/86
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1987 Basic Office Needs Catalog TX1 938 655 10/24/86
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1987 Office Products Catalog TX1 917 621 9/25/86
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1986 MU Computer Products Catalog TX1 918 408 11/18/85
------------------------------------------------- ------------------ ------------------ ------------------ -------------------------
1986 Basic Office Needs Catalog TX1 705 156 11/18/85
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1986 Office Furniture Catalog TX1 711 405 11/18/85
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1986 Office Products Catalog TX1 714 547 11/18/85
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1986 Information Systems Supplies Catalog TX1 918 409 11/19/85
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Impact Spring 1985 TX1 596 541 5/13/85
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Impact Plus - Terrific Buys on Computer TX1 596 542 5/13/85
Supplies
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MU Impact Plus Flyer TX1 596 540 5/13/85
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Office Products 1985 Catalog TX1 575 872 5/13/85
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Red Tag Sale Flyer TX1 596 544 5/13/85 Two versions
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Page 4
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Title of Work Date Applied For Registration No. Registration Date Comments
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Products 1999 TX4-258-463 9/22/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
USSC 1998 Oct-Dec Dealer Net Pricer TX4-857-522 9/22/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MU Computer Products TX4-819-062 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Matchbook Computer Supplies TX4-819-378 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Furniture TX4-818-476 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Red Tag Sale Flyer TX1 596 543 5/13/85 Two versions
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1985 MU Computer Products Catalog TX1 596 538 5/13/85
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1985 MATCHBOOK Computer Supplies/Vol II TX1 576 366 5/13/85
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
File Under Savings TX1 596 539 5/13/85
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1984 Cost `N Sell Pricing Guide - Oct `84 TX1 461 453 10/22/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1985 Information Systems Supplies Catalog TX1 429 825 10/11/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1985 Office Furniture Catalog TX1 471 117 10/11/85
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
ISS MATCHBOOK 1985/Volume One TX1 451 858 11/1/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Pricebusters Sale TX1 463 710 10/19/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
ISS MATCHBOOK 1984/Volume Two TX1 324 272 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Added Emphasis Jan-Feb 1984 TX1 301 136 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Stationers 1984 Product List TX1 301 134 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Basic Office Needs 1984 Catalog TX1 301 129 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1984 Office Furniture Catalog TX1 301 135 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1984 Information Systems Supplies Catalog TX1 301 128 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1984 Catalog Pricing Service TX1 301 143 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Added Emphasis Nov-Dec 1983 TX1 301 139 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Stationers 1984 Dealer Net Pricer TX1 301 141 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Products 1984 Catalog TX1 301 132 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1983 Pricing Pocket Guide TX1 301 126 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
ISS MATCHBOOK 1984/Volume One TX1 324 271 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Price Tag Sale of Office Products TX1 301 137 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Red Tag Sale of Office Products TX1 301 138 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Stationers 1983 Product List TX1 301 133 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Basic Office Needs 1983 Catalog TX1 301 131 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1983 Information Systems Supplies Catalog TX1 391 130 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1983 Office Furniture Catalog TX1 301 140 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Stationers 1983 Dealer Net Pricer TX1 301 142 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Products 1983 Catalog TX1 301 077 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1982 Pocket Pricing Guide TX1 301 127 3/9/84
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Stationers 1982 Product List TX1 840 060 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1992 Office Furniture Catalog TX1 840 057 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Page 5
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Title of Work Date Applied For Registration No. Registration Date Comments
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Products 1999 TX4-258-463 9/22/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
USSC 1998 Oct-Dec Dealer Net Pricer TX4-857-522 9/22/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
MU Computer Products TX4-819-062 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Matchbook Computer Supplies TX4-819-378 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Furniture TX4-818-476 7/16/98
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1982 Information Systems Supplies TX1 840 054 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Basic Office Needs 1982 Catalog TX1 840 062 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Stationers 1982 Dealer Net Pricer TX1 840 063 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Products 1982 Catalog TX1 840 059 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Price Tag Sale of Office Products TX1 849 570 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Price Tag Sale of Office Products TX1 840 051 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Red Tag Sale of Office Products TX1 840 052 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
Office Furnishings 1981 TX1 840 053 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1981 Information Systems Supplies TX1 840 056 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
United Stationers 1981 Product List TX1 840 061 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1981 Basic Office Needs Directory TX1 840 055 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
1981 Office Products Catalog TX1 840 058 2/1/82
-------------------------------------------------- ------------------ ------------------ ------------------ ------------------------
ANNEX 3
LIST OF PATENTS AND PATENT APPLICATIONS
[See Section 2(d)]
None
Annex 3 to Security Agreement - Page 1
ANNEX 4
LIST OF TRADE NAMES, TRADEMARKS, SERVICE MARKS,
TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS
[See Section 2(d)]
See Exhibit A attached hereto.
Annex 4 to Security Agreement - Page 1
ANNEX 5
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
[See Section 2(d), (e) and (f)]
1. All-Value Dealers have rights to use the ▇▇▇▇ ALL-VALUE
2. Rights to ▇▇▇▇▇▇▇ legal Forms under Agreement between ▇.▇. ▇▇▇▇▇▇▇ Co.,
Inc. and ▇▇▇▇-▇▇▇▇▇▇▇ Corp.
3. Service ▇▇▇▇ License Agreement dated January 18, 1994 between ▇▇▇▇-▇▇▇▇▇▇▇
Corp. and Order F.
Annex 5 to Security Agreement - Page 1
ANNEX 6
LIST OF LOCATIONS
[See Section 5.07]
United Stationers Inc.
NONE
United Stationers Supply Co.
Arizona
Leasehold
o Tempe - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
o Tempe - ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇
Fee Owned
o City of Industry (Los Angeles area) - ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Leasehold
o City of Industry (Los Angeles area) - ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
o North Highland - 3030 Orange Grove
o Sacramento - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
o Sacramento - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
Fee Owned
o Denver - ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
Leasehold
o Building D-3, SW Corner of 47th and ▇▇▇▇▇▇▇▇ Street (Commencement
Date of 2/1/01)
o Denver - ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
o Denver - ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Leasehold
o North Branford - 104-5 Branford
Florida
Fee Owned
o Jacksonville - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Annex 6 to Security Agreement - Page 1
o Tampa - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Leasehold
o Ft. Lauderdale - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fee Owned
o Norcross (Atlanta area) - 6448 Best Friend Road
Illinois
Fee Owned
o Des Plaines - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇ (▇▇. ▇▇▇▇▇ ▇▇▇▇) - 2000 Wolf Business Park
Leasehold
o Bloomingdale - ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇
o ▇▇▇▇▇ Stream - 898 ▇▇▇▇▇ Court
o ▇▇▇▇▇ Stream - ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
o Des Plaines - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
o Mount Prospect - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
Fee Owned
o Indianapolis - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Leasehold
o Lafayette - ▇▇▇ ▇.▇. ▇▇▇▇▇▇
o Harahan - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
o New Orleans - ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇ ▇▇▇▇) - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Leasehold
o Elkridge - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇ ▇▇▇▇) - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
o Hanover - ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇-▇
Annex 6 to Security Agreement - Page ▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇) - ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Leasehold
o Haverhill - ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
Fee Owned
o Livonia (Detroit area) - ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Fee Owned
o Brooklyn Park (St. ▇▇▇▇ area) - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇) - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
Leasehold
o Kansas City - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Leasehold
o Butte - ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
Fee Owned
o Edison (New York area) - ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇) - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Leasehold
o Edison - ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
o Edison - ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
o Pennsauken - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
Fee Owned
o Coxsackie (Albany area) - ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fee Owned
Annex 6 to Security Agreement - Page 3
o Charlotte - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇ ▇▇▇▇ III
Leasehold
o Charlotte - ▇▇▇▇▇-▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇.
o Charlotte - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
Fee Owned
o Sharonville (Cincinnati area) - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇ ▇▇▇▇) - ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Leasehold
o Columbus - ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
o Twinsburg - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇
Fee Owned
o Tulsa - 1870 North 109th East Avenue
Leasehold
o Tulsa - ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Leasehold
o Portland - ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
o Milwaukie - ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇
Leasehold
o Warrendale (Pittsburgh area) - ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Leasehold
o Memphis - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
o Memphis - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
o Nashville - ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇
Fee Owned
o Dallas - ▇▇▇ ▇▇▇▇▇ ▇▇▇
Leasehold
Annex 6 to Security Agreement - Page 4
o Dallas - ▇▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
o Dallas - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
o Houston - ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
o Irving - ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
o Lubbock - ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
o San Antonio - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
Leasehold
o Salt Lake City - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Leasehold
o Charlottesville - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Leasehold
o Tukwila - ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇
o Tukwila - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Fee Owned
o Milwaukee - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Leasehold
o Milwaukee - ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Leasehold
o ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇ of Vaughn, Woodbridge, Ontario L4L 5V4
Hong Kong
Leasehold
o ▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇) - ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Annex 6 to Security Agreement - Page 5
Offsite Storage of Books and Records
o The File Roomm ▇▇▇ ▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[▇▇▇▇ County]
o Federal Record Storage Co.
▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Printer
o General Catalogues Printed and Bound
o Quebecor World
Augusta, Georgia
[Richmond County]
o Specialty Catalogues
o Quebecor Color
Jonesboro, Arkansas
[▇▇▇▇▇▇▇▇▇ County]
o Quebecor Color
Brookfield, Wisconsin
[Waukesha County]
Staging Locations
o Dohrn Transfer
▇▇▇ ▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
o Pak Dedicated
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇
▇ ▇▇▇▇▇▇▇ Trucking
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
o AGX
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇
Annex 6 to Security Agreement - Page 6
o Logistics Group
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
o Later Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
o Quicksend
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
o DEPENDABLE
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
o AM Freight
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇
o Tri-State
▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇
o F/X Inc.
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ Dist.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
o Richmond Bonded
▇-▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇
o Drug Trans Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇
Annex 6 to Security Agreement - Page 7