EXECUTION COPY
SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT
SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT dated as of April 3, 1998
among ▇▇▇▇▇▇▇ BROS., INC., a corporation duly organized and validly existing
under the laws of the State of Louisiana ("▇▇▇▇▇▇▇"), AZERTY INCORPORATED, a
corporation duly organized and validly existing under the laws of the State of
Delaware ("AZERTY"), POSITIVE ID WHOLESALE INC., a corporation duly organized
and validly existing under the laws of the State of Delaware ("POSITIVE"), AP
SUPPORT SERVICES INCORPORATED, a corporation duly organized and validly existing
under the laws of the State of Delaware ("AP SUPPORT", and together with
▇▇▇▇▇▇▇, Azerty and Positive, the "SUBSIDIARY GUARANTORS"); and THE CHASE
MANHATTAN BANK, as administrative agent for the lenders party to the Credit
Agreement referred to below (in such capacity, together with its successors in
such capacity, the "ADMINISTRATIVE AGENT").
United Stationers Supply Co. (the "COMPANY"), United Stationers Inc.,
the parent corporation of the Company and a corporation duly organized and
validly existing under the laws of the State of Delaware (together with its
successors and assigns, the "PARENT GUARANTOR" and, together with the Company,
the "OBLIGORS"), certain lenders and the Administrative Agent are parties to the
Second Amended and Restated Credit Agreement dated as of April 3, 1998 (as
amended, restated, modified and supplemented and in effect from time to time,
the "CREDIT AGREEMENT"), providing, subject to the terms and conditions thereof,
for extensions of credit (by making of loans and issuing letters of credit) to
be made by said lenders to the Company in an aggregate principal amount not
exceeding on the date hereof $500,000,000.
▇▇▇▇▇▇▇ and the Administrative Agent are party to a Guarantee and
Security Agreement dated as of October 31, 1996 (as hereto amended, the
"EXISTING GUARANTEE AND SECURITY AGREEMENT").
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, ▇▇▇▇▇▇▇ and the
Administrative Agent have agreed to amend and restate the Existing Guarantee and
Security Agreement and the other Subsidiary Guarantors have agreed to become
parties hereto and the Subsidiary Guarantors have agreed to guarantee jointly
and severally the Guaranteed Obligations (as hereinafter defined), and to pledge
and grant a security interest in the Collateral (as hereinafter defined) as
security for the Secured Obligations (as hereinafter defined). Accordingly, the
parties hereto agree as follows:
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Section 1. DEFINITIONS. Terms defined in the Credit Agreement are
used herein as defined therein. In addition, as used herein:
"ACCOUNTS" shall have the meaning ascribed thereto in Section 4(d)
hereof.
"COLLATERAL" shall have the meaning ascribed thereto in Section 4
hereof.
"COPYRIGHT COLLATERAL" shall mean all Copyrights, whether now owned or
hereafter acquired by any Subsidiary Guarantor, including each Copyright
identified in Annex 2 hereto.
"COPYRIGHTS" shall mean all copyrights, copyright registrations and
applications for copyright registrations, including, without limitation,
all renewals and extensions thereof, the right to recover for all past,
present and future infringements thereof, and all other rights of any kind
whatsoever accruing thereunder or pertaining thereto.
"DOCUMENTS" shall have the meaning ascribed thereto in Section 4(j)
hereof.
"EQUIPMENT" shall have the meaning ascribed thereto in Section 4(h)
hereof.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary of any Subsidiary
Guarantor that is not organized or created under the laws of the United
States of America, any State thereof or the District of Columbia.
"GUARANTEED OBLIGATIONS" shall have the meaning ascribed thereto in
Section 3.01 hereof.
"INSTRUMENTS" shall have the meaning ascribed thereto in Section 4(e)
hereof.
"INTELLECTUAL PROPERTY" shall mean, collectively, all Copyright
Collateral, all Patent Collateral and all Trademark Collateral, together
with (a) all inventions, processes, production methods, proprietary
information, know-how and trade secrets; (b) all licenses or user or other
agreements granted to any Subsidiary Guarantor with respect to any of the
foregoing, in each case whether now or hereafter owned or used including,
without limitation, the licenses or other agreements with respect to the
Copyright Collateral, the Patent Collateral or the Trademark Collateral,
listed in Annex 5 hereto, except to the extent that a security interest
therein may not be granted without the consent of a licensor; (c) all
information, customer lists, identification of suppliers, data, plans,
blueprints, specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards, processing
standards, performance standards, catalogs, computer and automatic
machinery software and programs; (d) all field repair data, sales data and
other information relating to sales or service of products now or hereafter
manufactured; (e) all accounting information and all media in which or on
which any information or knowledge or data or records may be recorded or
stored and all
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computer programs used for the compilation or printout of such information,
knowledge, records or data; (f) all licenses, consents, permits, variances,
certifications and approvals of governmental agencies now or hereafter held
by any Subsidiary Guarantor, except to the extent that a security interest
therein may not be granted without the consent of a licensor; and (g) all
causes of action, claims or warranties now or hereafter owned or acquired
by the Company in respect of any of the items listed above.
"INVENTORY" shall have the meaning ascribed thereto in Section 4(f)
hereof.
"ISSUERS" shall mean, collectively, the respective corporations
identified on Annex 1 hereto under the caption "ISSUER".
"MOTOR VEHICLES" shall mean motor vehicles, tractors, trailers and
other like Property, whether or not the title thereto is governed by a
certificate of title or ownership.
"PATENT COLLATERAL" shall mean all Patents, whether now owned or
hereafter acquired by any Subsidiary Guarantor, including each Patent
identified in Annex 3 hereto.
"PATENTS" shall mean all patents and patent applications, including,
without limitation, the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties,
damages and payments now or hereafter due and/or payable under and with
respect thereto, including, without limitation, damages and payments for
past or future infringements thereof, the right to ▇▇▇ for past, present
and future infringements thereof, and all rights corresponding thereto
throughout the world.
"PLEDGED STOCK" shall have the meaning ascribed thereto in
Section 4(a) hereof.
"SECURED OBLIGATIONS" shall mean, collectively, (a) the Guaranteed
Obligations, which include the principal of and interest on the Loans made
by the Lenders to the Company and all other amounts from time to time owing
to the Lenders or the Administrative Agent by the Company under the Basic
Documents including, without limitation, all Reimbursement Obligations and
interest thereon, (b) obligations of the Company to any Lender under any
Interest Rate Protection Agreement required under the Existing Credit
Agreement and (c) all obligations of any Subsidiary Guarantor hereunder
and under the other Basic Documents (including, without limitation, in
respect of the guarantee under Section 3 hereof).
"STOCK COLLATERAL" shall mean, collectively, the Collateral described
in clauses (a) through (c) of Section 4 hereof and the proceeds of and to
any such Property and, to the extent related to any such Property or such
proceeds, all books, correspondence, credit files, records, invoices and
other papers.
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"SUBSIDIARY GUARANTOR COLLATERAL ACCOUNT" shall have the meaning
ascribed thereto in Section 5.01 hereof.
"TRADEMARK COLLATERAL" shall mean all Trademarks, whether now owned or
hereafter acquired by any Subsidiary Guarantor, including each Trademark
identified in Annex 4 hereto. Notwithstanding the foregoing, the Trademark
Collateral does not and shall not include any Trademark that would be
rendered invalid, abandoned, void or unenforceable by reason of its being
included as part of the Trademark Collateral.
"TRADEMARKS" shall mean all trade names, trademarks and service marks,
logos, trademark and service ▇▇▇▇ registrations, and applications for
trademark and service ▇▇▇▇ registrations, including, without limitation,
all renewals of trademark and service ▇▇▇▇ registrations, all rights
corresponding thereto throughout the world, the right to recover for all
past, present and future infringements thereof, all other rights of any
kind whatsoever accruing thereunder or pertaining thereto, together, in
each case, with the product lines and goodwill of the business connected
with the use of, and symbolized by, each such trade name, trademark and
service ▇▇▇▇.
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code as in
effect from time to time in the State of New York.
Section 2. REPRESENTATIONS AND WARRANTIES. Each Subsidiary Guarantor
represents and warrants to the Lenders and the Administrative Agent that:
2.01 NO BREACH. None of the execution and delivery of this
Agreement, the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, any applicable law or regulation, or
an order, writ, injunction or decree of any court or governmental authority or
agency, or any agreement or instrument to which such Subsidiary Guarantor or any
of its Subsidiaries is a party or by which any of them is bound or to which any
of them is subject, or constitute a default under any such agreement or
instrument, or (except for the Liens created hereunder) result in the creation
or imposition of any Lien upon any Property of such Subsidiary Guarantor or any
such Subsidiary pursuant to the terms of any such agreement or instrument.
2.02 ACTION. This Agreement has been duly and validly executed and
delivered by such Subsidiary Guarantor and constitutes its legal, valid and
binding obligation, enforceable in accordance with its terms.
2.03 APPROVALS. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange are necessary for the execution, delivery or
performance by the Subsidiary of this Agreement or for the validity or
enforceability hereof.
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2.04 COLLATERAL.
(a) Such Subsidiary Guarantor is (or, at the time that such
Subsidiary Guarantor acquires any interest therein, will be) the sole
beneficial owner of the Collateral and no Lien exists or will exist upon
the Collateral at any time (and no right or option to acquire the same
exists in favor of any other Person), except for Liens permitted under
Section 9.06 of the Credit Agreement and except for the pledge and security
interest in favor of the Administrative Agent for the benefit of the
Lenders created or provided for herein, which pledge and security interest
will (subject to Section 6.11 hereof) constitute a perfected pledge and
security interest in and to all of the Collateral (other than Intellectual
Property registered or otherwise located outside of the United States of
America), subject to no equal or prior security interest or pledge except
as permitted under Section 9.06 of the Credit Agreement.
(b) The Pledged Stock represented by the certificates identified in
Annex 1 hereto is, and all other Pledged Stock in which such Subsidiary
Guarantor shall hereafter grant a security interest pursuant to Section 3
hereof will be, duly authorized, validly existing, fully paid and
non-assessable and none of such Pledged Stock is or will be subject to any
contractual restriction, or any restriction under the charter or by-laws of
the relevant issuer thereof, upon the transfer of such Pledged Stock
(except for any such restriction contained herein or in the Credit
Agreement).
(c) The Pledged Stock represented by the certificates identified in
Annex 1 hereto constitutes all of the issued and outstanding shares of
capital stock of each class of each issuer thereof on the date hereof (or,
in the case of any Foreign Subsidiary, not less than 65% of the issued and
outstanding shares of capital stock of each class of such Foreign
Subsidiary on the date hereof), and said Annex 1 correctly identifies, as
at the date hereof, the respective class and par value of the shares
comprising such Pledged Stock, the respective number of shares represented
by each such certificate, and the respective beneficial and registered
owner of such shares.
(d) Annexes 2, 3 and 4 hereto, respectively, set forth a complete and
correct list of all Copyrights, Patents and Trademarks owned by such
Subsidiary Guarantor on the date hereof; except pursuant to licenses and
other user agreements entered into by such Subsidiary Guarantor in the
ordinary course of business, that are listed in Annex 5 hereto, such
Subsidiary Guarantor owns and possesses the right to use, and has done
nothing to authorize or enable any other Person to use, any Copyright,
Patent or Trademark listed in said Annexes 2, 3 and 4, and all
registrations listed in said Annexes 2, 3 and 4 are valid and in full force
and effect; except as may be set forth in said Annex 5, such Subsidiary
Guarantor owns and possesses the right to use all Copyrights, Patents and
Trademarks.
(e) Annex 5 hereto sets forth a complete and correct list of all
licenses and other user agreements included in the Intellectual Property on
the date hereof.
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(f) To such Subsidiary Guarantor's knowledge, (i) except as set forth
in Annex 5 hereto, there is no violation by others of any right of such
Subsidiary Guarantor with respect to any Copyright, Patent or Trademark
listed in Annexes 2, 3 and 4 hereto, respectively, and (ii) such Subsidiary
Guarantor is not infringing in any material respect upon any Copyright,
Patent or Trademark of any other Person; and no proceedings which if
adversely determined could reasonably be expected to have a Material
Adverse Effect have been instituted or are pending against such Subsidiary
Guarantor or, to such Subsidiary Guarantor's knowledge, threatened, and no
claim against such Subsidiary Guarantor has been received by such
Subsidiary Guarantor, alleging any such violation, except as may be set
forth in said Annex 5.
(g) Such Subsidiary Guarantor does not own any Trademarks registered
in the United States of America to which the last sentence of the
definition of Trademark Collateral applies.
(h) Any goods now or hereafter produced by the Subsidiary Guarantor
or any of its Subsidiaries included in the Collateral have been and will be
produced in compliance with the requirements of the Fair Labor Standards
Act, as amended.
Section 3. THE GUARANTEE.
3.01 THE GUARANTEE. The Subsidiary Guarantors hereby, jointly and
severally, guarantee to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the principal of and
interest on the Loans made by the Lenders to the Company and all other amounts
from time to time owing to the Lenders or the Administrative Agent by the
Company under the Credit Agreement and by the Company under any of the other
Basic Documents, and all Reimbursement Obligations and interest thereon, in each
case strictly in accordance with the terms thereof (such obligations being
herein collectively called the "GUARANTEED OBLIGATIONS"). The Subsidiary
Guarantor hereby further agrees that if the Company shall fail to pay in full
when due (whether at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations, the Subsidiary Guarantor will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
3.02 OBLIGATIONS UNCONDITIONAL. The obligations of the Subsidiary
Guarantors under Section 3.01 hereof are joint and several, absolute and
unconditional irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Company under the Credit Agreement or
any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense
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of a surety or guarantor (other than the payment of the Guaranteed Obligations),
it being the intent of this Section 3.02 that the obligations of the Subsidiary
Guarantor hereunder shall be joint and several, absolute and unconditional under
any and all circumstances. Without limiting the generality of the foregoing, it
is agreed that the occurrence of any one or more of the following shall not
alter or impair the liability of the Subsidiary Guarantor hereunder which shall
remain joint and several, absolute and unconditional as described above:
(i) at any time or from time to time, without notice to any
Subsidiary Guarantor, the time for any performance of or compliance with
any of the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of the Credit
Agreement or any other agreement or instrument referred to herein or
therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under the Credit
Agreement or any other agreement or instrument referred to herein or
therein shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
Each Subsidiary Guarantor hereby expressly waives diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed
against the Company under the Credit Agreement or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
3.03 REINSTATEMENT. The obligations of each Subsidiary Guarantor
under this Section 3 shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of any Obligor or any other
Subsidiary Guarantor in respect of the Guaranteed Obligations is rescinded or
must be otherwise restored by any holder of any of the Guaranteed Obligations,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, and the Subsidiary Guarantor agrees that it will jointly and
severally indemnify the Administrative Agent and each Lender on demand for all
reasonable costs and expenses (including, without limitation, fees of counsel)
incurred by the Administrative Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
3.04 SUBROGATION. Each Subsidiary Guarantor hereby waives, until
payment in
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full of the Guaranteed Obligations, all rights of subrogation or contribution,
whether arising by contract or operation of law (including, without limitation,
any such right arising under the Federal Bankruptcy Code) or otherwise by reason
of any payment by it pursuant to the provisions of this Section 3.
3.05 REMEDIES. Each of the Subsidiary Guarantors, jointly and
severally, agrees that, as between such Subsidiary Guarantors and the Lenders,
the obligations of the Company under the Credit Agreement may be declared to be
forthwith due and payable as provided in Section 10 of the Credit Agreement (and
shall be deemed to have become automatically due and payable in the
circumstances provided in said Section 10) for purposes of Section 3.01 hereof
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Company and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Company) shall forthwith
become due and payable by such Subsidiary Guarantor for purposes of said
Section 3.01.
3.06 CONTINUING GUARANTEE. The guarantee in this Section 3 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
3.07 RIGHTS OF CONTRIBUTION. The Subsidiary Guarantors hereby agree,
as between themselves, that if any Subsidiary Guarantor shall become an
Excess Funding Guarantor (as defined below) by reason of the payment by such
Subsidiary Guarantor of any Guaranteed Obligations, each other Subsidiary
Guarantor shall, on demand of such excess Funding Guarantor (but subject to
the next sentence), pay to such Excess Funding Guarantor an amount equal to
such Subsidiary Guarantor's Pro Rata Share (as defined below and determined,
for this purpose, without reference to the Properties, debts and liabilities
of such Excess Funding Guarantor) of the Excess Payment (as defined below) in
respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section 3.07
shall be subordinate and subject in right of payment to the prior payment in
full of the obligations of such Subsidiary Guarantor under the other
provisions of this Section 3 and such Excess Funding Guarantor shall not
exercise any right or remedy with respect to such excess until payment and
satisfaction in full of all of such obligations.
For purposes of this Section 3.07, (i) EXCESS FUNDING GUARANTOR shall
mean, in respect of any Guaranteed Obligations, a Subsidiary Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(ii) EXCESS PAYMENT shall mean, in respect of any Guaranteed Obligations, the
amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of
such Guaranteed Obligations and (iii) PRO RATA SHARE shall mean, for any
Subsidiary Guarantor, the ratio (expressed as a percentage) of (x) the amount by
which the aggregate present fair saleable value of all Properties of such
Subsidiary Guarantor (excluding any shares of stock of any other Subsidiary
Guarantor) exceeds the amount of all the debts and liabilities of such
Subsidiary Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Subsidiary
Guarantor hereunder
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and any obligations of any other Subsidiary Guarantor that have been
guaranteed by such Subsidiary Guarantor) to (y) the amount by which the
aggregate fair saleable value of all Properties of all of the Subsidiary
Guarantors exceeds the amount of all the debts and liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of the Subsidiary Guarantors hereunder and under
the other loan documents) of all of the Subsidiary Guarantors, determined (A)
with respect to any Subsidiary Guarantor that is a party hereto on the
Closing Date, as of the Closing Date, and (B) with respect to any other
Subsidiary Guarantor, as of the date such Subsidiary Guarantor becomes a
Subsidiary Guarantor hereunder.
3.08 GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In any action or
proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 3.01 hereof would otherwise, taking into account the provisions of
Section 3.07 hereof, be held or determined to be void, invalid or unenforceable,
or subordinated to the claims of any other creditors, on account of the amount
of its liability under said Section 3.01, then, notwithstanding any other
provision hereof to the contrary, the amount of such liability shall, without
any further action by such Subsidiary Guarantor, any Lender, the Administrative
Agent or any other Person, be automatically limited and reduced to the highest
amount that is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
Section 4. COLLATERAL. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations, each Subsidiary Guarantor hereby pledges and grants to
the Administrative Agent, for the benefit of the Lenders as hereinafter
provided, a security interest in all of such Subsidiary Guarantor's right, title
and interest in the following Property, whether now owned by such Subsidiary
Guarantor or hereafter acquired and whether now existing or hereafter coming
into existence (all being collectively referred to herein as "COLLATERAL"):
(a) the shares of common/preferred stock of the Issuers represented
by the certificates identified in Annex 1 hereto and all other shares of
capital stock of whatever class of the Issuers, now or hereafter owned by
such Subsidiary Guarantor, in each case together with the certificates
evidencing the same (collectively, the "PLEDGED STOCK");
(b) all shares, securities, moneys or Property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Stock;
(c) without affecting the obligations of such Subsidiary Guarantor
under any provision prohibiting such action hereunder or under the Credit
Agreement, in the event
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of any consolidation or merger in which an Issuer is not the
surviving corporation, all shares of each class of the capital stock
of the successor corporation (unless such successor corporation is
such Subsidiary Guarantor itself) formed by or resulting from such
consolidation or merger (the Pledged Stock, together with all other
certificates, shares, securities, properties or moneys as may from
time to time be pledged hereunder pursuant to clause (a) or (b) above
and this clause (c) being herein collectively called the "STOCK
COLLATERAL");
(d) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of such Subsidiary Guarantor constituting any
right to the payment of money, including (but not limited to) all moneys
due and to become due to such Subsidiary Guarantor in respect of any loans
or advances or for Inventory or Equipment or other goods sold or leased or
for services rendered, all moneys due and to become due to such Subsidiary
Guarantor under any guarantee (including a letter of credit) of the
purchase price of Inventory or Equipment sold by such Subsidiary Guarantor
and all tax refunds (such accounts, general intangibles and moneys due and
to become due being herein called collectively "ACCOUNTS");
(e) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of such Subsidiary Guarantor
evidencing, representing, arising from or existing in respect of, relating
to, securing or otherwise supporting the payment of, any of the Accounts,
including (but not limited to) promissory notes, drafts, bills of exchange
and trade acceptances (herein collectively called "INSTRUMENTS");
(f) all inventory (as defined in the Uniform Commercial Code) of such
Subsidiary Guarantor, all goods obtained by such Subsidiary Guarantor in
exchange for such inventory, and any products made or processed from such
inventory including all substances, if any, commingled therewith or added
thereto (herein collectively called "INVENTORY");
(g) all Intellectual Property and all other accounts or general
intangibles not constituting Intellectual Property or Accounts;
(h) all equipment (as defined in the Uniform Commercial Code) of such
Subsidiary Guarantor, including all Motor Vehicles (herein collectively
called "EQUIPMENT");
(i) each contract and other agreement of such Subsidiary Guarantor
relating to the sale or other disposition of Inventory or Equipment;
(j) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of such Subsidiary Guarantor covering, evidencing
or representing Inventory or Equipment (herein collectively called
"DOCUMENTS");
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(k) all rights, claims and benefits of such Subsidiary Guarantor
against any Person arising out of, relating to or in connection with
Inventory or Equipment purchased by such Subsidiary Guarantor, including,
without limitation, any such rights, claims or benefits against any Person
storing or transporting such Inventory or Equipment;
(l) the balance from time to time in the Subsidiary Guarantor
Collateral Account and all Investment Property (as defined in Section 9-115
of the Uniform Commercial Code) held therein; and
(m) all other tangible and intangible personal Property and fixtures
of such Subsidiary Guarantor, including, without limitation, all proceeds,
products, offspring, accessions, rents, profits, income, benefits,
substitutions and replacements of and to any of the Property of such
Subsidiary Guarantor described in the preceding clauses of this Section 4
(including, without limitation, any proceeds of insurance thereon and all
causes of action, claims and warranties now or hereafter held by such
Subsidiary Guarantor in respect of any of the items listed above) and, to
the extent related to any Property described in said clauses or such
proceeds, products and accessions, all books, correspondence, credit files,
records, invoices and other papers, including without limitation all tapes,
cards, computer runs and other papers and documents in the possession or
under the control of such Subsidiary Guarantor or any computer bureau or
service company from time to time acting for such Subsidiary Guarantor.
PROVIDED that Collateral shall not include (i) shares of capital stock of any
class issued by any Foreign Subsidiary to the extent that the percentage of
issued and outstanding shares of capital stock of such class subject to the Lien
of this Agreement would constitute more than 65% of the issued and outstanding
shares of capital stock of such class, (ii) any tangible personal Property
located outside the United States of America and (iii) any Receivables and
Related Assets transferred in connection with the Receivables Financing.
Section 5. CASH PROCEEDS OF COLLATERAL.
5.01 SUBSIDIARY GUARANTOR COLLATERAL ACCOUNT. The Administrative
Agent will cause to be established with Chase a cash collateral account (the
"SUBSIDIARY GUARANTOR COLLATERAL ACCOUNT"), which may be a "securities account"
(as defined in Section 8-501 or the Uniform Commercial Code) in the name and
under the sole dominion and control of the Administrative Agent (or, in the case
of a securities account, in respect of which the Administrative Agent is the
"entitlement holder" (as defined in Section 8-102(a)(7) of the Uniform
Commercial Code)), into which there shall be deposited from time to time the
cash proceeds of any of the Collateral (including proceeds of insurance thereon)
and into which any Subsidiary Guarantor may from time to time deposit any
additional amounts that it wishes to pledge to the Administrative Agent for the
benefit of the Lenders as additional collateral security hereunder or that, as
provided in Sections 2.10 and 10 of the Credit Agreement, the Company is
required to pledge as additional collateral security hereunder. The balance
from time to time in the Subsidiary Guarantor Collateral Account shall
constitute part of the Collateral hereunder and shall not constitute payment of
the Secured Obligations until applied as hereinafter provided. As promptly as
possible after any amount is deposited into the Subsidiary Guarantor Collateral
SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT
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Account pursuant to the second or third sentence of Section 5.02 hereof, the
Administrative Agent shall remit the balance of such amount (if any) to the
Subsidiary Guarantor's account with Chase. However, the Administrative Agent
may (and, if instructed by the Lenders of the Credit Agreement shall) at any
time in its (or their) discretion apply or cause to be applied the balance from
time to time standing to the credit of the Subsidiary Guarantor Collateral
Account to the repayment of the principal of the Revolving Credit Loans
outstanding, to accrued interest on the principal so repaid, and to the payment
of any commitment fees with respect to the Revolving Credit Commitments, in each
case the Credit Agreement and to the extent of the Subsidiary Guarantors'
obligations hereunder. Notwithstanding the above, at any time following the
occurrence and during the continuance of an Event of Default, the Administrative
Agent may (and, if instructed by the Lenders as specified in Section 11.03 of
the Credit Agreement, shall) in its (or their) discretion apply or cause to be
applied (subject to collection) the balance from time to time standing to the
credit of the Subsidiary Guarantor Collateral Account to the payment of the
Secured Obligations in the manner specified in Section 6.09 hereof. The balance
from time to time in the Subsidiary Guarantor Collateral Account shall be
subject to withdrawal only as provided herein. [Any amount credited to the
▇▇▇▇▇▇▇ Collateral Account under (and as defined in) the Existing Guarantee and
Security Agreement shall be pledged hereunder by ▇▇▇▇▇▇▇ to the Administrative
Agent and shall be forthwith deposited into the Subsidiary Guarantor Collateral
Account by the Agent under (and as defined in) the Existing Guarantee and
Security Agreement.](1)
5.02 PROCEEDS OF ACCOUNTS. At any time after the occurrence and
during the continuance of an Event of Default, each Subsidiary Guarantor shall,
upon the request of the Administrative Agent, instruct all account debtors and
other Persons obligated in respect of all Accounts to make all payments in
respect of the Accounts either (a) directly to the Administrative Agent (by
instructing that such payments be remitted to a post office box which shall be
in the name and under the control of the control of the Administrative Agent) or
(b) to one or more other banks in the United States of America (by instructing
that such payments be remitted to a post office box which shall be in the name
and under the control of such other bank(s)) under arrangements, in form and
substance satisfactory to the Administrative Agent pursuant to which such
Subsidiary Guarantor shall have irrevocably instructed such other bank (and such
other bank shall have agreed) to remit all proceeds of such payments directly to
the Administrative Agent for deposit into the Subsidiary Guarantor Collateral
Account. All payments made to the Administrative Agent, as provided in the
preceding sentence, shall be immediately deposited in the Subsidiary Guarantor
Collateral Account. In addition to the foregoing, each Subsidiary Guarantor
agrees that at any time after the occurrence and during the continuance of an
Event of Default, if the proceeds of any Collateral hereunder (including the
payments made in respect of Accounts) shall be received by it, such Subsidiary
Guarantor shall as promptly as possible deposit such proceeds into the
Subsidiary Guarantor Collateral Account. Until so deposited, all such proceeds
shall be held in trust by each Subsidiary Guarantor for and as the Property of
the Administrative Agent and shall not be commingled with any other funds or
Property of each Subsidiary Guarantor.
--------------------
(1) Are there currently any amounts in the ▇▇▇▇▇▇▇ Collateral Account?
SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT
- 13 -
5.03 INVESTMENT OF BALANCE IN SUBSIDIARY GUARANTOR COLLATERAL
ACCOUNT. The cash balance standing to the credit of the Subsidiary Guarantor
Collateral Account shall be invested from time to time in such Permitted
Investments as the Subsidiary Guarantor (or, after the occurrence and during the
continuance of an Event of Default, the Administrative Agent) shall determine,
which Permitted Investments shall be held in the name and be under the control
of the Administrative Agent (and, if the Subsidiary Guarantor Collateral Account
is a securities account, credited to the Subsidiary Guarantor Collateral
Account), PROVIDED that (i) at any time after the occurrence and during the
continuance of an Event of Default, the Administrative Agent may (and, if
instructed by the Lenders as specified in Section 11.03 of the Credit Agreement,
shall) in its (or their) discretion at any time and from time to time elect to
liquidate any such Permitted Investments and to apply or cause to be applied the
proceeds thereof to the payment of the Secured Obligations in the manner
specified in Section 6.09 hereof and (ii) if requested by any Subsidiary
Guarantor, such Permitted Investments may be held in the name and under the
control of one or more of the Lenders (and in that connection each Lender,
pursuant to Section 11.10 of the Credit Agreement) has agreed that such
Permitted Investments shall be held by such Lender as a collateral sub-agent for
the Administrative Agent hereunder).
Section 6. FURTHER ASSURANCES; REMEDIES. In furtherance of the grant
of the pledge and security interest pursuant to Section 4 hereof, each
Subsidiary Guarantor hereby, jointly and severally, agrees with each Lender and
the Administrative Agent as follows:
6.01 DELIVERY AND OTHER PERFECTION. Each Subsidiary Guarantor shall:
(a) if any of the shares, securities, moneys or Property required to
be pledged by such Subsidiary Guarantor under clauses (a), (b) and (c) of
Section 4 hereof are received by such Subsidiary Guarantor, forthwith
either (x) transfer and deliver to the Administrative Agent such shares or
securities so received by such Subsidiary Guarantor (together with the
certificates for any such shares and securities duly endorsed in blank or
accompanied by undated stock powers duly executed in blank), all of which
thereafter shall be held by the Administrative Agent, pursuant to the terms
of this Agreement, as part of the Collateral or (y) take such other action
as the Administrative Agent shall deem necessary or appropriate to duly
record the Lien created hereunder in such shares, securities, moneys or
Property in said clauses (a), (b) and (c);
(b) deliver and pledge to the Administrative Agent any and all
Instruments, endorsed and/or accompanied by such instruments of assignment
and transfer in such form and substance as the Administrative Agent may
reasonably request; PROVIDED that so long as no Default shall have occurred
and be continuing, such Subsidiary Guarantor may retain for collection in
the ordinary course any Instruments received by such Subsidiary Guarantor
in the ordinary course of business and the Administrative Agent shall,
promptly upon request of the Subsidiary Guarantor, make appropriate
arrangements for making any Instrument pledged by such Subsidiary Guarantor
available to such Subsidiary Guarantor for purposes of presentation,
collection or renewal (any such arrangement to be effected, to the extent
deemed appropriate by the Administrative
SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT
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Agent, against trust receipt or like document);
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may
be necessary or desirable (in the judgment of the Administrative Agent) to
create, preserve, perfect or validate the security interest granted
pursuant hereto or to enable the Administrative Agent to exercise and
enforce its rights hereunder with respect to such pledge and security
interest, including, without limitation, after the occurrence of an Event
of Default, causing any or all of the Stock Collateral to be transferred of
record into the name of the Administrative Agent or its nominee (and the
Administrative Agent agrees that if any Stock Collateral is transferred
into its name or the name of its nominee, the Administrative Agent will
thereafter promptly give to such Subsidiary Guarantor copies of any notices
and communications received by it with respect to the Stock Collateral),
PROVIDED that notices to account debtors in respect of any Accounts or
Instruments shall be subject to the provisions of clause (i) below;
(d) without limiting the obligations of such Subsidiary Guarantor
under Section 6.04(c) hereof, upon the acquisition after the date hereof by
such Subsidiary Guarantor of any Equipment covered by a certificate of
title or ownership, cause the Administrative Agent to be listed as the
lienholder on such certificate of title and within 120 days of the
acquisition thereof deliver evidence of the same to the Administrative
Agent;
(e) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise ▇▇▇▇ such books and records in such
manner as the Administrative Agent may reasonably require in order to
reflect the security interests granted by this Agreement;
(f) furnish to the Administrative Agent from time to time (but,
unless a Default shall have occurred and be continuing, no more frequently
than quarterly) statements and schedules further identifying and describing
the Copyright Collateral, the Patent Collateral and the Trademark
Collateral, respectively, and such other reports in connection with the
Copyright Collateral, the Patent Collateral and the Trademark Collateral,
as the Administrative Agent may reasonably request, all in reasonable
detail;
(g) promptly upon request of the Administrative Agent, following
receipt by the Administrative Agent of any statements, schedules or reports
pursuant to clause (f) above, modify this Agreement by amending
Annexes 2, 3 and/or 4 hereto, as the case may be, to include any Copyright,
Patent or Trademark that becomes part of the Collateral under this
Agreement;
(h) permit representatives of the Administrative Agent, upon
reasonable prior notice, at any time during normal business hours to
inspect and make abstracts from its books and records pertaining to the
Collateral, and permit representatives of the
SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT
- 15 -
Administrative Agent to be present at such Subsidiary Guarantor's place of
business to receive copies of all communications and remittances relating
to the Collateral, and forward copies of any notices or communications
received by such Subsidiary Guarantor with respect to the Collateral, all
in such manner as the Administrative Agent may require; and
(i) upon the occurrence and during the continuance of any Default,
upon request of the Administrative Agent, promptly notify (and such
Subsidiary Guarantor hereby authorizes the Administrative Agent so to
notify) each account debtor in respect of any Accounts or Instruments that
such Collateral has been assigned to the Administrative Agent hereunder,
and that any payments due or to become due in respect of such Collateral
are to be made directly to the Administrative Agent.
6.02 OTHER FINANCING STATEMENTS AND LIENS. Except for financing
statements securing Liens expressly permitted by Section 9.06 of the Credit
Agreement and protective filings filed against the Company in respect of
equipment, furniture or fixtures leased to or Property consigned with any
Subsidiary Guarantor, no Subsidiary Guarantor shall file or suffer to be on
file, or authorize or permit to be filed or to be on file, in any jurisdiction,
any financing statement or like instrument with respect to the Collateral in
which the Administrative Agent is not named as the sole secured party for the
benefit of the Lenders.
6.03 PRESERVATION OF RIGHTS. The Administrative Agent shall not be
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
6.04 SPECIAL PROVISIONS RELATING TO CERTAIN COLLATERAL.
(a) STOCK COLLATERAL.
(1) Each Subsidiary Guarantor will cause the Stock Collateral to
constitute at all times 100% (or, with respect to any issuer that is a Foreign
Subsidiary, at least 65%) of the total number of shares of each class of capital
stock of each Issuer then outstanding.
(2) Unless an Event of Default shall have occurred and be continuing,
and the Administrative Agent shall have given notice to the Company of its
intention to exercise rights arising hereunder or under any other Basic Document
with respect to the Stock Collateral, each Subsidiary Guarantor shall have the
right to exercise all voting, consensual and other powers of ownership
pertaining to the Stock Collateral for all purposes not inconsistent with the
terms of this Agreement, the Credit Agreement or any other instrument or
agreement referred to herein or therein, PROVIDED that such Subsidiary Guarantor
agrees that it will not vote the Stock Collateral in any manner that is
inconsistent with the terms of this Agreement, the Credit Agreement or any such
other instrument or agreement; and the Administrative Agent shall execute and
deliver to such Subsidiary Guarantor or cause to be executed and delivered to
such Subsidiary Guarantor all such proxies, powers of attorney, dividend and
other orders, and all such instruments, without recourse, as such Subsidiary
Guarantor may reasonably request for the purpose of enabling such
SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT
- 16 -
Subsidiary Guarantor to exercise the rights and powers that it is entitled to
exercise pursuant to this Section 6.04(a)(2).
(3) Unless and until an Event of Default has occurred and is
continuing, each Subsidiary Guarantor shall be entitled to receive and retain
any dividends on the Stock Collateral paid in cash out of earned surplus.
(4) If any Event of Default shall have occurred, then so long as such
Event of Default shall continue, and whether or not the Administrative Agent or
any Lender exercises any available right to declare any Secured Obligation due
and payable or seeks or pursues any other relief or remedy available to it under
applicable law or under this Agreement, the Credit Agreement or any other
agreement relating to such Secured Obligation, all dividends and other
distributions on the Stock Collateral shall be paid directly to the
Administrative Agent and retained by it as part of the Stock Collateral, subject
to the terms of this Agreement, and, if the Administrative Agent shall so
request in writing, each Subsidiary Guarantor agrees to execute and deliver to
the Administrative Agent appropriate additional dividend, distribution and other
orders and documents to that end, PROVIDED that if such Event of Default is
cured, any such dividend or distribution theretofore paid to the Administrative
Agent shall, upon request of such Subsidiary Guarantor (except to the extent
theretofore applied to the Secured Obligations), be returned by the
Administrative Agent to such Subsidiary Guarantor.
(b) INTELLECTUAL PROPERTY.
(1) For the purpose of enabling the Administrative Agent to exercise
rights and remedies under Section 6.05 hereof at such time as the Administrative
Agent shall be lawfully entitled to exercise such rights and remedies, and for
no other purpose, each Subsidiary Guarantor hereby grants to the Administrative
Agent, to the extent assignable, an irrevocable, non-exclusive license
(exercisable without payment of royalty or other compensation to such Subsidiary
Guarantor) to use, assign, license or sublicense any of the Intellectual
Property now owned or hereafter acquired by such Subsidiary Guarantor, wherever
the same may be located, including in such license reasonable access to all
media in which any of the licensed items may be recorded or stored and to all
computer programs used for the compilation or printout thereof.
(2) Notwithstanding anything contained herein to the contrary, but
subject to the provisions of Section 9.05 of the Credit Agreement that limit the
right of any Subsidiary Guarantor to dispose of its Property, so long as no
Event of Default shall have occurred and be continuing, each Subsidiary
Guarantor will be permitted to exploit, use, enjoy, protect, license,
sublicense, assign, sell, dispose of or take other actions with respect to the
Intellectual Property in the ordinary course of the business of such Subsidiary
Guarantor. In furtherance of the foregoing, unless an Event of Default shall
have occurred and be continuing the Administrative Agent shall from time to
time, upon the request of the relevant Subsidiary Guarantor, execute and deliver
any instruments, certificates or other documents, in the form so requested, that
such Subsidiary Guarantor shall have certified are appropriate (in its judgment)
to allow it to take any action permitted above (including relinquishment of the
license provided pursuant to clause (1)
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immediately above as to any specific Intellectual Property). Further, upon the
payment in full of all of the Secured Obligations and cancellation or
termination of the Commitments and Letter of Credit Liabilities or earlier
expiration of this Agreement or release of the Collateral, the license granted
pursuant to clause (1) immediately above shall expire by its own terms without
further action on the part of the Company or the Administrative Agent. The
exercise of rights and remedies under Section 6.05 hereof by the Administrative
Agent shall not terminate the rights of the holders of any licenses or
sublicenses theretofore granted by each Subsidiary Guarantor in accordance with
the first sentence of this clause (2).
(c) MOTOR VEHICLES. At any time after the occurrence and during the
continuance of an Event of Default, each Subsidiary Guarantor shall, upon the
request of the Administrative Agent, deliver to the Administrative Agent
originals of the certificates of title or ownership for the Motor Vehicles owned
by it with the Administrative Agent listed as lienholder and take such other
action as the Administrative Agent shall deem appropriate to perfect the
security interest created hereunder in all such Motor Vehicles.
6.05 EVENTS OF DEFAULT, ETC. During the period during which an Event
of Default shall have occurred and be continuing:
(a) each Subsidiary Guarantor shall, at the request of the
Administrative Agent, assemble the Collateral owned by it at such place or
places, reasonably convenient to both the Administrative Agent and such
Subsidiary Guarantor, designated in its request;
(b) the Administrative Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and may
extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, any of the Collateral;
(c) the Administrative Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
Uniform Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under
the laws in effect in any jurisdiction where any rights and remedies
hereunder may be asserted, including, without limitation, the right, to the
maximum extent permitted by law, to exercise all voting, consensual and
other powers of ownership pertaining to the Collateral as if the
Administrative Agent were the sole and absolute owner thereof (and such
Subsidiary Guarantor agrees to take all such action as may be appropriate
to give effect to such right);
(d) the Administrative Agent in its discretion may, in its name or in
the name of the relevant Subsidiary Guarantor or otherwise, demand, ▇▇▇
for, collect or receive any money or Property at any time payable or
receivable on account of or in exchange for any of the Collateral, but
shall be under no obligation to do so; and
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(e) the Administrative Agent may, upon ten business days' prior
written notice to the relevant Subsidiary Guarantor of the time and place,
with respect to the Collateral or any part thereof that shall then be or
shall thereafter come into the possession, custody or control of the
Administrative Agent, the Lenders or any of their respective agents, sell,
lease, assign or otherwise dispose of all or any part of such Collateral,
at such place or places as the Administrative Agent deems best, and for
cash or for credit or for future delivery (without thereby assuming any
credit risk), at public or private sale, without demand of performance or
notice of intention to effect any such disposition or of the time or place
thereof (except such notice as is required above or by applicable statute
and cannot be waived), and the Administrative Agent or any Lender or anyone
else may be the purchaser, lessee, assignee or recipient of any or all of
the Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of such Subsidiary
Guarantor, any such demand, notice and right or equity being hereby
expressly waived and released. In the event of any sale, assignment, or
other disposition of any of the Trademark Collateral, the goodwill
connected with and symbolized by the Trademark Collateral subject to such
disposition shall be included, and such Subsidiary Guarantor shall supply
to the Administrative Agent or its designee, for inclusion in such sale,
assignment or other disposition, all Intellectual Property relating to such
Trademark Collateral. The Administrative Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
the sale, and such sale may be made at any time or place to which the sale
may be so adjourned.
The proceeds of each collection, sale or other disposition under this
Section 6.05, including by virtue of the exercise of the license granted to the
Administrative Agent in Section 6.04(b) hereof, shall be applied in accordance
with Section 6.09 hereof.
Each Subsidiary Guarantor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and applicable
state securities laws, the Administrative Agent may be compelled, with respect
to any sale of all or any part of the Collateral, to limit purchasers to those
who will agree, among other things, to acquire the Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. Each Subsidiary Guarantor acknowledges that any such private sales may
be at prices and on terms less favorable to the Administrative Agent than those
obtainable through a public sale without such restrictions, and, notwithstanding
such circumstances, agrees that any such private sale shall be deemed to have
been made in a commercially reasonable manner and that the Administrative Agent
shall have no obligation to engage in public sales and no obligation to delay
the sale of any Collateral for the period of time necessary to permit the
respective Issuer or issuer thereof to register it for public sale.
6.06 DEFICIENCY. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 6.05 hereof are
insufficient to cover the costs and expenses of
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such realization and the payment in full of the Secured Obligations, each
Subsidiary Guarantor shall remain liable, jointly and severally, for any
deficiency.
6.07 REMOVALS, ETC. Without at least 10 days' prior written notice
to the Administrative Agent, no Subsidiary Guarantor shall (i) maintain any of
its books and records with respect to the Collateral at any office or maintain
its principal place of business at any place, or permit any Inventory or
Equipment to be located anywhere, other than at the address indicated beneath
the signature of the Company to the Credit Agreement or at one of the locations
identified in Annex 6 hereto or in transit from one of such locations to another
or (ii) change its name, or the name under which it does business, from the name
shown on the signature pages hereto.
6.08 PRIVATE SALE. The Administrative Agent and the Lenders shall
incur no liability as a result of the sale of the Collateral, or any part
thereof, at any private sale pursuant to Section 6.05 hereof conducted in a
commercially reasonable manner. Each Subsidiary Guarantor hereby waives any
claims against the Administrative Agent or any Lender arising by reason of the
fact that the price at which the Collateral may have been sold at such a private
sale was less than the price that might have been obtained at a public sale or
was less than the aggregate amount of the Secured Obligations, even if the
Administrative Agent accepts the first offer received and does not offer the
Collateral to more than one offeree.
6.09 APPLICATION OF PROCEEDS. Except as otherwise herein expressly
provided and except as provided below in this Section 6.09, the proceeds of any
collection, sale or other realization of all or any part of the Collateral
pursuant hereto, and any other cash at the time held by the Administrative Agent
under Section 5 hereof or this Section 6, shall be applied by the Administrative
Agent:
FIRST, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Administrative Agent and the fees and expenses of its
agents and counsel, and all expenses incurred and advances made by the
Administrative Agent in connection therewith;
NEXT, to the payment in full of the Secured Obligations, in each case
equally and ratably in accordance with the respective amounts thereof then
due and owing or as the Lenders holding the same may otherwise agree; and
FINALLY, to the payment to such Subsidiary Guarantor, or its
successors or assigns, or as a court of competent jurisdiction may direct,
of any surplus then remaining.
As used in this Section 6, "PROCEEDS" of Collateral shall mean cash,
securities and other Property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of any Subsidiary Guarantor or any issuer of
or obligor on any of the Collateral.
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6.10 ATTORNEY-IN-FACT. Without limiting any rights or powers granted
by this Agreement to the Administrative Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the Administrative Agent is hereby appointed the
attorney-in-fact of each Subsidiary Guarantor for the purpose of carrying out
the provisions of this Section 6 and taking any action and executing any
instruments that the Administrative Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, so long as the Administrative Agent shall be entitled under this
Section 6 to make collections in respect of the Collateral, the Administrative
Agent shall have the right and power to receive, endorse and collect all checks
made payable to the order of such Subsidiary Guarantor representing any
dividend, payment or other distribution in respect of the Collateral or any part
thereof and to give full discharge for the same.
6.11 PERFECTION. Prior to or concurrently with the execution and
delivery of this Agreement, each Subsidiary Guarantor shall (i) file such
financing statements and other documents in such offices as the Administrative
Agent may request to perfect the security interests granted by Section 4 of this
Agreement and (ii) deliver to the Administrative Agent all certificates
identified in Annex 1 hereto, accompanied by undated stock powers duly executed
in blank.
6.12 TERMINATION; RELEASE OF LIENS. When all Secured Obligations
shall have been paid in full and the Commitments of the Lenders under the Credit
Agreement and all Letter of Credit Liabilities shall have expired or been
terminated, this Agreement shall terminate, and the Administrative Agent shall
forthwith cause to be assigned, transferred and delivered, against receipt but
without any recourse, warranty or representation whatsoever, any remaining
Collateral and money received in respect thereof, to or on the order of the
relevant Subsidiary Guarantor and to be released and canceled all licenses and
rights referred to in Section 6.04(b) hereof. The Administrative Agent shall
also execute and deliver to such Subsidiary Guarantor upon such termination such
Uniform Commercial Code termination statements, certificates for terminating the
Liens on the Motor Vehicles and such other documentation as shall be reasonably
requested by such Subsidiary Guarantor to effect the termination and release of
the Liens on the Collateral. The Liens granted to the Administrative Agent
hereby shall also be released in accordance with Sections 9.25 and 11.09 of the
Credit Agreement.
6.13 FURTHER ASSURANCES. Each Subsidiary Guarantor agrees that, from
time to time upon the written request of the Administrative Agent, such
Subsidiary Guarantor will execute and deliver such further documents and do such
other acts and things as the Administrative Agent may reasonably request in
order fully to effect the purposes of this Agreement.
6.14 RELEASE OF MOTOR VEHICLES. So long as no Default shall have
occurred and be continuing, upon the request of the relevant Subsidiary
Guarantor, the Administrative Agent shall execute and deliver to the Subsidiary
- 21 -
Guarantor such instruments as such Subsidiary Guarantor shall reasonably request
to remove the notation of the Administrative Agent as lienholder on any
certificate of title for any Motor Vehicle; PROVIDED that any such instruments
shall be delivered, and the release effective only upon receipt by the
Administrative Agent of a certificate from such Subsidiary Guarantor stating
that the Motor Vehicle the lien on which is to be released is to be sold or has
suffered a casualty loss (with title thereto passing to the casualty insurance
company (or its designee) therefor in settlement of the claim for such loss) and
any proceeds of such sale or casualty loss being paid to the Administrative
Agent hereunder.
Section 7. MISCELLANEOUS.
7.01 NO WAIVER. No failure on the part of the Administrative Agent
or any Lender to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Administrative
Agent or any Lender of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
7.02 NOTICES. All notices, requests, consents and demands hereunder
shall be in writing and telecopied or delivered to the intended recipient at its
"Address for Notices" specified pursuant to Section 12.02 of the Credit
Agreement and shall be deemed to have been given at the times specified in said
Section 12.02.
7.03 EXPENSES. Each Subsidiary Guarantor, jointly and severally,
agrees to reimburse each of the Lenders and the Administrative Agent for all
reasonable costs and expenses of the Lenders and the Administrative Agent
(including, without limitation, the reasonable fees and expenses of legal
counsel) in connection with (i) any Default and any enforcement or collection
proceeding resulting therefrom, including, without limitation, all manner of
participation in or other involvement with (w) performance by the Administrative
Agent of any obligations of such Subsidiary Guarantor in respect of the
Collateral that such Subsidiary Guarantor has failed or refused to perform, (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement in respect of any of the Collateral, and
for the care of the Collateral and defending or asserting rights and claims of
the Administrative Agent in respect thereof, by litigation or otherwise,
including expenses of insurance, (y) judicial or regulatory proceedings and (z)
workout, restructuring or other negotiations or proceedings (whether or not the
workout, restructuring or transaction contemplated thereby is consummated) and
(ii) the enforcement of this Section 7.03, and all such costs and expenses shall
be Secured Obligations entitled to the benefits of the collateral security
provided pursuant to Section 4 hereof.
7.04 AMENDMENTS, ETC. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by each
Subsidiary Guarantor and the Administrative Agent (with the consent of the
Lenders as specified in Section 11.09 of the Credit Agreement). Any such
amendment or waiver shall be binding upon the Administrative Agent
- 22 -
and each Lender, each holder of any of the Secured Obligations and each
Subsidiary Guarantor.
7.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of each
Subsidiary Guarantor, the Administrative Agent, the Lenders and each holder of
any of the Secured Obligations (PROVIDED, however, that no Subsidiary Guarantor
shall assign or transfer its rights hereunder without the prior written consent
of the Administrative Agent).
7.06 CAPTIONS. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
7.07 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
7.08 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
7.09 AGENTS AND ATTORNEYS-IN-FACT. The Administrative Agent may
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
7.10 SEVERABILITY. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Administrative
Agent and the Lenders in order to carry out the intentions of the parties hereto
as nearly as may be possible and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
- 23 -
IN WITNESS WHEREOF, the parties hereto have caused this Guarantee and
Security Agreement to be duly executed and delivered as of the day and year
first above written.
▇▇▇▇▇▇▇ BROS., INC.
By /s/ ▇▇▇▇ ▇. Holleen
-------------------------
Title: Vice President
AZERTY INCORPORATED
By /s/ ▇▇▇▇ ▇. Holleen
-------------------------
Title: Vice President
POSITIVE ID WHOLESALE INC.
By /s/ ▇▇▇▇ ▇. Holleen
-------------------------
Title: Vice President
AP SUPPORT SERVICES, INC.
By /s/ ▇▇▇▇ ▇. Holleen
-------------------------
Title: Vice President
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ [ILLEGIBLE]
-------------------------
Title: VP
ANNEX 1
PLEDGED STOCK
[See Section 4.05(b) and (c)]
RECORD OF
CERTIFICATE BENEFICIAL NUMBER
ISSUER NUMBER OWNER SHARES PAR VALUE CLASS
------ ----------- ----------- ------ --------- -----
NONE
ANNEX 1 TO SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
[See Section 4.05(d)]
▇▇▇▇▇▇▇ BROS., INC.
Title Date Filed Registration No. Effective Date
----- ---------- ---------------- --------------
NONE
AZERTY INCORPORATED
Title Date Filed Registration No. Effective Date
----- ---------- ---------------- --------------
NONE
POSITIVE ID WHOLESALE INC.
Title Date Filed Registration No. Effective Date
----- ---------- ---------------- --------------
NONE
AP SUPPORT SERVICES INCORPORATED
Title Date Filed Registration No. Effective Date
----- ---------- ---------------- --------------
NONE
ANNEX 2 TO SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT
ANNEX 3
LIST OF PATENTS AND PATENT APPLICATIONS
[See Section 4.05(d)]
▇▇▇▇▇▇▇ BROS, INC.
File Patent Country Registration No. Date
---- ------ ------- ---------------- ----
NONE
AZERTY INCORPORATED
File Patent Country Registration No. Date
---- ------ ------- ---------------- ----
NONE
POSITIVE ID WHOLESALE INC.
File Patent Country Registration No. Date
---- ------ ------- ---------------- ----
NONE
AP SUPPORT SERVICES INCORPORATED
File Patent Country Registration No. Date
---- ------ ------- ---------------- ----
NONE
ANNEX 3 TO SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT
ANNEX 4
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS
[See Section 4.05(d)]
U.S. TRADEMARKS
▇▇▇▇▇▇▇ BROS., INC.
Application (A)
Registration (R) Registration
▇▇▇▇ or Series No. (S) or Filing Date
--------------------------------------------------------------------------------
NONE
AZERTY INCORPORATED
Application (A)
Registration (R) Registration
▇▇▇▇ or Series No. (S) or Filing Date
--------------------------------------------------------------------------------
POSITIVE ID WHOLESALE & Design (U.S.) 75/058,145(A) [__________]
AP SUPPORT SERVICES & Design 75/119,438(A)
AZERTY 1,357,709(R)
AZERTY 1,496,309(R)
AZERTY 450,077(R)
POSITIVE ID WHOLESALE & Design 75/058,145(A)
ANNEX 4 TO SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT
ANNEX 4
POSITIVE ID WHOLESALE INC.
Application (A)
▇▇▇▇ Registration (R) Registration
or Series No. (S) or Filing Date
--------------------------------------------------------------------------------
NONE
AP SUPPORT SERVICES INCORPORATED
Application (A)
Registration (R) Registration
▇▇▇▇ or Series No. (S) or Filing Date
-------------------------------------------------------------------------------------------------
AP SUPPORT SERVICES & Design (Canada) 484,974(R) [__________]
AP SUPPORT SERVICES & Design (U.S., Class 35, 39) 75/119,438(A) [__________]
ANNEX 4 TO SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT
FOREIGN TRADEMARKS
▇▇▇▇▇▇▇ BROS, INC.
Application (A) Registration or
▇▇▇▇ Registration (R) Country Filing Date (F)
--------------------------------------------------------------------------------
NONE
AZERTY INCORPORATED
Application (A) Registration or
▇▇▇▇ Registration (R) Country Filing Date (F)
--------------------------------------------------------------------------------
AP SUPPORT SERVICES & 484,974(R) Canada
Design
POSITIVE ID WHOLESALE INC.
Application (A) Registration or
▇▇▇▇ Registration (R) Country Filing Date (F)
--------------------------------------------------------------------------------
NONE
AP SUPPORT SERVICES INCORPORATED
Application (A) Registration or
▇▇▇▇ Registration (R) Country Filing Date (F)
--------------------------------------------------------------------------------
NONE
ANNEX 5
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
[See Section 4.05(d), (e) and (f)]
▇▇▇▇▇▇▇ BROS, INC.
NONE
AZERTY INCORPORATED
NONE
POSITIVE ID WHOLESALE INC.
NONE
AP SUPPORT SERVICES INCORPORATED
NONE
ANNEX 5 TO SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT
ANNEX 6
LIST OF LOCATIONS
[See Section 6.07]
▇▇▇▇▇▇▇ BROS., INC.
CALIFORNIA
LEASEHOLD
- Union City (San Francisco area) -
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
- ▇▇▇▇ (▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇) - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
- ▇▇▇▇▇ (▇▇▇▇▇ ▇▇▇▇) - ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
- ▇▇▇▇▇ - ▇▇▇▇-▇▇ Distribution Drive
GEORGIA
LEASEHOLD
- Atlanta - ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇
- Glendale Heights - 100 Exchange Blvd.
INDIANA
- Indianapolis - ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
- ▇▇▇▇▇▇▇ (▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇) - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
- ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - 5505 ▇. ▇▇▇▇▇▇▇ (subleased to Sears ▇▇▇▇▇▇▇)
MARYLAND
LEASEHOLD
- Harmans - ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
ANNEX 6 TO GUARANTEE AND SECURITY AGREEMENT
- 2 -
MASSACHUSETTS
LEASEHOLD
- ▇▇▇▇▇▇ - ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
LEASEHOLD
- Edison - 60 Brunswick Avenue
NORTH CAROLINA
- Charlotte - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇
▇▇▇▇
- ▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇▇▇▇ ▇▇▇▇) - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ (subleased through
2/1/00 to ▇▇▇▇▇▇▇▇ Distribution)
TEXAS
- Dallas - ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
- Houston - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
- ▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇-▇▇▇▇ Greatland Dr., ▇▇▇▇. ▇
▇▇▇▇▇▇▇▇▇▇
- ▇▇▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇) - ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ INCORPORATED:
- Azerty owns a 28,000 sq. ft. facility, located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. for which the legal description is S.B.L. No.
161.14-2-4.112.
POSITIVE ID WHOLESALE INC.:
NONE
ANNEX 6 TO GUARANTEE AND SECURITY AGREEMENT
- 3 -
AP SUPPORT SERVICES INCORPORATED:
HEADQUARTERS
▇▇▇▇▇▇▇ BROS. INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
AZERTY INCORPORATED
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
POSITIVE ID WHOLESALE INC.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇ SUPPORT SERVICES INCORPORATED
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
ANNEX 6 TO GUARANTEE AND SECURITY AGREEMENT