1
EXHIBIT 10.47
EXHIBIT H
SECURITY AGREEMENT
among
UNIVERSAL COMPRESSION HOLDINGS, INC.,
UNIVERSAL COMPRESSION, INC.,
CERTAIN OF ITS SUBSIDIARIES
and
BANKERS TRUST COMPANY,
as Collateral Agent
Dated as of May ___, 2000
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TABLE OF CONTENTS
Page
ARTICLE I
SECURITY INTERESTS ............................................ 2
1.1. Grant of Security Interests ............................. 2
1.2. Power of Attorney ....................................... 2
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS ............. 3
2.1. Necessary Filings ....................................... 3
2.2. No Liens ................................................ 3
2.3. Other Financing Statements .............................. 3
2.4. Chief Executive Office; Records ......................... 3
2.5. Location of Inventory and Equipment ..................... 4
2.6. Recourse ................................................ 4
2.7. Trade Names; Change of Name ............................. 4
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS ..................... 5
3.1. Additional Representations and Warranties ............... 5
3.2. Maintenance of Records .................................. 5
3.3. Direction to Account Debtors; Contracting Parties; etc .. 6
3.4. Modification of Terms; etc .............................. 6
3.5. Collection .............................................. 6
3.6. Instruments ............................................. 6
3.7. Further Actions ......................................... 7
ARTICLE IV
SPECIAL PROVISIONS CONCERNING MARKS ........................... 7
4.1. Additional Representations and Warranties ............... 7
4.2. Licenses and Assignments ................................ 7
4.3. Infringements ........................................... 7
4.4. Preservation of Marks ................................... 8
4.5. Maintenance of Registration ............................. 8
4.6. Future Registered Marks ................................. 8
4.7. Remedies ................................................ 8
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ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS AND COPYRIGHTS ....................................... 9
5.1. Additional Representations and Warranties .............. 9
5.2. Licenses and Assignments ............................... 9
5.3. Infringements .......................................... 9
5.4. Maintenance of Patent .................................. 9
5.5. Prosecution of Patent Application ...................... 9
5.6. Other Patents and Copyrights ........................... 10
5.7. Remedies ............................................... 10
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL ......................... 10
6.1. Protection of Collateral Agent's Security .............. 10
6.2. Warehouse Receipts Non-negotiable ...................... 10
6.3. Further Actions ........................................ 11
6.4. Financing Statements ................................... 11
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT ................. 11
7.1. Remedies; Obtaining the Collateral Upon Default ........ 11
7.2. Remedies; Disposition of the Collateral ................ 12
7.3. Waiver of Claims ....................................... 13
7.4. Application of Proceeds ................................ 14
7.5. Remedies Cumulative .................................... 16
7.6. Discontinuance of Proceedings .......................... 16
ARTICLE VIII
INDEMNITY .................................................... 17
8.1. Indemnity .............................................. 17
8.2. Indemnity Obligations Secured by Collateral; Survival .. 18
(ii)
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ARTICLE IX
DEFINITIONS .................................................. 18
ARTICLE X
THE COLLATERAL AGENT ......................................... 23
10.1. Appointment ........................................... 23
10.2. Nature of Duties ...................................... 23
10.3. Lack of Reliance on the Collateral Agent .............. 24
10.4. Certain Rights of the Collateral Agent ................ 24
10.5. Reliance .............................................. 24
10.6. Indemnification ....................................... 25
10.7. The Collateral Agent in its Individual Capacity ....... 25
10.8. Holders ............................................... 25
10.9. Resignation by the Collateral Agent ................... 26
10.10. Fees and Expenses of Collateral Agent ................ 26
ARTICLE XI
MISCELLANEOUS ................................................ 26
11.1. Notices ............................................... 27
11.2. Waiver; Amendment ..................................... 27
11.3. Obligations Absolute .................................. 27
11.4. Successors and Assigns ................................ 28
11.5. Headings Descriptive .................................. 28
11.6. Severability .......................................... 28
11.7. GOVERNING LAW ......................................... 28
11.8. Assignor's Duties ..................................... 28
11.9. Termination; Release .................................. 28
11.10. Counterparts ......................................... 29
11.11. Additional Assignors .......................................... 29
ANNEX A Schedule of Chief Executive Offices/Record Locations
ANNEX B Schedule of Inventory and Equipment Locations
ANNEX C Schedule of Trade, Fictitious and Other Names
ANNEX D Schedule of Marks
(iii)
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PAGE
ANNEX E Schedule of License Agreements and Assignments
ANNEX F Schedule of Patents and Applications
ANNEX G Schedule of Copyrights and Applications
ANNEX H Form of Assignment of Security Interest in United
States Trademarks and Patents
ANNEX I Form of Assignment of Security Interest in United
States Copyrights
(iv)
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SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of May ___, 2000, between each of the
undersigned assignors (each an "Assignor" and together with any other entity
that becomes an assignor hereunder pursuant to Section 11.11 hereof, the
"Assignors") in favor of BANKERS TRUST COMPANY, as Collateral Agent (the
"Collateral Agent") for the benefit of the Secured Creditors (as defined below).
Except as otherwise defined herein, terms used herein and defined in the Credit
Agreement shall be used herein as so defined.
W I T N E S S E T H :
WHEREAS, Universal Compression Holdings, Inc. ("Holdings"), Universal
Compression, Inc. (the "Borrower"), the lenders from time to time party thereto
(the "Lenders"), Deutsche Bank Securities Inc., as Lead Arranger and Bankers
Trust Company, as Administrative Agent (together with any successor
administrative agent, the "Administrative Agent"), have entered into a Credit
Agreement, dated as of May ___, 2000 (as amended, modified or supplemented from
time to time, the "Credit Agreement"), providing for the making of Loans to, and
the issuance of Letters of Credit for the account of, the Borrower as
contemplated therein (the Lenders, the Administrative Agent and the Pledgee are
herein called the "Lender Creditors");
WHEREAS, the Borrower may at any time and from time to time enter into one
or more Interest Rate Protection Agreements or Other Hedging Agreements with one
or more Lenders or any affiliate thereof (each such Lender or affiliate, even if
the respective Lender subsequently ceases to be a Lender under the Credit
Agreement for any reason, together with such Lender's or affiliate's successors
and assigns, if any, collectively, the "Other Creditors," and together with the
Lender Creditors, the "Secured Creditors");
WHEREAS, the Borrower may, with the written consent of the Collateral
Agent, at any time and from time to time enter into, or guarantee obligations of
its Subsidiaries under, one or more Interest Rate Protection Agreements or Other
Hedging Agreements with one or more Other Creditors;
WHEREAS, pursuant to the Holdings Guaranty, Holdings has guaranteed to the
Secured Creditors the payment when due of all of the Guaranteed Obligations as
described therein;
WHEREAS, pursuant to, and after the execution and delivery of, the
Subsidiary Guaranty, each Subsidiary Guarantor has jointly and severally
guaranteed to the Secured Creditors the payment when due of all Guaranteed
Obligations as described therein;
WHEREAS, it is a condition precedent to the making of Loans to, and the
issuance of Letters of Credit for the account of, the Borrower under the Credit
Agreement that each Assignor shall have created and delivered to the Collateral
Agent this Agreement; and
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WHEREAS, each Assignor will obtain benefits from the incurrence of Loans
to, and the issuance of Letters of Credit for the account of, the Borrower under
the Credit Agreement and the entering into by the Borrower of Interest Rate
Protection Agreements or Other Hedging Agreements and, accordingly, each
Assignor desires to enter into this Agreement in order to satisfy the condition
described in the preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each Assignor,
the receipt and sufficiency of which are hereby acknowledged, each Assignor
hereby makes the following representations and warranties to the Collateral
Agent for the benefit of the Secured Creditors and hereby covenants and agrees
with the Collateral Agent for the benefit of the Secured Creditors as follows:
ARTICLE I
SECURITY INTERESTS
1.1. Grant of Security Interests. (a) As security for the prompt and
complete payment and performance when due of all of the Obligations, each
Assignor does hereby sell, assign and transfer unto the Collateral Agent, and
does hereby grant to the Collateral Agent for the benefit of the Secured
Creditors, a continuing security interest of first priority (subject to
Permitted Liens) in, all of the right, title and interest of the Assignor in, to
and under all of the following (in each case, to the extent not subject to any
liens created pursuant to the Synthetic Lease Financing Documents), whether now
existing or hereafter from time to time acquired: (i) each and every Receivable,
(ii) all Contracts, together with all Contract Rights arising thereunder, (iii)
all Inventory, (iv) the Cash Collateral Account and all monies, securities and
instruments deposited or required to be deposited in such Cash Collateral
Account, (v) all Equipment, (vi) all Marks, together with the registrations and
right to all renewals thereof, and the goodwill of the business of the Assignor
symbolized by the Marks, (vii) all Patents and Copyrights, and all reissues,
renewals or extensions thereof, (viii) all Intellectual Property Licensee
Rights, (ix) all computer programs of such Assignor and all intellectual
property rights therein and all other proprietary information of such Assignor,
including, but not limited to, Trade Secrets, (x) all other Goods, General
Intangibles, Chattel Paper, Documents and Instruments (other than the Pledged
Securities), and (xi) all Proceeds and products of any and all of the foregoing
(all of the above, collectively, the "Collateral").
(b) The security interests of the Collateral Agent under this Agreement
extend to all Collateral of the kind which is the subject of this Agreement
which the Assignor may acquire at any time during the continuation of this
Agreement.
1.2. Power of Attorney. Each Assignor hereby constitutes and appoints the
Collateral Agent its true and lawful attorney, irrevocably, with full power
after the occurrence of and during the continuance of an Event of Default (in
the name of the Assignor or otherwise), in the Collateral Agent's discretion, to
take any action and to execute any instrument which the Collateral Agent may
reasonably deem necessary or advisable to accomplish the purposes of this
Agreement, which appointment as attorney is coupled with an interest.
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ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which representations,
warranties and covenants shall survive execution and delivery of this Agreement,
as follows:
2.1. Necessary Filings. All filings, registrations and recordings necessary
to create, preserve, protect and perfect the security interest granted by such
Assignor to the Collateral Agent hereby in respect of the Collateral have been
or shall have been accomplished and the security interest granted to the
Collateral Agent pursuant to this Agreement in and to such Collateral
constitutes or shall constitute a perfected security interest therein prior to
the rights of all other Persons therein and subject to no other Liens (other
than Permitted Liens ) and is or shall be entitled to all the rights, priorities
and benefits afforded by the Uniform Commercial Code or other relevant law as
enacted in any relevant jurisdiction to perfected security interests.
2.2. No Liens. Each Assignor is, and as to Collateral acquired by it from
time to time after the date hereof the Assignor will be, the owner of all
Collateral free from any Lien, security interest, encumbrance or other right,
title or interest of any Person (other than Liens created hereby or Permitted
Liens), and such Assignor shall defend the Collateral against all claims and
demands (other than immaterial claims and demands) of all Persons at any time
claiming the same or any interest therein adverse to the Collateral Agent.
2.3. Other Financing Statements. As of the date hereof, there is no
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) on file or of record in any relevant jurisdiction
covering or purporting to cover any interest of any kind in the Collateral
(other than financing statements filed in respect of Permitted Liens), and so
long as the Termination Date has not occurred, each Assignor will not execute or
authorize to be filed in any public office any financing statement (or similar
statement or instrument of registration under the law of any jurisdiction) or
statements relating to the Collateral, except financing statements filed or to
be filed in respect of and covering the security interests granted hereby by
such Assignor or in connection with Permitted Liens.
2.4. Chief Executive Office; Records. The chief executive office of each
Assignor is located at the address set forth on Annex A for such Assignor. No
Assignor will move its chief executive office except to such new location as
such Assignor may establish in accordance with the last sentence of this Section
2.4. The originals of all documents evidencing all Receivables and Contract
Rights and Trade Secrets of each Assignor and the only original books of account
and records of such Assignor relating thereto are, and will continue to be, kept
at such chief executive office, at such other locations shown on Annex A hereto
or at such new locations as such Assignor may establish in accordance with the
last sentence of this Section 2.4. All Receivables and Contract Rights of each
Assignor are, and will continue to be, maintained at, and controlled and
directed (including, without limitation, for general accounting purposes) from,
the office locations described above. No Assignor shall establish new locations
for such offices until (i) it shall have given to the Collateral Agent not less
than 30 days' prior written notice of its intention so to do, clearly describing
such new location and providing such other information
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in connection therewith as the Collateral Agent may reasonably request, (ii)
with respect to such new location, it shall have taken all necessary action to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect and (iii) at the request of the Collateral Agent, it shall have furnished
an opinion of counsel acceptable to the Collateral Agent to the effect that all
financing or continuation statements and amendments or supplements thereto have
been filed in the appropriate filing office or offices, and all other necessary
actions (including, without limitation, the payment of all filing fees and
taxes, if any, payable in connection with such filings) have been taken, in
order to perfect (and maintain the perfection and priority of) the security
interest granted hereby.
2.5. Location of Inventory and Equipment. All Inventory and Equipment held
on the date hereof by each Assignor is located at one of the locations shown on
Annex B hereto. Each Assignor agrees that all Inventory and all Equipment now
held or subsequently acquired by it shall be kept at (or shall be in transport
to) any one of the locations shown on Annex B hereto, or such new location as
such Assignor may establish in accordance with the last sentence of this Section
2.5. Any Assignor may establish a new location for Inventory and Equipment only
if (i) it shall have given to the Collateral Agent not less than 30 days' prior
written notice of its intention so to do, clearly describing such new location
and providing such other information in connection therewith as the Collateral
Agent may reasonably request, (ii) with respect to such new location, as
promptly as practicable and in no event later than 30 days after the
establishment thereof, it shall have taken all necessary action to maintain the
security interest of the Collateral Agent in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect and
(iii) at the request of the Collateral Agent, it shall have furnished an opinion
of counsel acceptable to the Collateral Agent to the effect that all financing
or continuation statements and amendments or supplements thereto have been filed
in the appropriate filing office or offices, and all other necessary actions
(including, without limitation, the payment of all filing fees and taxes, if
any, payable in connection with such filings) have been taken, in order to
perfect (and maintain the perfection and priority of) the security interest
granted hereby.
2.6. Recourse. This Agreement is made with full recourse to each Assignor
and pursuant to and upon all the warranties, representations, covenants and
agreements on the part of such Assignor contained herein, in the other Credit
Documents, in the Interest Rate Protection Agreements or Other Hedging
Agreements (collectively, the "Financing Documents") and otherwise in writing in
connection herewith or therewith.
2.7. Trade Names; Change of Name. Each Assignor does not have or operate in
any jurisdiction under, or in the preceding 12 months has not had or has not
operated in any jurisdiction under, any trade names, fictitious names or other
names (including, without limitation, any names of divisions or operations)
except its legal name and such other trade, fictitious or other names as are
listed on Annex C hereto. No Assignor shall change its legal name or assume or
operate in any jurisdiction under any trade, fictitious or other name except
those names listed on Annex C hereto and new names (including, without
limitation, any names of divisions or operations) established in accordance with
the last sentence of this Section 2.7.
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No Assignor shall assume or operate in any jurisdiction under any new trade,
fictitious or other name until (i) it shall have given to the Collateral Agent
not less than 30 days' prior written notice of its intention so to do, clearly
describing such new name and the jurisdictions in which such new name shall be
used and providing such other information in connection therewith as the
Collateral Agent may reasonably request, (ii) with respect to such new name, it
shall have taken all necessary action to maintain the security interest of the
Collateral Agent in the Collateral intended to be granted hereby at all times
fully perfected and in full force and effect and (iii) at the request of the
Collateral Agent, it shall have furnished an opinion of counsel acceptable to
the Collateral Agent to the effect that all financing or continuation statements
and amendments or supplements thereto have been filed in the appropriate filing
office or offices, and all other necessary actions (including, without
limitation, the payment of all filing fees and taxes, if any, payable in
connection with such filings) have been taken, in order to perfect (and maintain
the perfection and priority of) the security interest granted hereby.
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS
3.1. Additional Representations and Warranties. As of the time when each of
its Receivables arises, each Assignor shall be deemed to have represented and
warranted that such Receivable, and all records, papers and documents relating
thereto (if any) are genuine and in all respects what they purport to be, and
that all papers and documents (if any) relating thereto (i) will represent the
genuine, legal and valid obligation of the account debtor evidencing
indebtedness unpaid and owed by the respective account debtor arising out of the
performance of labor or services or the sale or lease and delivery of the
merchandise listed therein, or both, (ii) will be the only original writings
evidencing and embodying such obligation of the account debtor named therein
(other than copies created for general accounting purposes) and (iii) will
evidence true and valid obligations.
3.2. Maintenance of Records. Each Assignor will keep and maintain at its
own cost and expense satisfactory and complete records of its Receivables and
Contracts, including, but not limited to, the originals of all documentation
(including each Contract) with respect thereto, records of all payments
received, all credits granted thereon, all merchandise returned and all other
dealings therewith, and each Assignor will make the same available on such
Assignor's premises to the Collateral Agent for inspection, at such Assignor's
own cost and expense, at any and all reasonable times upon two Business Days'
prior notice and otherwise in accordance with Section 8.02 of the Credit
Agreement. Upon the occurrence and during the continuance of an Event of Default
and upon the request of the Collateral Agent, each Assignor shall, at its own
cost and expense, deliver all tangible evidence of its Receivables and Contract
Rights (including, without limitation, all documents evidencing the Receivables
and all Contracts) and such books and records to the Collateral Agent or to its
representatives (copies of which evidence and books and records may be retained
by such Assignor) . Upon the occurrence and during the continuance of an Event
of Default, and if the Collateral Agent so directs, each Assignor shall legend,
in form and manner reasonably satisfactory to the Collateral Agent, the
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Receivables and the Contracts, as well as books, records and documents of such
Assignor evidencing or pertaining to such Receivables and Contracts with an
appropriate reference to the fact that such Receivables and Contracts have been
assigned to the Collateral Agent and that the Collateral Agent has a security
interest therein.
3.3. Direction to Account Debtors; Contracting Parties; etc. Upon the
occurrence and during the continuance of an Event of Default, and if the
Collateral Agent so directs any Assignor, each Assignor agrees (x) to cause all
payments on account of the Receivables and Contracts to be made directly to the
Cash Collateral Account, (y) that the Collateral Agent may, at its option,
directly notify the obligors with respect to any Receivables and/or under any
Contracts to make payments with respect thereto as provided in the preceding
clause (x) and (z) that the Collateral Agent may enforce collection of any such
Receivables and Contracts and may adjust, settle or compromise the amount of
payment thereof, in the same manner and to the same extent that such Assignor
might have done. Without notice to or assent by any Assignor, the Collateral
Agent may apply any or all amounts then in, or thereafter deposited in, the Cash
Collateral Account in the manner provided in Section 7.4 of this Agreement. The
costs and expenses (including reasonable attorneys' fees) of collection, whether
incurred by any Assignor or the Collateral Agent, shall be borne by the relevant
Assignor.
3.4. Modification of Terms; etc. No Assignor shall rescind or cancel any
indebtedness evidenced by any Receivable or under any Contract, or modify any
term relating to such indebtedness or make any adjustment with respect thereto,
or extend or renew the same, or compromise or settle any material dispute,
claim, suit or legal proceeding relating thereto, or sell any Receivable or
Contract, or interest therein, without the prior written consent of the
Collateral Agent, except as permitted by Section 3.5. Each Assignor will duly
fulfill all obligations on its part to be fulfilled under or in connection with
the Receivables and Contracts and, except as otherwise expressly permitted
herein, will do nothing to impair the rights of the Collateral Agent in the
Receivables or Contracts.
3.5. Collection. Each Assignor shall endeavor to cause to be collected from
the account debtor named in each of its Receivables or obligor under any
Contract, as and when due (including, without limitation, amounts which are
delinquent, such amounts to be collected in accordance with generally accepted
lawful collection procedures) any and all amounts owing under or on account of
such Receivable or Contract, and apply forthwith upon receipt thereof all such
amounts as are so collected to the outstanding balance of such Receivable or
under such Contract, except that, prior to the occurrence of an Event of
Default, any Assignor may allow in the ordinary course of business as
adjustments to amounts owing under its Receivables and Contracts (i) an
extension or renewal of the time or times of payment, or settlement for less
than the total unpaid balance, which such Assignor finds appropriate in
accordance with sound business judgment and (ii) a refund or credit due as a
result of returned or damaged merchandise or improperly performed services. The
costs and expenses (including, without limitation, reasonable attorneys' fees)
of collection, whether incurred by any Assignor or the Collateral Agent, shall
be borne by the relevant Assignor.
3.6. Instruments. If any Assignor owns or acquires any Instrument
constituting Collateral, such Assignor will within ten days notify the
Collateral Agent thereof, and upon the
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occurrence and during the continuance of an Event of Default and if requested by
the Collateral Agent will promptly deliver such Instrument to the Collateral
Agent appropriately endorsed to the order of the Collateral Agent as further
security hereunder.
3.7. Further Actions. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to its Receivables, Contracts, Instruments and other property or
rights covered by the security interest hereby granted, as the Collateral Agent
may reasonably require.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING MARKS
4.1. Additional Representations and Warranties. Each Assignor represents
and warrants that it is the true and lawful exclusive owner of the Marks listed
in Annex D hereto and that said listed Marks include all the United States
federal registrations or applications registered in the United States Patent and
Trademark Office. Each Assignor represents and warrants that it owns or is
licensed to use or is not prohibited from using all Marks that it uses. Each
Assignor further warrants that it is aware of no third party claim that any
aspect of such Assignor's present or contemplated business operations infringes
or will infringe any ▇▇▇▇. Each Assignor represents and warrants that it is the
owner of record of all United States registrations and applications listed in
Annex D hereto and that said registrations are valid, subsisting, have not been
canceled and that such Assignor is not aware of any third-party claim that any
of said registrations is invalid or unenforceable. Each Assignor hereby grants
to the Collateral Agent an absolute power of attorney to sign, upon the
occurrence and during the continuance of an Event of Default, any document which
may be required by the United States Patent and Trademark Office in order to
effect an absolute assignment of all right, title and interest in each ▇▇▇▇ and
associated goodwill, and record the same.
4.2. Licenses and Assignments. Other than the license agreements listed on
Annex E hereto and any extensions or renewals thereof, each Assignor hereby
agrees not to divest itself of any right under any ▇▇▇▇ absent prior written
approval of the Collateral Agent.
4.3. Infringements. Each Assignor agrees, promptly upon learning thereof,
to notify the Collateral Agent in writing of the name and address of, and to
furnish such pertinent information that may be available with respect to, any
party who such Assignor believes is infringing or otherwise violating any of
such Assignor's rights in and to any ▇▇▇▇, or with respect to any party claiming
that such Assignor's use of any ▇▇▇▇ violates in any material respect any
property right of that party. Each Assignor further agrees, unless otherwise
agreed by the Collateral Agent, diligently to prosecute any Person infringing
any ▇▇▇▇.
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4.4. Preservation of Marks. Each Assignor agrees to use its Marks in
interstate commerce during the time in which this Agreement is in effect,
sufficiently to preserve such Marks as trademarks or service marks registered
under the laws of the United States.
4.5. Maintenance of Registration. Each Assignor shall, at its own expense,
diligently process all documents required by the Trademark Act of 1946, 15
U.S.C. SS 1051 et seq. to maintain trademark registration, including but not
limited to affidavits of use and applications for renewals of registration in
the United States Patent and Trademark Office for all of its registered Marks
pursuant to 15 U.S.C. Sections 1058(a), 1059 and 1065, and shall pay all fees
and disbursements in connection therewith and shall not abandon any such filing
of affidavit of use or any such application of renewal prior to the exhaustion
of all administrative and judicial remedies without prior written consent of the
Collateral Agent; provided, that to the extent permitted by the Credit
Agreement, such Assignor shall not be obligated to maintain any ▇▇▇▇ in the
event that such Assignor determines, in its reasonable business judgment, that
the maintenance of such ▇▇▇▇ is no longer necessary or desirable in the conduct
of its business. Each Assignor agrees to notify the Collateral Agent three (3)
months prior to the date on which the affidavits of use or the applications for
renewal registration are due with respect to any registered ▇▇▇▇ that the
affidavits of use or the renewal is being processed or being abandoned, as the
case may be.
4.6. Future Registered Marks. If any ▇▇▇▇ registration is issued hereafter
to any Assignor as a result of any application now or hereafter pending before
the United States Patent and Trademark Office, within thirty (30) days of
receipt of such certificate, such Assignor shall deliver a copy of such
certificate, and a grant of security in such ▇▇▇▇ to the Collateral Agent,
confirming the grant thereof hereunder, the form of such confirmatory grant to
be satisfactory to the Collateral Agent.
4.7. Remedies. If an Event of Default shall occur and be continuing, the
Collateral Agent may, by written notice to the relevant Assignor, take any or
all of the following actions: (i) declare the entire right, title and interest
of such Assignor in and to each of the Marks and the goodwill of the business
associated therewith, together with all trademark rights and rights of
protection to the same, vested, in which event such rights, title and interest
shall immediately vest, in the Collateral Agent for the benefit of the Secured
Creditors, in which case the Collateral Agent shall be entitled to exercise the
power of attorney referred to in Section 4.1 hereof to execute, cause to be
acknowledged and notarized and record said absolute assignment with the
applicable agency; (ii) take and use or sell the Marks and the goodwill of such
Assignor's business symbolized by the Marks and the right to carry on the
business and use the assets of such Assignor in connection with which the Marks
have been used; and (iii) direct such Assignor to refrain, in which event such
Assignor shall refrain, from using the Marks in any manner whatsoever, directly
or indirectly, and, if requested by the Collateral Agent, change such Assignor's
corporate name to eliminate therefrom any use of any ▇▇▇▇ and execute such other
and further documents that the Collateral Agent may request to further confirm
this and to transfer ownership of the Marks and registrations and any pending
trademark application in the United States Patent and Trademark Office or any
equivalent government agency or office in any foreign jurisdiction to the
Collateral Agent.
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ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS AND COPYRIGHTS
5.1. Additional Representations and Warranties. Each Assignor represents
and warrants that it is the true and lawful exclusive owner of all rights in the
Patents listed in Annex F hereto and in the Copyrights listed in Annex G hereto,
that said Patents include all the United States patents and applications for
United States patents that such Assignor now owns and that said Copyrights
constitute all the United States copyrights registered with the United States
Copyright Office and applications for United States copyrights that such
Assignor now owns. Each Assignor represents and warrants that it owns or is
licensed to practice under all Patents and Copyrights that it now uses or
practices under. Each Assignor further warrants that it is aware of no third
party claim that any aspect of such Assignor's present or contemplated business
operations infringes or will infringe any patent or any copyright. Each Assignor
hereby grants to the Collateral Agent an absolute power of attorney to sign,
upon the occurrence and during the continuance of any Event of Default, any
document which may be required by the United States Patent and Trademark Office
or the United States Copyright Office in order to effect an absolute assignment
of all right, title and interest in each Patent and Copyright, and record the
same.
5.2. Licenses and Assignments. Other than the license agreements listed on
Annex E hereto and any extensions or renewals thereof, each Assignor hereby
agrees not to divest itself of any right under any Patent or Copyright absent
prior written approval of the Collateral Agent.
5.3. Infringements. Each Assignor agrees, promptly upon learning thereof,
to furnish the Collateral Agent in writing with all pertinent information
available to such Assignor with respect to any infringement or other violation
of such Assignor's rights in any Patent or Copyright, or with respect to any
claim that practice of any Patent or use of any Copyright violates any property
right of a third party. Each Assignor further agrees, absent direction of the
Collateral Agent to the contrary, diligently to prosecute any Person infringing
any Patent or Copyright.
5.4. Maintenance of Patents. At its own expense, each Assignor shall take
timely payment of all post-issuance fees required pursuant to 35 U.S.C. Section
41 to maintain in force rights under each Patent; provided, that to the extent
permitted by the Credit Agreement, such Assignor shall not be obligated to
maintain any Patent in the event that such Assignor determines, in its
reasonable business judgment, that the maintenance of such Patent is no longer
necessary or desirable in the conduct of its business. Each Assignor agrees to
notify the Collateral Agent three (3) months prior to the date on which the
post-issuance fees are due with respect to any Patent that the post-issuance
fees are being paid or that the Patent is being abandoned, as the case may be.
5.5. Prosecution of Patent Application. At its own expense, each Assignor
shall diligently prosecute all applications for Patents listed in Annex F hereto
and shall not abandon any such application prior to exhaustion of all
administrative and judicial remedies, absent
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PAGE 10
written consent of the Collateral Agent; provided, that to the extent permitted
by the Credit Agreement, such Assignor shall not be obligated to prosecute any
Patent in the event that such Assignor determines, in its reasonable business
judgment, that the prosecution of such Patent is no longer necessary or
desirable in the conduct of its business.
5.6. Other Patents and Copyrights. Within 30 days of acquisition of a
Patent or Copyright, or of filing of an application for a Patent or Copyright,
the relevant Assignor shall deliver to the Collateral Agent a copy of said
Patent or Copyright or such application, as the case may be, with a grant of
security as to such Patent or Copyright, as the case may be, confirming the
grant thereof hereunder, the form of such confirmatory grant to be satisfactory
to the Collateral Agent.
5.7. Remedies. If an Event of Default shall occur and be continuing, the
Collateral Agent may by written notice to the relevant Assignor, take any or all
of the following actions: (i) declare the entire right, title, and interest of
such Assignor in each of the Patents and Copyrights vested, in which event such
right, title, and interest shall immediately vest in the Collateral Agent for
the benefit of the Secured Creditors, in which case the Collateral Agent shall
be entitled to exercise the power of attorney referred to in Section 5.1 hereof
to execute, cause to be acknowledged and notarized and record said absolute
assignment with the applicable agency; (ii) take and practice or sell the
Patents and Copyrights; and (iii) direct such Assignor to refrain, in which
event such Assignor shall refrain, from practicing the Patents and Copyrights
directly or indirectly, and such Assignor shall execute such other and further
documents as the Collateral Agent may request further to confirm this and to
transfer ownership of the Patents and Copyrights to the Collateral Agent for the
benefit of the Secured Creditors.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1. Protection of Collateral Agent's Security. Except as otherwise
expressly permitted herein, each Assignor will do nothing to impair the rights
of the Collateral Agent in the Collateral. Each Assignor will at all times keep
its Inventory and Equipment insured in favor of the Collateral Agent, at such
Assignor's own expense to the extent and in the manner provided in Section 8.03
of the Credit Agreement. Prior to the exercise of any of the remedies provided
for herein, all insurance proceeds shall be applied in the manner and to the
extent required by the Credit Agreement, and at any time thereafter, such
insurance proceeds shall be applied in accordance with Section 7.4 hereof. Each
Assignor assumes all liability and responsibility in connection with the
Collateral acquired by it and the liability of such Assignor to pay the
Obligations shall in no way be affected or diminished by reason of the fact that
such Collateral may be lost, destroyed, stolen, damaged or for any reason
whatsoever unavailable to such Assignor.
6.2. Warehouse Receipts Non-negotiable. Each Assignor agrees that if any
warehouse receipt or receipt in the nature of a warehouse receipt is issued with
respect to any of its Inventory, such warehouse receipt or receipt in the nature
thereof shall not be "negotiable" (as
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such term is used in Section 7-104 of the Uniform Commercial Code as in effect
in any relevant jurisdiction or under other relevant law).
6.3. Further Actions. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted, which the Collateral Agent
deems reasonably appropriate or advisable to perfect, preserve or protect its
security interest in the Collateral.
6.4. Financing Statements. Each Assignor agrees to execute and deliver to
the Collateral Agent such financing statements, in form acceptable to the
Collateral Agent, as the Collateral Agent may from time to time request or as
are necessary or desirable in the opinion of the Collateral Agent to establish
and maintain a valid, enforceable, first priority perfected security interest in
the Collateral as provided herein and the other rights and security contemplated
hereby all in accordance with the Uniform Commercial Code as enacted in any and
all relevant jurisdictions or any other relevant law. Each Assignor will pay any
applicable filing fees, recordation taxes and related expenses. Each Assignor
authorizes the Collateral Agent to file any such financing statements without
the signature of such Assignor where permitted by law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. Remedies; Obtaining the Collateral Upon Default. Each Assignor agrees
that, if any Event of Default shall have occurred and be continuing, then and in
every such case, subject to any mandatory requirements of applicable law then in
effect, the Collateral Agent, in addition to any rights now or hereafter
existing under applicable law, shall have all rights as a secured creditor under
the Uniform Commercial Code in all relevant jurisdictions and may also:
(a) personally, or by agents or attorneys, immediately retake
possession of the Collateral or any part thereof, from such Assignor or any
other Person who then has possession of any part thereof with or without
notice or process of law, and for that purpose may enter upon such
Assignor's premises where any of the Collateral is located and remove the
same and use in connection with such removal any and all services,
supplies, aids and other facilities of such Assignor; and
(b) instruct the obligor or obligors on any agreement, instrument or
other obligation (including, without limitation, the Receivables and the
Contracts) constituting the Collateral to make any payment required by the
terms of such agreement, instrument
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or other obligation directly to the Collateral Agent and may exercise any
and all remedies of such Assignor in respect of such Collateral; and
(c) withdraw all monies, securities and instruments in the Cash
Collateral Account for application to the Obligations in accordance with
Section 7.4 hereof; and
(d) sell, assign or otherwise liquidate, or direct the relevant
Assignor to sell, assign or otherwise liquidate, any or all of the
Collateral or any part thereof, and take possession of the proceeds of any
such sale or liquidation; and
(e) take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to deliver the same to the
Collateral Agent at any place or places reasonably designated by the
Collateral Agent, in which event such Assignor shall at its own expense:
(i) forthwith cause the same to be moved to the place or places
so designated by the Collateral Agent and there delivered to the
Collateral Agent, and
(ii) store and keep any Collateral so delivered to the Collateral
Agent at such place or places pending further action by the Collateral
Agent as provided in Section 7.2 hereof, and
(iii) while the Collateral shall be so stored and kept, provide
such guards and maintenance services as shall be necessary to protect
the same and to preserve and maintain them in good condition; and
(f) license or sublicense, whether on an exclusive or nonexclusive
basis, any Marks, Patents or Copyrights included in the Collateral for such
term and on such conditions and in such manner as the Collateral Agent
shall in its sole judgment determine; it being understood that each
Assignor's obligation so to deliver the Collateral is of the essence of
this Agreement and that, accordingly, upon application to a court of equity
having jurisdiction, the Collateral Agent shall be entitled to a decree
requiring specific performance by such Assignor of said obligation.
7.2. Remedies; Disposition of the Collateral. Any Collateral repossessed by
the Collateral Agent under or pursuant to Section 7.1 hereof and any other
Collateral whether or not so repossessed by the Collateral Agent, may be sold,
assigned, leased or otherwise disposed of under one or more contracts or as an
entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at
such place or places and on such terms as the Collateral Agent may, in
compliance with any mandatory requirements of applicable law, determine to be
commercially reasonable. Any of the Collateral may be sold, leased or otherwise
disposed of, in the condition in which the same existed when taken by the
Collateral Agent or after any overhaul or repair which the Collateral Agent
shall determine to be commercially reasonable. Any such disposition which shall
be a private sale or other private proceedings permitted by such requirements
shall be made upon not less than 10
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days' written notice to the relevant Assignor specifying the time at which such
disposition is to be made and the intended sale price or other consideration
therefor, and shall be subject, for the 10 days after the giving of such notice,
to the right of such Assignor or any nominee of such Assignor to acquire the
Collateral involved at a price or for such other consideration at least equal to
the intended sale price or other consideration so specified. Any such
disposition which shall be a public sale permitted by such requirements shall be
made upon not less than 10 days' written notice to the relevant Assignor
specifying the time and place of such sale and, in the absence of applicable
requirements of law, shall be by public auction (which may, at the Collateral
Agent's option, be subject to reserve), after publication of notice of such
auction not less than 10 days prior thereto in two newspapers in general
circulation in the City of New York. To the extent permitted by any such
requirement of law, the Collateral Agent and the Secured Creditors may bid for
and become the purchaser of the Collateral or any item thereof, offered for sale
in accordance with this Section without accountability to the relevant Assignor.
If, under mandatory requirements of applicable law, the Collateral Agent shall
be required to make disposition of the Collateral within a period of time which
does not permit the giving of notice to the relevant Assignor as herein above
specified, the Collateral Agent need give such Assignor only such notice of
disposition as shall be reasonably practicable in view of such mandatory
requirements of applicable law. Each Assignor agrees to do or cause to be done
all such other acts and things as may be reasonably necessary to make such sale
or sales of all or any portion of the Collateral valid and binding and in
compliance with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales, all at such Assignor's expense.
7.3. Waiver of Claims. Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S
TAKING POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH SUCH ASSIGNOR
WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES
OR OF ANY STATE, and each Assignor hereby further waives, to the extent
permitted by law:
(a) all damages occasioned by such taking of possession except any
damages which are the direct result of the Collateral Agent's gross
negligence or willful misconduct;
(b) all other requirements as to the time, place and terms of sale or
other requirements with respect to the enforcement of the Collateral
Agent's rights hereunder; and
(c) all rights of redemption, appraisement, valuation, stay, extension
or moratorium now or hereafter in force under any applicable law in order
to prevent or delay the enforcement of this Agreement or the absolute sale
of the Collateral or any
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portion thereof, and such Assignor, for itself and all who may claim under
it, insofar as it or they now or hereafter lawfully may, hereby waives the
benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization
upon, any Collateral shall operate to divest all right, title, interest, claim
and demand, either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against such
Assignor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from,
through and under the Assignor.
7.4. Application of Proceeds. (a) All moneys collected by the Collateral
Agent (or, to the extent the Pledge Agreement or any Additional Security
Document to which any Assignor is a party requires proceeds of Collateral under
such agreement to be applied in accordance with the provisions of this
Agreement, the Pledgee or the secured party under such other agreement) upon any
sale or other disposition of the Collateral, together with all other moneys
received by the Collateral Agent hereunder, shall be applied as follows:
(i) first, to the payment of all amounts owing the Collateral Agent of
the type described in clauses (iii) and (iv) of the definition of
"Obligations";
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i) an amount equal to the outstanding
Primary Obligations shall be paid to the Secured Creditors as provided in
Section 7.4(e) hereof, with each Secured Creditor receiving an amount equal
to such outstanding Primary Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations, its Pro Rata
Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Secondary Obligations shall be paid to the Secured Creditors as
provided in Section 7.4(e) hereof, with each Secured Creditor receiving an
amount equal to its outstanding Secondary Obligations or, if the proceeds
are insufficient to pay in full all such Secondary Obligations, its Pro
Rata Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii) inclusive, and
following the termination of this Agreement pursuant to Section 11.9(a)
hereof, to the relevant Assignor or to whomever may be lawfully entitled to
receive such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall mean, when
calculating a Secured Creditor's portion of any distribution or amount, that
amount (expressed as a percentage) equal to a fraction the numerator of which is
the then unpaid amount of such Secured Creditor's Primary Obligations or
Secondary Obligations, as the case may be, and the denominator of which is the
then outstanding amount of all Primary Obligations or Secondary Obligations, as
the case may be, (y) "Primary Obligations" shall mean (i) in the case of the
Credit Agreement Obligations, all principal of, and interest on, all Loans, all
Unpaid Drawings
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theretofore made (together with all interest accrued thereon), and the aggregate
Stated Amounts of all Letters of Credit issued (or deemed issued) under the
Credit Agreement, and all Fees and (ii) in the case of the Other Obligations,
all amounts due under the Interest Rate Protection Agreements or Other Hedging
Agreements (other than indemnities, fees (including, without limitation,
attorneys' fees) and similar obligations and liabilities) and (z) "Secondary
Obligations" shall mean all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their respective Pro
Rata Shares, the amounts received by such Secured Creditors hereunder shall be
applied (for purposes of making determinations under this Section 7.4 only) (i)
first, to their Primary Obligations and (ii) second, to their Secondary
Obligations. If any payment to any Secured Creditor of its Pro Rata Share of any
distribution would result in overpayment to such Secured Creditor, such excess
amount shall instead be distributed in respect of the unpaid Primary Obligations
or Secondary Obligations, as the case may be, of the other Secured Creditors,
with each Secured Creditor whose Primary Obligations or Secondary Obligations,
as the case may be, have not been paid in full to receive an amount equal to
such excess amount multiplied by a fraction the numerator of which is the unpaid
Primary Obligations or Secondary Obligations, as the case may be, of such
Secured Creditor and the denominator of which is the unpaid Primary Obligations
or Secondary Obligations, as the case may be, of all Secured Creditors entitled
to such distribution.
(d) Each of the Secured Creditors agrees and acknowledges that if the
Lender Creditors are to receive a distribution on account of undrawn amounts
with respect to Letters of Credit issued (or deemed issued) under the Credit
Agreement (which shall only occur after all outstanding Loans and Unpaid
Drawings with respect to such Letters of Credit have been paid in full), such
amounts shall be paid to the Administrative Agent under the Credit Agreement and
held by it, for the equal and ratable benefit of the Lender Creditors, as cash
security for the repayment of Obligations owing to the Lender Creditors as such.
If any amounts are held as cash security pursuant to the immediately preceding
sentence, then upon the termination of all outstanding Letters of Credit, and
after the application of all such cash security to the repayment of all
Obligations owing to the Lender Creditors after giving effect to the termination
of all such Letters of Credit, if there remains any excess cash, such excess
cash shall be returned by the Administrative Agent to the Collateral Agent for
distribution in accordance with Section 7.4(a) hereof.
(e) Except as set forth in Section 7.4(d) hereof, all payments required to
be made hereunder shall be made (x) if to the Lender Creditors, to the
Administrative Agent under the Credit Agreement for the account of the Lender
Creditors, and (y) if to the Other Creditors, to the trustee, paying agent or
other similar representative (each a "Representative") for the Other Creditors
or, in the absence of such a Representative, directly to the Other Creditors.
(f) For purposes of applying payments received in accordance with this
Section 7.4, the Collateral Agent shall be entitled to rely upon (i) the
Administrative Agent under the Credit Agreement and (ii) the Representative for
the Other Creditors or, in the absence of such a Representative, upon the Other
Creditors for a determination (which the Administrative Agent, each
Representative for any Secured Creditors and the Secured Creditors agree (or
shall agree) to provide upon request of the Collateral Agent) of the outstanding
Primary Obligations and
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Secondary Obligations owed to the Lender Creditors or the Other Creditors, as
the case may be. Unless it has actual knowledge (including by way of written
notice from a Lender Creditor or an Other Creditor) to the contrary, the
Administrative Agent and each Representative, in furnishing information pursuant
to the preceding sentence, and the Collateral Agent, in acting hereunder, shall
be entitled to assume that no Secondary Obligations are outstanding. Unless it
has actual knowledge (including by way of written notice from an Other Creditor)
to the contrary, the Collateral Agent, in acting hereunder, shall be entitled to
assume that no Interest Rate Protection Agreements or Other Hedging Agreements
are in existence.
(g) It is understood and agreed that the Assignors shall remain liable to
the extent of any deficiency between the amount of the proceeds of the
Collateral hereunder and the aggregate amount of the sums referred to in clauses
(i) through (iii), inclusive, of Section 7.4(a) hereof.
7.5. Remedies Cumulative. Each and every right, power and remedy hereby
specifically given to the Collateral Agent shall be in addition to every other
right, power and remedy specifically given under this Agreement, the other
Financing Documents or now or hereafter existing at law or in equity, or by
statute and each and every right, power and remedy whether specifically herein
given or otherwise existing may be exercised from time to time or simultaneously
and as often and in such order as may be deemed expedient by the Collateral
Agent. All such rights, powers and remedies shall be cumulative and the exercise
or the beginning of exercise of one shall not be deemed a waiver of the right to
exercise of any other or others. No delay or omission of the Collateral Agent in
the exercise of any such right, power or remedy, renewal or extension of any of
the Obligations and no course of dealing between any Assignor and the Collateral
Agent or any holder of any of the Obligations shall impair any such right, power
or remedy or shall be construed to be a waiver of any Default or Event of
Default or an acquiescence therein. No notice to or demand on any Assignor in
any case shall entitle it to any other or further notice or demand in similar or
other circumstances or constitute a waiver of any of the rights of the
Collateral Agent to any other or further action in any circumstances without
notice or demand. In the event that the Collateral Agent shall bring any suit to
enforce any of its rights hereunder and shall be entitled to judgment, then in
such suit the Collateral Agent may recover reasonable expenses, including
attorneys' fees, and the amounts thereof shall be included in such judgment.
7.6. Discontinuance of Proceedings. In case the Collateral Agent shall have
instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Collateral Agent, then and in every such case the relevant
Assignor, the Collateral Agent and each holder of any of the obligations shall
be restored to their former positions and rights hereunder with respect to the
Collateral subject to the security interest created under this Agreement, and
all rights, remedies and powers of the Collateral Agent shall continue as if no
such proceeding had been instituted.
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ARTICLE VIII
INDEMNITY
8.1. Indemnity. (a) Each Assignor agrees to indemnify, reimburse and hold
the Collateral Agent, each Secured Creditor and their respective successors,
assigns, employees, agents and servants (hereinafter in this Section 8.1
referred to individually as "Indemnitee," and collectively as "Indemnitees")
harmless from any and all liabilities, obligations, damages, injuries,
penalties, claims, demands, actions, suits, judgments and any and all costs,
expenses or disbursements (including reasonable attorneys' fees and expenses)
(for the purposes of this Section 8.1 the foregoing are collectively called
"expenses") of whatsoever kind and nature imposed on, asserted against or
incurred by any of the Indemnity in any way relating to or arising out of this
Agreement, any other Financing Document or any other document executed in
connection herewith and therewith or in any other way connected with the
administration of the transactions contemplated hereby and thereby or the
enforcement of any of the terms of, or the preservation of any rights under any
thereof, or in any way relating to or arising out of the manufacture, ownership,
ordering, purchase, delivery, control, acceptance, lease, financing, possession,
operation, condition, sale, return or other disposition, or use of the
Collateral (including, without limitation, latent or other defects, whether or
not discoverable), any contract claim or, to the maximum extent permitted under
applicable law, the violation of the laws of any country, state or other
governmental body or unit, or any tort (including, without limitation, claims
arising or imposed under the doctrine of strict liability, or for or on account
of injury to or the death of any Person (including any Indemnitee), or property
damage); provided that no Indemnitee shall be indemnified pursuant to this
Section 8.l (a) for expenses to the extent caused by the gross negligence or
willful misconduct of any Indemnitee. Each Assignor agrees that upon written
notice by any Indemnitee of the assertion of such an expense, such Assignor
shall assume full responsibility for the defense thereof. Each Indemnitee agrees
to use its best efforts to promptly notify the relevant Assignor of any such
assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a) hereof, each
Assignor agrees to pay, or reimburse the Collateral Agent for any and all fees,
costs and expenses of whatever kind or nature incurred in connection with the
creation, preservation or protection of the Collateral Agent's Liens on, and
security interest in, the Collateral, including, without limitation, all fees
and taxes in connection with the recording or filing of instruments and
documents in public offices, payment or discharge of any taxes or Liens upon or
in respect of the Collateral, premiums for insurance with respect to the
Collateral and all other fees, costs and expenses in connection with protecting,
maintaining or preserving the Collateral and the Collateral Agent's interest
therein, whether through judicial proceedings or otherwise, or in defending or
prosecuting any actions, suits or proceedings arising out of or relating to the
Collateral.
(c) Without limiting the application of Section 8.1(a) or (b) hereof, each
Assignor agrees to pay, indemnify and hold each Indemnitee harmless from and
against any loss, costs, damages and expenses which such Indemnitee may suffer,
expend or incur in consequence of or
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growing out of any misrepresentation by such Assignor in this Agreement, any
other Financing Document or in any writing contemplated by or made or delivered
pursuant to or in connection with this Agreement or any other Financing
Document.
(d) If and to the extent that the obligations of any Assignor under this
Section 8.1 are unenforceable for any reason, such Assignor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
8.2. Indemnity Obligations Secured by Collateral; Survival. Any amounts
paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Assignor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment of all the
Notes issued under the Credit Agreement, the termination of all Interest Rate
Protection Agreements or Other Hedging Agreements and the payment of all other
Obligations and notwithstanding the discharge thereof.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified. Such
definitions shall be equally applicable to the singular and plural forms of the
terms defined.
"Administrative Agent" shall have the meaning provided in the first WHEREAS
clause of this Agreement.
"Agreement" shall mean this Security Agreement as the same may be modified,
supplemented or amended from time to time in accordance with its terms.
"Assignor" shall have the meaning provided in the first paragraph of this
Agreement.
"Borrower" shall have the meaning provided in the first WHEREAS clause of
this Agreement.
"Cash Collateral Account" shall mean a non-interest bearing cash collateral
account maintained with the Collateral Agent for the benefit of the Secured
Creditors.
"Chattel Paper" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Class" shall have the meaning provided in section 11.2.
"Collateral" shall have the meaning provided in Section 1.1(a) of this
Agreement.
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"Collateral Agent" shall have the meaning provided in the first paragraph
of this Agreement.
"Contract Rights" shall mean all rights of any Assignor (including, without
limitation, all rights to payment) under each Contract.
"Contracts" shall mean all contracts between any Assignor and one or more
additional parties (including, without limitation, each partnership agreement to
which any Assignor is a party and any Interest Rate Protection Agreement or
Other Hedging Agreement, but excluding licenses and contracts to the extent that
the terms thereof prohibit the assignment of, or granting of a security interest
in, such licenses or contracts.
"Copyrights" shall mean any copyright owned by any Assignor, including any
registrations of any copy now or hereafter registered with the United States
Copyright office or any foreign equivalent office, as well as any application
for a copyright registration now or hereafter made with the United States
Copyright Office or any foreign equivalent office by any Assignor.
"Credit Agreement" shall have the meaning provided in the first WHEREAS
clause of this Agreement.
"Credit Agreement Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"Default" shall mean any event which, with notice or lapse of time, or
both, would constitute an Event of Default.
"Documents" shall have the meaning provided in the Uniform Commercial Code
as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all machinery, equipment, furnishings, movable
trade fixtures and vehicles now or hereafter owned by any Assignor and any and
all additions, substitutions and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto.
"Event of Default" shall mean any Event of Default under, and as defined
in, the Credit Agreement and shall in any event, without limitation, include any
payment default on any of the Obligations after the expiration of any applicable
grace period.
"Financing Documents" shall have the meaning provided in Section 2.6 of
this Agreement.
"General Intangibles" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York and
shall in any event
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PAGE 20
include all of any Assignor's claims, rights, powers, privileges, authority,
options, security interests, liens and remedies under any partnership agreement
to which such Assignor is a party or with respect to any partnership of which
such Assignor is a partner.
"Goods" shall have the meaning provided in the Uniform Commercial Code as
in effect on the date hereof in the State of New York.
"Indemnitee" shall have the meaning provided in Section 8.1 of this
Agreement.
"Instrument" shall have the meaning provided in Article 9 of the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Intellectual Property Licensee Rights" shall mean any rights of a licensee
to use any ▇▇▇▇, Copyright or Patent.
"Inventory" shall mean merchandise, inventory and goods, and all additions,
substitutions and replacements thereof, wherever located, together with all
goods, supplies, incidentals, packaging materials, labels, materials and any
other items used or usable in manufacturing, processing, packaging or shipping
same; in all stages of production -- from raw materials through work-in-process
to finished goods -- and all products and proceeds of whatever sort and wherever
located and any portion thereof which may be returned, rejected, reclaimed or
repossessed by the Collateral Agent from any Assignor's customers, and shall
specifically include all "inventory" as such term is defined in the Uniform
Commercial Code as in effect on the date hereof in the State of New York, now or
hereafter owned by any Assignor.
"Lender Creditor" shall have the meaning provided in the first WHEREAS
clause of this Agreement.
"Lenders" shall have the meaning provided in the first WHEREAS clause of
this Agreement.
"Marks" shall mean any trademarks and service marks now held or hereafter
acquired by any Assignor, which are registered in the United States Patent and
Trademark Office or in any similar office or agency of the United States or any
state thereof or any political subdivision thereof and any application for such
trademarks and service marks, as well as any unregistered marks used by any
Assignor in the United States and trade dress including logos, designs, trade
names, company names, business names, fictitious business names and other
business identifiers in connection with which any of these registered or
unregistered marks are used in the United States.
"Obligations" shall mean (i) (x) the principal of and interest on the Notes
issued, and Loans made, under the Credit Agreement, and all reimbursement
obligations and Unpaid Drawings with respect to the Letters of Credit under the
Credit Agreement and (y) all other obligations and indebtedness (including,
without limitation, indemnities, Fees and interest thereon) of each Assignor to
the Lender Creditors now existing or hereafter incurred under, arising out of,
or in connection with the Credit Agreement and the other Credit Documents and
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PAGE 21
the due performance and compliance by such Assignor with all of the terms,
conditions and agreements contained in the Credit Agreement and the other Credit
Documents (all such principal, interest, obligations and liabilities being
herein collectively called the "Credit Agreement Obligations"); (ii) all
obligations and liabilities owing by such Assignor to the Other Creditors under,
or with respect to, any Interest Rate Protection Agreement or Other Hedging
Agreement, whether such Interest Rate Protection Agreement or Other Hedging
Agreement is now in existence or hereafter arising, and the due performance and
compliance by such Assignor with all of the terms, conditions and agreements
contained therein (all such obligations and liabilities described in this clause
(ii) being herein collectively called the "Other Obligations"); (iii) any and
all sums advanced by the Collateral Agent in order to preserve the Collateral or
preserve its security interest in the Collateral; (iv) in the event of any
proceeding for the collection or enforcement of any indebtedness, obligations,
or liabilities of such Assignor referred to in clauses (i) and (ii), after an
Event of Default shall have occurred and be continuing, the reasonable expenses
of re-taking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, or of any exercise by the
Collateral Agent of its rights hereunder, together with reasonable attorneys'
fees and court costs; and (v) all amounts paid by any Indemnitee as to which
such Indemnitee has the right to reimbursement under Section 8.1 of this
Agreement.
"Other Creditors" shall have the meaning provided in the second WHEREAS
clause of this Agreement.
"Other Obligations" shall have the meaning provided in the definition of
"Obligations" in this Article IX.
"Patents" shall mean any patent to which any Assignor now or hereafter has
title and any divisions or continuations thereof, as well as any application for
patent now or hereafter made by any Assignor.
"Primary Obligations" shall have the meaning provided in Section 7.4(b) of
this Agreement.
"Pro Rata Share" shall have the meaning provided in Section 7.4(b) of this
Agreement.
"Proceeds" shall have the meaning provided in the Uniform Commercial Code
as in effect in the State of New York on the date hereof or under other relevant
law and, in any event, shall include, but not be limited to, (i) any and all
proceeds of any insurance, indemnity, warranty or guaranty payable to the
Collateral Agent or any Assignor from time to time with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever) made or due and
payable to any Assignor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Collateral by any governmental authority (or any person acting under color of
governmental authority) and (iii) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
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PAGE 22
"Receivables" shall mean any "account" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all of such Assignor's rights to payment for goods
sold or leased or services performed by such Assignor, whether now in existence
or arising from time to time hereafter, including, without limitation, rights
evidenced by an account, note, contract, security agreement, chattel paper, or
other evidence of indebtedness or security, together with (i) all security
pledged, assigned, hypothecated or granted to or held by such Assignor to secure
the foregoing, (ii) all of any Assignor's right, title and interest in and to
any goods, the sale of which gave rise thereto, (iii) all guarantees,
endorsements and indemnifications on, or of, any of the foregoing, (iv) all
powers of attorney for the execution of any evidence of indebtedness or security
or other writing in connection therewith, (v) all books, records, ledger cards,
and invoices relating thereto, (vi) all evidences of the filing of financing
statements and other statements and the registration of other instruments in
connection therewith and amendments thereto, notices to other creditors or
secured parties, and certificates from filing or other registration officers,
(vii) all credit information, reports and memoranda relating thereto, and (viii)
all other writings related in any way to the foregoing.
"Representative" shall have the meaning provided in Section 7.4(e) of this
Agreement.
"Required Secured Creditors" shall mean (i) the Required Lenders (or, to
the extent required by Section 13.12 of the Credit Agreement, all of the
Lenders) under the Credit Agreement so long as any Credit Agreement Obligations
remain outstanding and (ii) in any situation not covered by preceding clause
(i), the holders of a majority of the outstanding principal amount of the Other
Obligations.
"Requisite Creditors" shall have the meaning provided in Section 11.2 of
this Agreement.
"Secondary Obligations" shall have the meaning provided in Section 7.4(b)
of this Agreement.
"Secured Creditors" shall have the meaning provided in the second WHEREAS
clause of this Agreement.
"Termination Date" shall have the meaning provided in Section 11.9 of this
Agreement.
"Trade Secrets" shall mean all trade secrets and proprietary information
necessary to operate the business of any Assignor.
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PAGE 23
ARTICLE X
THE COLLATERAL AGENT
10.1. Appointment. The Secured Creditors, by their acceptance of the
benefits of this Agreement hereby irrevocably designate Bankers Trust Company,
as Collateral Agent, to act as specified herein. Each Secured Creditor hereby
irrevocably authorizes, and each holder of any Note by the acceptance of such
Note and by the acceptance of the benefits of this Agreement shall be deemed
irrevocably to authorize, the Collateral Agent to take such action on its behalf
under the provisions of this Agreement and any other instruments and agreements
referred to herein and to exercise such powers and to perform such duties
hereunder as are specifically delegated to or required of the Collateral Agent
by the terms hereof and such other powers as are reasonably incidental thereto.
The Collateral Agent may perform any of its duties hereunder or thereunder by or
through its authorized agents or employees.
10.2. Nature of Duties. (a) The Collateral Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement. The duties
of the Collateral Agent shall be mechanical and administrative in nature; the
Collateral Agent shall not have by reason of this Agreement or any other
Financing Document a fiduciary relationship in respect of any Secured Creditor;
and nothing in this Agreement or any other Financing Document, expressed or
implied, is intended to or shall be so construed as to impose upon the
Collateral Agent any obligations in respect of this Agreement except as
expressly set forth herein.
(b) The Collateral Agent shall not be responsible for insuring the
Collateral or for the payment of taxes, charges or assessments or discharging of
Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(c) The Collateral Agent shall not be required to ascertain or inquire as
to the performance by any Assignor of any of the covenants or agreements
contained in this Agreement or any other Financing Document.
(d) The Collateral Agent shall be under no obligation or duty to take any
action under this Agreement or any other Credit Document if taking such action
(i) would subject the Collateral Agent to a tax in any jurisdiction where it is
not then subject to a tax or (ii) would require the Collateral Agent to qualify
to do business in any jurisdiction where it is not then so qualified, unless the
Collateral Agent receives security or indemnity satisfactory to it against such
tax (or equivalent liability), or any liability resulting from such
qualification, in each case as results from the taking of such action under this
Agreement or any other Credit Document or (iii) would subject the Collateral
Agent to in personam jurisdiction in any locations where it is not then so
subject.
(e) Notwithstanding any other provision of this Agreement, neither the
Collateral Agent nor any of its officers, directors, employees, affiliates or
agents shall, in its individual capacity, be personally liable for any action
taken or omitted to be taken by it in accordance with this Agreement except for
its own gross negligence or willful misconduct.
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10.3. Lack of Reliance on the Collateral Agent. Independently and without
reliance upon the Collateral Agent, each Secured Creditor, to the extent it
deems appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of each Assignor and its
Subsidiaries in connection with the making and the continuance of the
Obligations and the taking or not taking of any action in connection therewith,
and (ii) its own appraisal of the creditworthiness of each Assignor and its
Subsidiaries, and the Collateral Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide any Secured Creditor with
any credit or other information with respect thereto, whether coming into its
possession before the extension of any Obligations or the purchase of any Notes
or at any time or times thereafter. The Collateral Agent shall not be
responsible in any manner whatsoever to any Secured Creditor for the correctness
of any recitals, statements, information, representations or warranties herein
or in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of this
Agreement or the security interests granted hereunder or the financial condition
of any Assignor or any Subsidiary of any Assignor or be required to make any
inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement, or the financial condition of any
Assignor or any Subsidiary of any Assignor, or the existence or possible
existence of any Default or Event of Default. The Collateral Agent makes no
representations as to the value or condition of the Collateral or any part
thereof, or as to the title of any Assignor thereto or as to the security
afforded by this Agreement.
10.4. Certain Rights of the Collateral Agent. (a) No Secured Creditor shall
have the right to cause the Collateral Agent to take any action with respect to
the Collateral, with only the Required Secured Creditors having the right to
direct the Collateral Agent to take any such action. If the Collateral Agent
shall request instructions from the Required Secured Creditors, with respect to
any act or action (including failure to act) in connection with this Agreement,
the Collateral Agent shall be entitled to refrain from such act or taking such
action unless and until it shall have received instructions from the Required
Secured Creditors and to the extent requested, appropriate indemnification in
respect of actions to be taken, and the Collateral Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Secured Creditor shall have any right of action whatsoever against
the Collateral Agent as a result of the Collateral Agent acting or refraining
from acting hereunder in accordance with the instructions of the Required
Secured Creditors.
(b) The Collateral Agent shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement at the request or direction
of any of the Secured Creditors, unless such Secured Creditors shall have
offered to the Collateral Agent reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction.
10.5. Reliance. The Collateral Agent shall be entitled to rely, and shall
be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
the proper Person or entity, and, with respect to all legal matters
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PAGE 25
pertaining to this Agreement and the other Security Documents and its duties
thereunder and hereunder, upon advice of counsel selected by it.
10.6. Indemnification. To the extent the Collateral Agent is not reimbursed
and indemnified by any Assignor under this Agreement, the Secured Creditors will
reimburse and indemnify the Collateral Agent, in proportion to their respective
outstanding principal amounts (including, for this purpose, the Stated Amount of
outstanding Letters of Credit and any unreimbursed drawings in respect of
Letters of Credit, as well as any unpaid Primary Obligations in respect of
Interest Rate Protection Agreements or other Hedging Agreements, as outstanding
principal) of Obligations, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Collateral Agent in performing its duties hereunder,
or in any way relating to or arising out of its actions as Collateral Agent in
respect of this Agreement except for those resulting solely from the Collateral
Agent's own gross negligence or willful misconduct. The indemnities set forth in
this Article X shall survive the repayment of all Obligations, with the
respective indemnification at such time to be based upon the outstanding
principal amounts (determined as described above) of Obligations at the time of
the respective occurrence upon which the claim against the Collateral Agent is
based or, if same is not reasonably determinable, based upon the outstanding
principal amounts (determined as described above) of Obligations as in effect
immediately prior to the termination of this Agreement. The indemnities set
forth in this Article X are in addition to any indemnities provided by the
Lenders to the Collateral Agent pursuant to the Credit Agreement, with the
effect being that the Lenders shall be responsible for indemnifying the
Collateral Agent to the extent the Collateral Agent does not receive payments
pursuant to this Section 10.6 from the Secured Creditors (although in such
event, and upon the payment in full of all such amounts owing to the Collateral
Agent, the respective Lenders who paid same shall be subrogated to the rights of
the Collateral Agent to receive payment from the Secured Creditors).
10.7. The Collateral Agent in its Individual Capacity. With respect to its
obligations as a lender under the Credit Agreement and any other Credit
Documents to which the Collateral Agent is a party, and to act as administrative
agent under one or more of such Credit Documents, the Collateral Agent shall
have the rights and powers specified therein and herein for a "Lender", or an
"Administrative Agent", as the case may be, and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
terms "Lenders," "Required Lenders," "holders of Notes," or any similar terms
shall, unless the context clearly otherwise indicates, include the Collateral
Agent in its individual capacity. The Collateral Agent may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with any Assignor or any Affiliate or Subsidiary of any Assignor as if
it were not performing the duties specified herein or in the other Credit
Documents, and may accept fees and other consideration from any Assignor for
services in connection with the Credit Agreement, the other Credit Documents and
otherwise without having to account for the same to the Secured Creditors.
10.8. Holders. The Collateral Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and until written
notice of the assignment,
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PAGE 26
transfer or endorsement thereof, as the case may be, shall have been filed with
the Collateral Agent. Any request, authority or consent of any person or entity
who, at the time of making such request or giving such authority or consent, is
the holder of any Note, shall be final and conclusive and binding on any
subsequent holder, transferee, assignee or endorsee, as the case may be, of such
Note or of any Note or Notes issued in exchange therefor.
10.9. Resignation by the Collateral Agent. (a) The Collateral Agent may
resign from the performance of all of its functions and duties under this
Agreement at any time by giving 15 Business Days' prior or written notice to the
Assignors and the Lenders. Such resignation shall take effect upon the
appointment of a successor Collateral Agent pursuant to clause (b) or (c) below.
(b) If a successor Collateral Agent shall not have been appointed within
said 15 Business Day period by the Required Secured Creditors, the Collateral
Agent, with the consent of each Assignor, which consent shall not be
unreasonably withheld, shall then appoint a successor Collateral Agent who shall
serve as Collateral Agent hereunder or thereunder until such time, if any, as
the Required Secured Creditors appoint a successor Collateral Agent as provided
above.
(c) If no successor Collateral Agent has been appointed pursuant to clause
(b) above by the 15th Business Day after the date of such notice of resignation
was given by the Collateral Agent, as a result of a failure by such Assignor to
consent to the appointment of such a successor Collateral Agent, the Required
Secured Creditors shall then appoint a successor Collateral Agent who shall
serve as Collateral Agent hereunder or thereunder until such time, if any, as
the Required Secured Creditors appoint a successor Collateral Agent as provided
above.
10.10. Fees and Expenses of Collateral Agent. (a) Each Assignor (by its
execution and delivery hereof) hereby agrees that it shall pay to Bankers Trust
Company as the initial Collateral Agent, such fees as have been separately
agreed to in writing with Bankers Trust Company for acting as Administrative
Agent and as Collateral Agent hereunder. In the event a successor Collateral
Agent is at any time appointed pursuant to the preceding Section 10.9, each
Assignor hereby agrees to pay such successor Collateral Agent such fees for
acting as such as would customarily be charged by such Collateral Agent for
acting in such capacity in similar situations. Absent manifest error, the
determination by a successor Collateral Agent of the fees owing to it shall be
conclusive and binding upon such Assignor.
(b) In addition, each Assignor agrees to pay all reasonable out-of-pocket
costs and expenses of the Collateral Agent in connection with this Agreement and
any actions taken by the Collateral Agent hereunder, and agrees to pay all costs
and expenses of the Collateral Agent in connection with the enforcement of this
Agreement and the documents and instruments referred to herein (including,
without limitation, reasonable fees and disbursements of counsel for the
Collateral Agent).
ARTICLE XI
MISCELLANEOUS
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11.1. Notices. Except as otherwise specified herein, all notices, requests,
demands or other communications to or upon the respective parties hereto shall
be deemed to have been duly given or made when delivered to the party to which
such notice, request, demand or other communication is required or permitted to
be given or made under this Agreement, addressed as follows:
(a) if to any Assignor, at the address set forth opposite such
Assignor's signature:
(b) if to the Collateral Agent:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇]
(c) if to any Lender Creditor, either (x) to the Administrative Agent,
at the address of the Administrative Agent specified in the Credit
Agreement or (y) at such address as such Lender Creditor shall have
specified in the Credit Agreement;
(d) if to any Other Creditor, either (x) to the Representative for the
Other Creditors, at such address as such Representative may have provided
to the Assignor and the Collateral Agent from time to time, or (y) directly
to the Other Creditors at such address as the Other Creditors shall have
specified in writing to the Assignor and the Collateral Agent; or at such
other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
11.2. Waiver; Amendment. None of the terms and conditions of this Agreement
may be changed, waived, modified or varied in any manner whatsoever unless in
writing duly signed by each Assignor and the Collateral Agent (with the written
consent of the Required Secured Creditors); provided, however, that any change,
waiver, modification or variance affecting the rights and benefits of a single
Class of Secured Creditors (and not all Secured Creditors in a like or similar
manner) shall require the written consent of the Requisite Creditors of such
affected Class. For the purpose of this Agreement, the term "Class" shall mean
each class of Secured Creditors, i.e., whether (y) the Lender Creditors as
holders of the Credit Agreement Obligations or (z) the Other Creditors as the
holders of the Other Obligations; and the term "Requisite Creditors" of any
Class shall mean each of (x) with respect to the Credit Agreement Obligations,
the Required Lenders and (y) with respect to the Other Obligations, the holders
of at least a majority of all obligations outstanding from time to time under
the Interest Rate Protection Agreements or Other Hedging Agreements.
11.3. Obligations Absolute. The obligations of each Assignor hereunder
shall remain in full force and effect without regard to, and shall not be
impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of such Assignor; (b) any
exercise or non-exercise, or any waiver of, any right, remedy, power or
privilege under or in respect of this Agreement or any other Financing Document
except as specifically set forth in a waiver granted pursuant to Section 11.2
hereof; or (c) any
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PAGE 28
amendment to or modification of any Financing Document or any security for any
of the Obligations; whether or not such Assignor shall have notice or knowledge
of any of the foregoing.
11.4. Successors and Assigns. This Agreement shall be binding upon each
Assignor and its successors and assigns and shall inure to the benefit of the
Collateral Agent and each Secured Creditor and their respective successors and
assigns, provided that such Assignor may not transfer or assign any or all of
its rights or obligations hereunder without the written consent of the Required
Secured Creditors. All agreements, statements, representations and warranties
made by each Assignor herein or in any certificate or other instrument delivered
by such Assignor or on its behalf under this Agreement shall be considered to
have been relied upon by the Secured Creditors and shall survive the execution
and delivery of this Agreement or the other Financing Documents regardless of
any investigation made by the Secured Creditors or on their behalf.
11.5. Headings Descriptive. The headings of the several sections of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
11.6. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11.7. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS CF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
11.8. Assignor's Duties. It is expressly agreed, anything herein contained
to the contrary notwithstanding, that each Assignor shall remain liable to
perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Collateral Agent shall not have any obligations or
liabilities with respect to any Collateral by reason of or arising out of this
Agreement, nor shall the Collateral Agent be required or obligated in any manner
to perform or fulfill any of the obligations of any Assignor under or with
respect to any Collateral except to the extent directly resulting from the
Collateral Agent's gross negligence or willful misconduct.
11.9. Termination; Release. (a) After the Termination Date, this Agreement
shall terminate and the Collateral Agent, at the request and expense of the
respective Assignor, will execute and deliver to such Assignor a proper
instrument or instruments (including Uniform Commercial Code termination
statements on form UCC-3) acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Assignor (without
recourse and without any representation or warranty) such of the Collateral of
such Assignor as may be in the possession of the Collateral Agent and as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement. As used in this Agreement,
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PAGE 29
"Termination Date" shall mean the date upon which the Total Commitment and all
Interest Rate Protection Agreements or Other Hedging Agreements have been
terminated, no Note under the Credit Agreement is outstanding (and all Loans
have been repaid in full), all Letters of Credit have been terminated and all
Obligations then owing have been paid in full.
(b) In the event that any part of the Collateral is sold in connection with
a sale permitted by Section 9.02 of the Credit Agreement or otherwise released
at the direction of the Required Lenders (or all Lenders if required by Section
13.12 of the Credit Agreement) and the proceeds of such sale or sales or from
such release are applied in accordance with the provisions of Section 4.02 of
the Credit Agreement, to the extent required to be so applied, such Collateral
will be sold free and clear of the Liens created by this Agreement and the
Collateral Agent, at the request and expense of each Assignor, will duly assign,
transfer and deliver to such Assignor (without recourse and without any
representation or warranty) such of the Collateral as is then being (or has
been) so sold or released and as may be in the possession of the Collateral
Agent and has not theretofore been released pursuant to this Agreement.
(c) At any time that an Assignor desires that the Collateral Agent take any
action to acknowledge or give effect to any release of Collateral pursuant to
the foregoing Section 11.9 (a), or (b), it shall deliver to the Collateral Agent
a certificate signed by its senior officer stating that the release of the
respective Collateral is permitted pursuant to Section 11.9(a) or (b). If
requested by the Collateral Agent (although the Collateral Agent shall have no
obligation to make any such request), each Assignor shall furnish appropriate
legal opinions (from counsel acceptable to the Collateral Agent) to the effect
set forth in the immediately preceding sentence. The Collateral Agent shall have
no liability whatsoever to any Secured Creditor as the result of any release of
Collateral by it as permitted by this Section 11.9.
(d) The Collateral Agent shall have no liability whatsoever to any Secured
Creditor as a result of any release of Collateral by it in accordance with this
Section 11.9.
11.10. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with each Assignor and the
Collateral Agent.
11.11. Additional Assignors. It is understood and agreed that any
subsidiary of Holdings that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall
automatically become an Assignor hereunder by executing a counterpart hereof and
delivering the same to the Collateral Agent.
35
EXHIBIT H
PAGE 30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
ADDRESSES
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ UNIVERSAL COMPRESSION HOLDINGS, INC.
Houston, Texas
Attn: [President]
By
Title:
[OTHER ASSIGNORS]
By
Title:
UNIVERSAL COMPRESSION, INC.
By
Title:
BANKERS TRUST COMPANY,
as Collateral Agent
By
Title:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇]
36
ANNEX A
to
SECURITY AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE OFFICES/RECORD LOCATIONS
37
ANNEX B
to
SECURITY AGREEMENT
SCHEDULE OF INVENTORY AND EQUIPMENT LOCATIONS
38
ANNEX C
to
SECURITY AGREEMENT
SCHEDULE OF TRADE, FICTITIOUS AND OTHER NAMES
39
ANNEX D
to
SECURITY AGREEMENT
SCHEDULE OF MARKS
40
ANNEX E
to
SECURITY AGREEMENT
SCHEDULE OF LICENSE AGREEMENTS AND ASSIGNMENTS
41
ANNEX F
to
SECURITY AGREEMENT
SCHEDULE OF PATENTS AND APPLICATIONS
42
ANNEX G
to
SECURITY AGREEMENT
SCHEDULE OF COPYRIGHTS AND APPLICATIONS
43
ANNEX H
to
SECURITY AGREEMENT
FORM OF ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS AND PATENTS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which are
hereby acknowledged, [Name of Assignor], a __________ ___________ (the
"Assignor") with principal offices at ____________________________, hereby
assigns and grants to Bankers Trust Company, as Collateral Agent, with principal
offices at One Bankers Trust Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "Assignee"), a security interest in (i) all of the Assignor's right, title
and interest in and to the United States trademarks, trademark registrations and
trademark applications (the "Marks") set forth on Schedule A attached hereto,
(ii) all of the Assignor's rights, title and interest in and to the United
States patents (the "Patents") set forth on Schedule B attached hereto, in each
case together with (iii) all Proceeds (as such term is defined in the Security
Agreement referred to below) and products of the Marks and Patents, (iv) the
goodwill of the businesses with which the Marks are associated and (v) all
causes of action arising prior to or after the date hereof for infringement of
any of the Marks and Patents or unfair competition regarding the same.
THIS ASSIGNMENT is made to secure the satisfactory performance and payment
of all the Obligations of the Assignor, as such term is defined in the Security
Agreement among the Assignor, the other assignors from time to time party
thereto and the Assignee, dated as of May __, 2000 (as amended from time to
time, the "Security Agreement"). Upon the occurrence of the Termination Date (as
defined in the Security Agreement), the Assignee shall, upon such satisfaction,
execute, acknowledge, and deliver to the Assignor an instrument in writing
releasing the security interest in the Marks and Patents acquired under this
Assignment.
44
ANNEX H
to
SECURITY AGREEMENT
This Assignment has been granted in conjunction with the security interest
granted to the Assignee under the Security Agreement. The rights and remedies of
the Assignee with respect to the security interest granted herein are without
prejudice to, and are in addition to those set forth in the Security Agreement,
all terms and provisions of which are incorporated herein by reference. In the
event that any provisions of this Assignment are deemed to conflict with the
Security Agreement, the provisions of the Security Agreement shall govern.
* * *
45
ANNEX H
to
SECURITY AGREEMENT
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the
____ day of _________, ____.
[NAME OF ASSIGNOR], Assignor
By___________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Collateral Agent, Assignee
By___________________________
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me personally came ________
_________________ who, being by me duly sworn, did state as follows: that [s]he
is _______________ of [Name of Assignor], that [s]he is authorized to execute
the foregoing Assignment on behalf of said corporation and that [s]he did so by
authority of the [Board of Directors] of said corporation.
__________________________
Notary Public
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me personally came ________
_____________________ who, being by me duly sworn, did state as follows: that
[s]he is __________________ of Bankers Trust Company that [s]he is authorized to
execute the foregoing Assignment on behalf of said corporation and that [s]he
did so by authority of the [Board of Directors] of said corporation.
__________________________
Notary Public
48
SCHEDULE A
U.S. TRADEMARKS
▇▇▇▇ REG. NO. REG. DATE
49
SCHEDULE B
U.S. PATENTS
PATENT PATENT NO. ISSUE DATE
50
ANNEX I
to
SECURITY AGREEMENT
FORM OF ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
WHEREAS, [Name of Assignor], a ________________ _______________ (the
"Assignor"), having its chief executive office at ______________, ____________,
is the owner of all right, title and interest in and to the United States
copyrights and associated United States copyright registrations and applications
for registration set forth in Schedule A attached hereto;
WHEREAS, BANKERS TRUST COMPANY, as Collateral Agent, having its principal
offices at One Bankers Trust Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "Assignee"), desires to acquire a security interest in said copyrights and
copyright registrations and applications therefor; and
WHEREAS, the Assignor is willing to assign to the Assignee, and to grant to
the Assignee, a security interest in and lien upon the copyrights and copyright
registrations and applications therefor described above.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and subject to the terms and conditions of the Security
Agreement, dated as of May __, 2000, made by the Assignor, the other assignors
from time to time party thereto and the Assignee (as amended from time to time,
the "Security Agreement"), the Assignor hereby assigns to the Assignee, and
grants to the Assignee, a security interest in the copyrights and copyright
registrations and applications therefor set forth in Schedule A attached hereto.
This Assignment is made to secure the satisfactory performance and payment
of all the Obligations of the Assignor, as such term is defined in the Security
Agreement.
Upon the occurrence of the Termination Date (as defined in the Security
Agreement), the Assignee shall, upon such satisfaction, execute, acknowledge and
deliver to the Assignor an instrument in writing releasing the security interest
in the copyright registrations and applications thereof described above.
This Assignment has been granted in conjunction with the security interest
granted to the Assignee under the Security Agreement. The rights and remedies of
the Assignee with respect to the security interest granted herein are without
prejudice to, and are in addition to those set forth in the Security Agreement,
all terms and provisions of which are incorporated herein by reference. In the
event that any provisions of this Assignment are deemed to conflict with the
Security Agreement, the provisions of the Security Agreement shall govern.
51
ANNEX I
to
SECURITY AGREEMENT
Executed at New York, New York, the __ day of _________, ____.
[NAME OF ASSIGNOR], as Assignor
By__________________________
Name:
Title:
BANKERS TRUST COMPANY, as
Collateral Agent, Assignee
By__________________________
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On this __ day of _________, ____, before me personally came ___________
_______________, who being duly sworn, did depose and say that [s]he is
___________________ of [Name of Assignor], that [s]he is authorized to execute
the foregoing Assignment on behalf of said corporation and that [s]he did so by
authority of the [Board of Directors] of said corporation.
_________________________
Notary Public
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me personally came ________
_____________________ who, being by me duly sworn, did state as follows: that
[s]he is __________________ of Bankers Trust Company that [s]he is authorized to
execute the foregoing Assignment on behalf of said corporation and that [s]he
did so by authority of the [Board of Directors] of said corporation.
_________________________
Notary Public
54
SCHEDULE A
U.S. COPYRIGHTS
REGISTRATION PUBLICATION
NUMBERS DATE COPYRIGHT TITLE