EXECUTION COPY
PLEDGE AND SECURITY AGREEMENT
DATED AS OF JANUARY 24, 2005
AMONG
JARDEN CORPORATION
AS A GRANTOR
AND
EACH OTHER GRANTOR
FROM TIME TO TIME PARTY HERETO
AND
CANADIAN IMPERIAL BANK OF COMMERCE
AS ADMINISTRATIVE AGENT
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINED TERMS.........................................................................1
Section 1.1 Definitions..................................................................1
Section 1.2 Certain Other Terms..........................................................6
ARTICLE II GRANT OF SECURITY INTEREST............................................................7
Section 2.1 Collateral...................................................................7
Section 2.2 Grant of Security Interest in Collateral.....................................8
Section 2.3 Cash Collateral Accounts.....................................................8
ARTICLE III REPRESENTATIONS AND WARRANTIES........................................................8
Section 3.1 Title; No Other Liens........................................................8
Section 3.2 Perfection and Priority......................................................9
Section 3.3 Jurisdiction of Organization; Chief Executive Office.........................9
Section 3.4 Inventory and Equipment......................................................9
Section 3.5 Pledged Collateral...........................................................9
Section 3.6 Accounts....................................................................10
Section 3.7 Intellectual Property.......................................................10
Section 3.8 Deposit Accounts; Securities Accounts.......................................11
Section 3.9 Commercial Tort Claims......................................................11
ARTICLE IV COVENANTS............................................................................11
Section 4.1 Generally...................................................................11
Section 4.2 Maintenance of Perfected Security Interest; Further Documentation...........12
Section 4.3 Changes in Locations, Name, Etc.............................................12
Section 4.4 Pledged Collateral..........................................................13
Section 4.5 Accounts....................................................................15
Section 4.6 Delivery of Instruments and Chattel Paper...................................15
Section 4.7 Intellectual Property.......................................................15
Section 4.8 Payment of Obligations......................................................17
Section 4.9 Notice of Commercial Tort Claims............................................17
ARTICLE V REMEDIAL PROVISIONS..................................................................18
Section 5.1 Code and Other Remedies.....................................................18
Section 5.2 Accounts and Payments in Respect of General Intangibles.....................19
Section 5.3 Pledged Collateral..........................................................20
Section 5.4 Proceeds to be Turned Over to Administrative Agent..........................21
Section 5.5 Registration Rights.........................................................21
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 5.6 Deficiency..................................................................22
Section 5.7 Gaming Authorizations.......................................................22
ARTICLE VI THE ADMINISTRATIVE AGENT.............................................................22
Section 6.1 Administrative Agent's Appointment as Attorney-in-Fact......................22
Section 6.2 Duty of Administrative Agent................................................24
Section 6.3 Authorization of Financing Statements.......................................24
Section 6.4 Authority of Administrative Agent...........................................24
ARTICLE VII MISCELLANEOUS........................................................................25
Section 7.1 Amendments in Writing.......................................................25
Section 7.2 Notices.....................................................................25
Section 7.3 No Waiver by Course of Conduct; Cumulative Remedies.........................25
Section 7.4 Successors and Assigns......................................................25
Section 7.5 Counterparts................................................................26
Section 7.6 Severability................................................................26
Section 7.7 Section Headings............................................................26
Section 7.8 Entire Agreement............................................................26
Section 7.9 Governing Law...............................................................26
Section 7.10 Additional Grantors.........................................................26
Section 7.11 Application of Gaming Regulations...........................................26
Section 7.12 Release of Collateral.......................................................27
Section 7.13 Reinstatement...............................................................27
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TABLE OF CONTENTS
(CONTINUED)
ANNEXES AND SCHEDULES
Annex 1 Form of Deposit Account Control Agreement
Annex 2 Form of Securities Account Control Agreement
Annex 3 Form of Pledge Amendment
Annex 4 Form of Joinder Agreement
Annex 5 Form of Short Form Intellectual Property Security Agreement
Schedule 1 Jurisdiction of Organization; Principal Executive Office
Schedule 2 Pledged Collateral
Schedule 3 Filings
Schedule 4 Location of Inventory and Equipment
Schedule 5 Intellectual Property
Schedule 6 Bank Accounts; Control Accounts
Schedule 7 Commercial Tort Claims
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PLEDGE AND SECURITY AGREEMENT, dated as of January 24, 2005,
by JARDEN CORPORATION (the "Borrower") and each of the other entities listed on
the signature pages hereof or that becomes a party hereto pursuant to Section
7.10 (Additional Grantors) (each a "Grantor" and, collectively, the "Grantors"),
in favor of Canadian Imperial Bank of Commerce ("CIBC"), as agent (in such
capacity, the "Administrative Agent") for the Secured Parties (as defined in the
Credit Agreement referred to below).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of January
24, 2005 (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lenders and L/C Issuers party thereto, the Administrative Agent, Citicorp USA,
Inc. ("CUSA"), as syndication agent for the Lenders and L/C Issuers (in such
capacity, the "Syndication Agent"), and Bank of America, N.A., National City
Bank of Indiana and SunTrust Bank, as co-documentation agents, the Lenders and
the L/C Issuers have severally agreed to make extensions of credit to the
Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, the Grantors other than the Borrower are party to the
Guaranty pursuant to which they have guaranteed the Obligations (as defined in
the Credit Agreement); and
WHEREAS, it is a condition precedent to the obligation of the
Lenders and the L/C Issuers to make their respective extensions of credit to the
Borrower under the Credit Agreement that the Grantors shall have executed and
delivered this Agreement to the Administrative Agent;
NOW, THEREFORE, in consideration of the premises and to induce
the Lenders, the L/C Issuers and the Administrative Agent to enter into the
Credit Agreement and to induce the Lenders and the L/C Issuers to make their
respective extensions of credit to the Borrower thereunder, each Grantor hereby
agrees with the Administrative Agent as follows:
ARTICLE I DEFINED TERMS
SECTION 1.1 DEFINITIONS
(a) Unless otherwise defined herein, capitalized terms defined
in the Credit Agreement and used herein have the meanings given to them in the
Credit Agreement.
(b) Terms used herein without definition that are defined in
the UCC have the meanings given to them in the UCC, including the following
terms (which are capitalized herein):
"ACCOUNT DEBTOR"
"ACCOUNT"
"CERTIFICATED SECURITY"
"CHATTEL PAPER"
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"COMMERCIAL TORT CLAIM"
"COMMODITY ACCOUNT"
"COMMODITY INTERMEDIARY"
"CONTROL ACCOUNT"
"DEPOSIT ACCOUNT"
"DOCUMENTS"
"ENTITLEMENT HOLDER"
"ENTITLEMENT ORDER"
"EQUIPMENT"
"FINANCIAL ASSET"
"GENERAL INTANGIBLE"
"GOODS"
"INSTRUMENTS"
"INVENTORY"
"INVESTMENT PROPERTY"
"LETTER-OF-CREDIT RIGHT"
"PROCEEDS"
"SECURITIES ACCOUNT"
"SECURITIES INTERMEDIARY"
"SECURITY"
"SECURITY ENTITLEMENT"
(c) The following terms shall have the following meanings:
"ADDITIONAL PLEDGED COLLATERAL" means any Pledged Collateral
acquired by any Grantor after the date hereof and in which a security interest
is granted pursuant to Section 2.2 (Grant of Security Interest in Collateral),
including, to the extent a security interest is granted therein pursuant to
Section 2.2 (Grant of Security Interest in Collateral), (i) all Stock and Stock
Equivalents of any Person that are acquired by any Grantor after the date
hereof, together with all certificates, instruments or other documents
representing any of the foregoing and all Security
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Entitlements of any Grantor in respect of any of the foregoing, (ii) all
additional Indebtedness from time to time owed to any Grantor by any obligor on
the Pledged Notes and the Instruments evidencing such Indebtedness and (iii) all
interest, cash, Instruments and other property or Proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any of the foregoing. "Additional Pledged Collateral" may be General
Intangibles, Instruments or Investment Property.
"AGREEMENT" means this Pledge and Security Agreement.
"APPROVED SECURITIES INTERMEDIARY" means a Securities
Intermediary or Commodity Intermediary selected or approved by the
Administrative Agent (such approval not to be unreasonably withheld).
"COLLATERAL" has the meaning specified in Section 2.1
(Collateral).
"CONTROL ACCOUNT" means a Securities Account or Commodity
Account that is the subject of an effective Securities Account Control Agreement
and that is maintained by any Loan Party with an Approved Securities
Intermediary. "Control Account" includes all Financial Assets held in a
Securities Account or a Commodity Account and all certificates and instruments,
if any, representing or evidencing the Financial Assets contained therein.
"COPYRIGHT LICENSES" means any written agreement naming any
Grantor as licensor or licensee granting any right under any Copyright,
including the grant of any right to copy, publicly perform, create derivative
works, manufacture, distribute, exploit or sell materials derived from any
Copyright.
"COPYRIGHTS" means (a) all copyrights arising under the laws
of the United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished, all
registrations and recordings thereof and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any foreign counterparts thereof, and (b)
the right to obtain all renewals thereof.
"DEPOSIT ACCOUNT CONTROL AGREEMENT" means a letter agreement,
substantially in the form of Annex 1 (Form of Deposit Account Control Agreement)
(with such changes as may be agreed to by the Agents) or such other form as may
be reasonably acceptable to the Agents, executed by the relevant Grantor, the
Administrative Agent and the relevant Deposit Account Bank.
"EXCLUDED ACCOUNTS" means Accounts that have been or may be
sold, assigned or transferred by a Grantor to a Factoring Company or Accounts in
respect of which the applicable Grantor has granted or may ▇▇▇▇▇ ▇ ▇▇▇▇ to a
Factoring Company pursuant to a Factoring Arrangement that is permitted under
the Credit Agreement.
"EXCLUDED EQUITY" means (i) any Securities issued and held by
the Borrower as treasury securities, (ii) any Voting Stock of a non-U.S. Person
in excess of 65% of the total outstanding Voting Stock of such Non-U.S. Person
and (iii) solely to the extent that any Domestic Person that is a "disregarded
entity" for purposes of the Code (each such Person, a "DISREGARDED ENTITY") owns
the Equity Securities of any Non-U.S. Person, (x) any Voting Stock of such
Disregarded Entity in excess of 65% of the total outstanding Voting Stock of
such Disregarded
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Entity and (y) all of the Voting Stock that such Disregarded Entity owns in its
Subsidiaries that are Non-U.S. Persons. For the purposes of this definition,
"Voting Stock" means, as to any issuer, the issued and outstanding shares of
each class of capital stock or other ownership interests of such issuer entitled
to vote (within the meaning of Treasury Regulations ss. 1.956-2(c)(2)).
"EXCLUDED PROPERTY" means, collectively, (i) Excluded Equity,
(ii) Specified I/P Licensed Property having an aggregate value not to exceed
$3,000,000, (iii) any permit, lease (other than the ▇▇▇▇▇▇▇ IRB Leases),
license, contract, instrument or other agreement held by any Grantor that
prohibits or requires the consent of any Person other than the Borrower and its
Affiliates as a condition to the creation by such Grantor of a Lien thereon or
transfer thereof or any other Disposition thereof that may be effected hereby,
or any permit, lease, license (including any Specified I/P License Agreement),
contract or other agreement held by any Grantor to the extent that any Law
applicable thereto prohibits the creation of a Lien thereon, but only, in each
case, to the extent, and for so long as, such prohibition is not terminated or
rendered unenforceable or otherwise deemed ineffective by the UCC or any other
Law, (iv) Equipment owned by any Grantor that is subject to a purchase money
Lien or a Capital Lease if the contract or other agreement in which such Lien is
granted (or in the documentation providing for such Capital Lease) prohibits or
requires the consent of any Person other than the Borrower and its Affiliates as
a condition to the creation of any other Lien on such Equipment, (v) any slot
machine to the extent the grant of a Lien on such slot machine is not permitted
by, or is prohibited by, applicable Gaming Laws, or any interest in any slot
machine issued by any Governmental Authority (including the Missouri Gaming
Commission) to the extent the grant of a Lien on any such interest is not
permitted by, or is prohibited by, applicable Gaming Laws and (vi) all Excluded
Accounts to the extent the Disposition of such Excluded Accounts is permitted by
the Credit Agreement; provided, however, "Excluded Property" shall not include
any Proceeds, substitutions or replacements of Excluded Property (unless such
Proceeds, substitutions or replacements would constitute Excluded Property).
"INTELLECTUAL PROPERTY" means, collectively, all rights,
priorities and privileges of any Grantor relating to intellectual property,
whether arising under United States, multinational or foreign laws or otherwise,
including Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks,
Trademark Licenses, trade secrets and Internet domain names, and all rights to
▇▇▇ at law or in equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" means each short
form security agreement, substantially in the form of Annex 5 (Form of Short
Form Intellectual Property Security Agreement), executed by the relevant
Grantors and the Administrative Agent.
"INTERCOMPANY NOTE" means any promissory note evidencing loans
made by any Grantor or any of its Subsidiaries to any of its Subsidiaries or
another Grantor.
"LLC" means each limited liability company in which a Grantor
has an interest, including those set forth on Schedule 2 (Pledged Collateral).
"LLC AGREEMENT" means each operating agreement with respect to
a LLC, as each agreement has heretofore been, and may hereafter be, amended,
restated, supplemented or otherwise modified from time to time.
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"MATERIAL INTELLECTUAL PROPERTY" means Intellectual Property
(excluding Non-Material Domain Names) owned by or licensed to a Grantor and
material to the conduct of the business of the Borrower and it Subsidiaries
taken as a whole.
"NON-MATERIAL ACCOUNTS" means all Deposit Accounts and all
Securities Accounts with respect to which (i) the balance in any such individual
Deposit Account or the value of the Financial Assets and other property in any
such individual Securities Account does not exceed $1,500,000 and (ii) the sum
of the aggregate balance in all such Deposit Accounts and the aggregate value of
all such Financial Assets and other property in all such Securities Accounts
does not exceed $12,500,000.
"NON-MATERIAL DOMAIN NAMES" means those domain names
registered to any Grantor that, in the aggregate for all such domain names,
account for or are used in connection with less than 1% of the consolidated
annual sales of the Borrower and its Subsidiaries, taken as a whole.
"NON-MATERIAL LOCATIONS" means those leased or other
third-party locations at which tangible personal property Collateral is located,
where the value of all such Collateral at any such location does not exceed
$5,000,000 and the aggregate value of all such Collateral in all such locations
does not exceed $25,000,000.
"PARTNERSHIP" means each partnership in which a Grantor has an
interest, including those set forth on Schedule 2 (Pledged Collateral).
"PARTNERSHIP AGREEMENT" means each partnership agreement
governing a Partnership, as each such agreement has heretofore been, and may
hereafter be, amended, restated, supplemented or otherwise modified from time to
time.
"PATENTS" means (a) all letters patent of the United States,
any other country or any political subdivision thereof and all reissues and
extensions thereof, (b) all applications for letters patent of the United States
or any other country and all divisionals, continuations and
continuations-in-part thereof and (c) all rights to obtain any reissues,
continuations or continuations-in-part of the foregoing.
"PATENT LICENSE" means all agreements providing for the grant
by or to any Grantor of any right to manufacture, have manufactured, use,
import, sell or offer for sale any invention covered in whole or in part by a
Patent.
"PLEDGED CERTIFICATED STOCK" means all Certificated Securities
and any other Stock and Stock Equivalent of a Person evidenced by a certificate,
Instrument or other equivalent document, in each case owned by any Grantor,
including all Stock listed on Schedule 2 (Pledged Collateral).
"PLEDGED COLLATERAL" means, collectively, the Pledged Stock,
Pledged Notes, any other Investment Property of any Grantor (other than
Investment Property whose value, in the aggregate, does not exceed $1,000,000),
all Chattel Paper, certificates or other Instruments representing any of the
foregoing and all Security Entitlements of any Grantor in respect of any of the
foregoing. Pledged Collateral may be General Intangibles, Instruments or
Investment Property.
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"PLEDGED NOTES" means all right, title and interest of any
Grantor in Instruments evidencing any Indebtedness owed to such Grantor to the
extent the outstanding principal amount of such notes exceeds $1,000,000 in the
aggregate, including all Indebtedness described on Schedule 2 (Pledged
Collateral), issued by the obligors named therein.
"PLEDGED STOCK" means all Pledged Certificated Stock and all
Pledged Uncertificated Stock. For purposes of this Agreement, the term "Pledged
Stock" shall not include any Excluded Equity.
"PLEDGED UNCERTIFICATED STOCK" means any Stock or Stock
Equivalent of any Person that is not a Pledged Certificated Stock, including all
right, title and interest of any Grantor as a limited or general partner in any
Partnership or as a member of any LLC and all right, title and interest of any
Grantor in, to and under any Partnership Agreement or LLC Agreement to which it
is a party.
"SECURITIES ACCOUNT CONTROL AGREEMENT" means a letter
agreement, substantially in the form of Annex 2 (Form of Securities Account
Control Agreement) (with such changes as may be agreed to by the Agents) or such
other form as may be reasonably acceptable to the Agents, executed by the
relevant Grantor, the Administrative Agent and the relevant Approved Securities
Intermediary.
"SPECIFIED ACCOUNTS" means any payroll, withholding tax and
other fiduciary accounts maintained by a Grantor.
"SPECIFIED I/P LICENSE AGREEMENT" means each license agreement
entered into by a Grantor, as licensee, in the ordinary course of such Grantor's
business, pursuant to which such Grantor has agreed to refrain from granting a
Lien or security interest on the Equipment and Inventory of such Grantor made or
produced utilizing the Intellectual Property granted pursuant to such license
agreement; provided that the aggregate value of all such Equipment and Inventory
produced using such Intellectual Property shall not exceed $3,000,000.
"SPECIFIED I/P LICENSED PROPERTY" means the Equipment and
Inventory of a Grantor that is made or produced utilizing Intellectual Property
licensed by such Grantor pursuant to the terms of a Specified I/P License
Agreement; provided that the aggregate value of all such Equipment and Inventory
produced using such Intellectual Property shall not exceed $3,000,000.
"TRADEMARK LICENSE" means any agreement providing for the
grant by or to any Grantor of any right to use any Trademark.
"TRADEMARKS" means (a) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and, in each
case, all goodwill associated therewith, whether now existing or hereafter
adopted or acquired, all registrations and recordings thereof and all
applications in connection therewith, in each case whether in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof or any other country or any political subdivision
thereof, or otherwise, and all common-law rights related thereto, and (b) the
right to obtain all renewals thereof.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the State of New York; provided, however, that, in the event that,
by reason of mandatory
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provisions of Law, any of the attachment, perfection or priority of the
Administrative Agent's and the Secured Parties' security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term "UCC" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such attachment, perfection or priority and
for purposes of definitions related to such provisions.
"VEHICLES" means all vehicles covered by a certificate of
title law of any state.
SECTION 1.2 CERTAIN OTHER TERMS
(a) In this Agreement, in the computation of periods of time
from a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding" and the
word "through" means "to and including."
(b) The terms "herein," "hereof," "hereto" and "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
Article, Section, subsection or clause in this Agreement.
(c) References herein to an Annex, Schedule, Article, Section,
subsection or clause refer to the appropriate Annex or Schedule to, or Article,
Section, subsection or clause in this Agreement.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) Where the context requires, provisions relating to any
Collateral, when used in relation to a Grantor, shall refer to such Grantor's
Collateral or any relevant part thereof.
(f) Any reference in this Agreement to a Loan Document shall
include all appendices, exhibits and schedules thereto, and, unless specifically
stated otherwise all amendments, restatements, supplements or other
modifications thereto, and as the same may be in effect at any time such
reference becomes operative.
(g) The term "including" means "including without limitation"
except when used in the computation of time periods.
(h) The terms "Lender," "L/C Issuer," "Agents,"
"Administrative Agent" and "Secured Party" include their respective successors.
(i) References in this Agreement to any statute shall be to
such statute as amended or modified and in effect from time to time.
ARTICLE II GRANT OF SECURITY INTEREST
SECTION 2.1 COLLATERAL
For the purposes of this Agreement, all of the following
property now owned or at any time hereafter acquired by a Grantor or in which a
Grantor now has or at any time in the future may acquire any right, title or
interests is collectively referred to as the "Collateral":
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(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Inventory;
(i) all Investment Property;
(j) all Letter-of-Credit Rights;
(k) all Vehicles;
(l) the Commercial Tort Claims described on Schedule 7
(Commercial Tort Claims) and on any supplement thereto received by the
Administrative Agent pursuant to Section 4.9 (Notice of Commercial Tort Claims);
(m) all books and records pertaining to the other property
described in this Section 2.1;
(n) all property of any Grantor held by the Administrative
Agent or any other Secured Party, including all property of every description,
in the possession or custody of or in transit to the Administrative Agent or
such Secured Party for any purpose, including safekeeping, collection or pledge,
for the account of such Grantor or as to which such Grantor may have any right
or power;
(o) all other Goods and personal property of such Grantor,
whether tangible or intangible and wherever located; and
(p) to the extent not otherwise included, all Proceeds;
provided, however, that "Collateral" shall not include any Excluded Property;
and provided, further, however, that if and when any property shall cease to be
Excluded Property, such property shall be deemed at all times from and after the
date hereof to constitute Collateral (unless and until such property
subsequently becomes Excluded Property again, in which case it would cease to be
Collateral unless and until it again ceases to be Excluded Property).
SECTION 2.2 GRANT OF SECURITY INTEREST IN COLLATERAL
Each Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the
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Secured Obligations of such Grantor, hereby mortgages, pledges and hypothecates
to the Administrative Agent for the benefit of the Secured Parties, and grants
to the Administrative Agent for the benefit of the Secured Parties a Lien on and
security interest in, all of its right, title and interest in, to and under the
Collateral of such Grantor; provided, however, that any Lien granted in any
Gaming Authorizations is subject to the Gaming Laws applicable to such Gaming
Authorizations; provided, further, however, that, if and when any property that
at any time constituted Excluded Property becomes Collateral, the Administrative
Agent shall have, and at all times from and after the date hereof be deemed to
have had, a security interest in such property (unless and until such property
subsequently becomes Excluded Property again, in which case the Administrative
Agent shall cease to have a security interest in such property unless and until
such property again ceases to be Excluded Property).
SECTION 2.3 CASH COLLATERAL ACCOUNTS
The Administrative Agent has established a Deposit Account at
CIBC, designated as "Canadian Imperial Bank of Commerce - Jarden Corporation
Concentration Account". Such Deposit Account shall be a Cash Collateral Account.
ARTICLE III REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the L/C Issuers and the Agents to enter
into the Credit Agreement, each Grantor hereby represents and warrants each of
the following to the Agents, the Lenders, the L/C Issuers and the other Secured
Parties:
SECTION 3.1 TITLE; NO OTHER LIENS
Except for the Lien granted to the Administrative Agent, for
the benefit of the Secured Parties, pursuant to this Agreement and the other
Permitted Liens, such Grantor (a) is the record and beneficial owner of the
Pledged Collateral pledged by it hereunder constituting Instruments or
Certificated Securities, (b) is the Entitlement Holder of all such Pledged
Collateral constituting Investment Property held in a Securities Account and (c)
has rights in or the power to transfer each other item of Collateral (other than
Collateral located at Non-Material Locations) in which a Lien is granted by it
hereunder, free and clear of any other Lien.
SECTION 3.2 PERFECTION AND PRIORITY
The security interest granted pursuant to this Agreement shall
constitute a valid and continuing perfected security interest in favor of the
Administrative Agent in the Collateral for which perfection is governed by the
UCC or filing with the United States Copyright Office upon (i) in the case of
all Collateral in which a security interest may be perfected by filing a
financing statement under the UCC, the completion of the filings and other
actions specified on Schedule 3 (Filings) (which, in the case of all filings and
other documents referred to on such schedule, have been delivered to the
Administrative Agent in completed and duly executed or authenticated form), (ii)
the delivery to the Administrative Agent of all Collateral consisting of
Instruments and Certificated Securities required to be pledged pursuant to the
terms of this Agreement, in each case properly endorsed for transfer to the
Administrative Agent or in blank, (iii) the execution of Securities Account
Control Agreements with respect to Investment Property not in certificated form
(other than such Investment Property that is maintained in Non-Material
Accounts, with respect to each of which Securities Account Control Agreements
are not required by the Loan Documents), (iv) the execution of Deposit Account
Control Agreements with respect
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to all Deposit Accounts of a Grantor (other than Non-Material Accounts and the
Specified Accounts, with respect to each of which Deposit Account Control
Agreements are not required by the Loan Documents) of a Grantor and (v) all
appropriate filings having been made with the United States Copyright Office
with respect to all registered Copyrights with a value in excess of $100,000.
Such security interest shall be prior to all other Liens on the Collateral
except for Permitted Liens having priority over the Administrative Agent's Lien
by operation of Law or otherwise as permitted under the Credit Agreement.
SECTION 3.3 JURISDICTION OF ORGANIZATION; CHIEF EXECUTIVE
OFFICE
Such Grantor's jurisdiction of organization, legal name,
organizational identification number, if any, and the location of such Grantor's
chief executive office or sole place of business, in each case as of the date
hereof, is specified on Schedule 1 (Jurisdiction of Organization; Principal
Executive Office).
SECTION 3.4 INVENTORY AND EQUIPMENT
On the date hereof, such Grantor's Inventory and Equipment
(other than (i) mobile goods and Inventory or Equipment in transit and (ii)
Inventory and Equipment that are kept at Non-Material Locations) are kept at the
locations listed on Schedule 4 (Location of Inventory and Equipment).
SECTION 3.5 PLEDGED COLLATERAL
(a) The Pledged Stock pledged hereunder by such Grantor is
listed on Schedule 2 (Pledged Collateral) and constitutes that percentage of the
issued and outstanding equity of all classes of each issuer thereof as set forth
on Schedule 2 (Pledged Collateral).
(b) All of the Pledged Stock (other than Pledged Stock in LLCs
and Partnerships) issued by a Grantor or a Subsidiary of a Grantor has been duly
authorized, validly issued and is fully paid and nonassessable.
(c) All of the Pledged Stock issued by a Grantor or a
Subsidiary of a Grantor constitutes the legal, valid and binding obligation of
the obligor with respect thereto, enforceable in accordance with its terms,
subject to the effects of applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, and general equitable principles (whether
considered in a proceeding in equity or at law).
(d) All Pledged Collateral and, if applicable, any Additional
Pledged Collateral, consisting of Certificated Securities or Instruments has
been delivered to the Administrative Agent in accordance with Section 4.4(a)
(Pledged Collateral) and Section 6.14 (New Subsidiaries and Pledgors) of the
Credit Agreement.
(e) All Pledged Collateral held by a Securities Intermediary
in a Securities Account is in a Control Account in accordance with Section 6.18
(Control Accounts; Approved Deposit Accounts) of the Credit Agreement.
(f) Other than Pledged Stock constituting General Intangibles
and Pledged Collateral that is not required to be delivered to the
Administrative Agent pursuant to the terms of
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this Agreement, there is no Pledged Collateral other than that represented by
Certificated Securities or Instruments in the possession of the Administrative
Agent or that consist of Financial Assets held in a Control Account.
SECTION 3.6 ACCOUNTS
No amount payable to such Grantor under or in connection with
any Account (other than Excluded Accounts) is evidenced by any Instrument or
Chattel Paper that has not been delivered to the Administrative Agent, properly
endorsed for transfer, to the extent delivery is required by Section 4.6
(Delivery of Instruments and Chattel Paper).
SECTION 3.7 INTELLECTUAL PROPERTY
(a) Schedule 5 (Intellectual Property) lists all Material
Intellectual Property of such Grantor on the date hereof that has been
registered with the United States Patent and Trademark Office, the United States
Copyright Office, any comparable foreign agency, or for which an application for
registration is pending at such agencies separately identifying that owned by
such Grantor and that licensed to such Grantor. The Material Intellectual
Property set forth on Schedule 5 (Intellectual Property) for such Grantor
constitutes all of the registered intellectual property rights necessary to
conduct its business.
(b) All Material Intellectual Property owned by such Grantor
is valid, subsisting, unexpired and enforceable, has not been adjudged invalid
and has not been abandoned and, other than as set forth on Schedule 5
(Intellectual Property), the use thereof in the business of such Grantor does
not, to the knowledge of a Responsible Officer of such Grantor, infringe,
misappropriate, dilute or violate the intellectual property rights of any other
Person where such infringement, misappropriation, dilution or violation (i) has
resulted in an action, investigation, suit, proceeding, claim or dispute being
filed with a Governmental Authority or (ii) could reasonably be expected to
result in a Material Adverse Effect.
(c) On the date hereof, to such Grantor's knowledge, no
holding, decision or judgment has been rendered by any Governmental Authority
that would limit, cancel or question the validity of, or such Grantor's rights
in, any Material Intellectual Property.
(d) On the date hereof, other than as set forth on Schedule 5
(Intellectual Property), no action or proceeding seeking to limit, cancel or
question the validity of any Material Intellectual Property owned by such
Grantor or such Grantor's ownership interest therein is pending or, to the
knowledge of such Grantor, threatened. On the date hereof, there are no claims,
judgments or settlements in excess of the Threshold Amount to be paid by such
Grantor relating to the Material Intellectual Property.
SECTION 3.8 DEPOSIT ACCOUNTS; SECURITIES ACCOUNTS
The only Deposit Accounts or Securities Accounts maintained by
any Grantor on the date hereof are those listed on Schedule 6 (Bank Accounts;
Control Accounts), which sets forth such information separately for each
Grantor.
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SECTION 3.9 COMMERCIAL TORT CLAIMS
The only Commercial Tort Claims of any Grantor existing on the
date hereof (regardless of whether the amount, defendant or other material facts
can be determined and regardless of whether such Commercial Tort Claim has been
asserted, threatened or has otherwise been made known to the obligee thereof or
whether litigation has been commenced for such claims) as to which Grantor
believes in good faith there exists the likely probability of recovery
(including by way of settlement) of monetary relief in excess of $1,000,000, are
those listed on Schedule 7 (Commercial Tort Claims), which sets forth such
information separately for each Grantor.
ARTICLE IV COVENANTS
Each Grantor agrees with the Administrative Agent to the
following, as long as any Obligation or Commitment remains outstanding and, in
each case, unless the Required Lenders otherwise consent in writing:
SECTION 4.1 GENERALLY
Such Grantor shall (a) except for the security interest
created by this Agreement, not create or suffer to exist any Lien upon or with
respect to any Collateral, except Permitted Liens, (b) not use or permit any
Collateral to be used in violation of any provision of this Agreement, any other
Loan Document, any Law or any policy of insurance covering the Collateral and
(c) not enter into any agreement or undertaking restricting the right or ability
of such Grantor or the Administrative Agent to sell, assign or transfer any
Collateral if such restriction would have a Material Adverse Effect.
SECTION 4.2 MAINTENANCE OF PERFECTED SECURITY INTEREST;
FURTHER DOCUMENTATION
(a) Such Grantor shall maintain the security interest created
by this Agreement as a perfected security interest having at least the priority
described in Section 3.2 (Perfection and Priority) and Section 2.2 (Grant of
Security Interest in Collateral), and shall use commercially reasonable efforts
to defend such security interest and such priority against the claims and
demands of all Persons.
(b) Such Grantor shall furnish to the Administrative Agent
from time to time statements, schedules or other reports further identifying and
describing the Collateral as the Administrative Agent may reasonably request,
all in reasonable detail and in form and substance reasonably satisfactory to
the Administrative Agent; provided, that the Administrative Agent shall not
request such information more than once during any fiscal year of the Borrower
unless an Event of Default shall have occurred and be continuing.
(c) Subject to the terms of the Credit Agreement (including
Sections 6.14 (New Subsidiaries and Pledgors), 6.15 (Collateral Access
Agreements and Bailee's Letters) and 6.18 (Control Accounts; Approved Deposit
Accounts)) from time to time, upon the written request of either Agent, and at
the sole expense of such Grantor, such Grantor shall promptly and duly execute
and deliver, and have recorded, such further instruments and documents and take
such further action as the Administrative Agent may reasonably request for the
purpose of obtaining or preserving the full benefits of this Agreement and of
the rights and powers herein granted,
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including the filing of any financing or continuation statement under the UCC
(or other similar laws) in effect in any jurisdiction with respect to the
security interest created hereby and, to the extent required by this Agreement
or the other Loan Documents, the execution and delivery of Deposit Account
Control Agreements, Securities Account Control Agreements and Intellectual
Property Security Agreements.
SECTION 4.3 CHANGES IN LOCATIONS, NAME, ETC.
Such Grantor shall not do any of the following:
(i) permit any Inventory to be kept at a location other than
Non-Material Locations or those locations listed on Schedule 4
(Location of Inventory and Equipment), except for Inventory in
transit;
(ii) permit any Equipment to be kept at a location other
than Non-Material Locations or those locations listed on Schedule
4 (Location of Inventory and Equipment), except for Equipment in
transit;
(iii) change its jurisdiction of organization or its
location, in each case from that referred to in Section 3.3
(Jurisdiction of Organization; Chief Executive Office); or
(iv) change its legal name or any material trade name used
to identify it in the conduct of its business or ownership of its
properties or organizational identification number, if any, or
corporation, limited liability company or other organizational
structure to such an extent that any financing statement filed in
connection with this Agreement would become misleading;
unless (x) such Grantor provides written notice of such action or event not
later than 30 days after the date of the occurrence thereof to the
Administrative Agent and (y) not later than 40 days after the date of the
occurrence of such action or event, such Grantor delivers to the Administrative
Agent (i) all additional financing statements and other documents reasonably
requested by the Administrative Agent to maintain the validity, perfection and
priority of the security interests provided for herein and (ii) if applicable, a
written supplement to Schedule 4 (Location of Inventory and Equipment) showing
(A) any additional locations (other than Non-Material Locations) at which
Inventory or Equipment shall be kept or (B) any changes in any location (other
than Non-Material Locations) where Inventory or Equipment shall be kept, in
either case, that would require the Administrative Agent to take any action to
maintain a perfected security interest in such Collateral.
SECTION 4.4 PLEDGED COLLATERAL
(a) Such Grantor shall (i) deliver to the Administrative
Agent, all certificates and Instruments representing or evidencing any Pledged
Collateral (including Additional Pledged Collateral) whether now existing or
hereafter acquired, in suitable form for transfer by delivery or, as applicable,
accompanied by such Grantor's endorsement, where necessary, or duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Administrative Agent, together, in respect of any Additional
Pledged Collateral, with a Pledge Amendment, duly executed by the Grantor, in
substantially the form of Annex 3 (Form of Pledge Amendment), an acknowledgment
and agreement to a Joinder Agreement duly executed by the Grantor, in
substantially the form in the form of Annex 4 (Form of Joinder Agreement), or
such
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other documentation acceptable to the Administrative Agent and (ii) maintain all
other Pledged Collateral constituting Investment Property in a Control Account
in accordance with Section 6.18 (Control Accounts; Approved Deposit Accounts) of
the Credit Agreement. Such Grantor authorizes the Administrative Agent to attach
each Pledge Amendment to this Agreement. Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent shall have the
right, at any time in its discretion and without notice to the Grantor, to
transfer to or to register in its name or in the name of its nominees any
Pledged Collateral. Upon the occurrence and during the continuance of an Event
of Default, the Administrative Agent shall have the right at any time to
exchange any certificate or instrument representing or evidencing any Pledged
Collateral for certificates or instruments of smaller or larger denominations.
(b) Except as provided in Article V (Remedial Provisions),
such Grantor shall be entitled to receive all cash dividends paid in respect of
the Pledged Collateral (other than liquidating or distributing dividends) with
respect to the Pledged Collateral. Any sums paid upon or in respect of any
Pledged Collateral upon the liquidation or dissolution of any issuer of any
Pledged Collateral, any distribution of capital made on or in respect of any
Pledged Collateral or any property distributed upon or with respect to any
Pledged Collateral pursuant to the recapitalization or reclassification of the
capital of any issuer of Pledged Collateral or pursuant to the reorganization
thereof shall, unless otherwise subject to a perfected security interest in
favor of the Administrative Agent, be delivered to the Administrative Agent to
be held by it hereunder as additional collateral security for the Secured
Obligations. If any sum of money or property so paid or distributed in respect
of any Pledged Collateral shall be received by such Grantor, such Grantor shall,
to the extent the Borrower is required to make a prepayment under the Credit
Agreement, hold such money or property in trust for the Administrative Agent,
segregated from other funds of such Grantor, as additional security for the
Secured Obligations, until such money or property is paid or delivered to the
Administrative Agent in accordance with the Credit Agreement.
(c) Except as provided in Article V (Remedial Provisions),
such Grantor shall be entitled to exercise all voting, consent and corporate,
partnership, limited liability company and similar rights with respect to the
Pledged Collateral; provided, however, that no vote shall be cast, consent given
or right exercised or other action taken by such Grantor that would impair the
Collateral in any material respect, be inconsistent with or result in any
violation of any provision of the Credit Agreement, this Agreement or any other
Loan Document or, without prior notice to the Administrative Agent, enable or
permit any issuer of Pledged Collateral to issue any Stock or other equity
Securities of any nature or to issue any other securities convertible into or
granting the right to purchase or exchange for any Stock or other equity
Securities of any nature of any issuer of Pledged Collateral.
(d) Such Grantor shall not grant "control" (within the meaning
of such term under Article 9-106 of the UCC) over any Investment Property to any
Person other than the Administrative Agent, other than to a Securities
Intermediary pursuant to Article 8-106(e) of the UCC with respect to any
Investment Property held in a Non-Material Account.
(e) In the case of each Grantor that is an issuer of Pledged
Collateral, such Grantor agrees to be bound by the terms of this Agreement
relating to the Pledged Collateral issued by it and shall comply with such terms
insofar as such terms are applicable to it. In the case of any Grantor that is a
holder of any Stock or Stock Equivalent in any Person that is an issuer of
Pledged Collateral, such Grantor consents to (i) the exercise of the rights
granted to the Administrative Agent hereunder (including those described in
Section 5.3 (Pledged Collateral)),
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and (ii) the pledge by each other Grantor, pursuant to the terms hereof, of the
Pledged Stock in such Person and to the transfer of such Pledged Stock to the
Administrative Agent or its nominee and, upon the occurrence and during the
continuance of an Event of Default, to the substitution of the Administrative
Agent or its nominee as a holder of such Pledged Stock with all the rights,
powers and duties of other holders of Pledged Stock of the same class and, if
the Grantor having pledged such Pledged Stock hereunder had any right, power or
duty at the time of such pledge or at the time of such substitution beyond that
of such other holders, with all such additional rights, powers and duties. Such
Grantor agrees to execute and deliver to the Administrative Agent such
certificates, agreements and other documents as may be necessary to evidence,
formalize or otherwise give effect to the consents given in this clause (e).
(f) Such Grantor shall not, without the consent of the
Administrative Agent, agree to any amendment of any Constituent Document that in
any way adversely affects the perfection of the security interest of the
Administrative Agent in the Pledged Collateral pledged by such Grantor
hereunder, including any amendment electing to treat any membership interest or
partnership interest that is part of the Pledged Collateral as a "security"
under Section 8-103 of the UCC, or any election to turn any Stock or Stock
Equivalent that is Pledged Uncertificated Stock into Stock or a Stock Equivalent
that is Pledged Certificated Stock.
(g) Any loan or advance made by any Grantor to any Foreign
Subsidiary of the Borrower having a value in excess of $5,000,000 shall be
evidenced by an Intercompany Note or other Instrument reasonably acceptable to
the Administrative Agent.
SECTION 4.5 ACCOUNTS
During the continuance of an Event of Default, the
Administrative Agent shall have the right to make test verifications of the
Accounts in any manner and through any medium that it reasonably considers
advisable, and such Grantor shall furnish all such assistance and information as
the Administrative Agent may reasonably require in connection therewith. From
time to time at reasonable intervals designated by the Administrative Agent,
each Grantor shall provide the Administrative Agent with a schedule of Accounts
in form and substance acceptable to the Administrative Agent describing all
Accounts created or acquired by such Grantor; provided, however, that such
Grantor's failure to execute and deliver any such schedule shall not affect or
limit the Administrative Agent's Lien on or other rights in and to any Accounts
for the benefit of the Secured Parties.
SECTION 4.6 DELIVERY OF INSTRUMENTS AND CHATTEL PAPER
If any amount in excess of $1,000,000 in the aggregate payable
under or in connection with any Collateral owned by such Grantor shall be or
become evidenced by an Instrument or Chattel Paper, upon the request of the
Administrative Agent, such Grantor shall promptly deliver such Instrument or
Chattel Paper to the Administrative Agent, duly indorsed in a manner
satisfactory to the Administrative Agent, or, if consented to by the
Administrative Agent, shall ▇▇▇▇ all such Instruments and Chattel Paper with the
following legend: "This writing and the obligations evidenced or secured hereby
are subject to the security interest of Canadian Imperial Bank of Commerce, as
Administrative Agent".
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SECTION 4.7 INTELLECTUAL PROPERTY
(a) Such Grantor (either itself or through licensees) shall,
with respect to each Trademark that is Material Intellectual Property, (i)
continue to use such Trademark in order to maintain such Trademark in full force
and effect with respect to each class of goods for which such Trademark is
currently used, free from any claim of abandonment for non-use unless an
affirmative decision is made by such Grantor in its exercise of good faith
business judgment to discontinue such use, (ii) maintain as in the past the
quality of products and services offered under such Trademark, (iii) use such
Trademark with the appropriate notice of registration and all other notices and
legends required by applicable Law, (iv) not adopt or use any ▇▇▇▇ that is
confusingly similar or a colorable imitation of such Trademark unless the
Administrative Agent shall obtain a perfected security interest in such ▇▇▇▇
pursuant to this Agreement and (v) not (and not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act whereby such
Trademark (or any goodwill associated therewith) may become destroyed,
invalidated, impaired or harmed in any way except where such destruction,
invalidation, impairment or harm (A) would not reasonably be expected to have a
Material Adverse Effect and (B) is in the ordinary course of such Grantor's
business.
(b) Such Grantor (either itself or through licensees) shall
not do any act, or omit to do any act, whereby any Patent that is Material
Intellectual Property may become forfeited, abandoned or dedicated to the
public, except where such forfeiture, abandonment or dedication (i) would not
reasonably be expected to have a Material Adverse Effect and (ii) is in the
ordinary course of such Grantor's business.
(c) Such Grantor (either itself or through licensees) (i)
shall not (and shall not permit any licensee or sublicensee thereof to) do any
act or omit to do any act whereby any portion of the Copyrights that is Material
Intellectual Property may become invalidated or otherwise impaired except where
such invalidation or impairment (A) would not reasonably be expected to have a
Material Adverse Effect and (B) is in the ordinary course of such Grantor's
business and (ii) shall not (either itself or through licensees) do any act
whereby any portion of the Copyrights that is Material Intellectual Property may
fall into the public domain.
(d) Such Grantor (either itself or through licensees) shall
not do any act, or omit to do any act, whereby any trade secret that is Material
Intellectual Property may become publicly available or otherwise unprotectable.
(e) Such Grantor (either itself or through licensees) shall
not do any act that, to the knowledge of a Responsible Officer of such Grantor,
uses any Material Intellectual Property to infringe, misappropriate, or violate
the intellectual property rights of any other Person.
(f) Such Grantor shall notify the Administrative Agent
immediately if it knows, or has reason to know, that any application or
registration relating to any Material Intellectual Property is likely to become
forfeited, abandoned or dedicated to the public, or of any adverse determination
or development (including the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office,
the United States Copyright Office or any court or tribunal in any country)
regarding such Grantor's ownership of, right to use, interest in, or the
validity of, any Material Intellectual Property or such Grantor's right to
register the same or to own and maintain the same.
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(g) Whenever such Grantor, either by itself or through any
agent, licensee or designee, shall file an application for the registration of
any Material Intellectual Property with the United States Patent and Trademark
Office, the United States Copyright Office or any similar office or agency
within or outside the United States or register any Internet domain name, such
Grantor shall report such filing to the Administrative Agent within five
Business Days after the last day of the fiscal quarter in which such filing
occurs. Upon the reasonable request of the Administrative Agent, such Grantor
shall execute and deliver, and have recorded, all agreements, instruments,
documents and papers as the Administrative Agent may request to evidence the
Administrative Agent's security interest in any Material Intellectual Property
(including any Copyright, Patent, Trademark or Internet domain name that
constitutes Material Intellectual Property) and the goodwill and general
intangibles of such Grantor relating thereto or represented thereby.
(h) Such Grantor shall take all reasonable actions necessary
or requested by the Administrative Agent, including in any proceeding before the
United States Patent and Trademark Office, the United States Copyright Office or
any similar office or agency and any Internet domain name registrar, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of any Copyright, Trademark, Patent or Internet
domain name that is Material Intellectual Property, including filing of
applications for renewal, affidavits of use, affidavits of incontestability and
opposition and interference and cancellation proceedings.
(i) In the event that, to the knowledge of a Responsible
Officer of such Grantor, any Material Intellectual Property is or has been
infringed upon or misappropriated or diluted by a third party, and such
infringement, misappropriation or dilution (x) has resulted in such Grantor
bringing any actions, investigations, suits, proceedings, claims or disputes
before a Governmental Authority or (y) could reasonably be expected to have a
Material Adverse Effect, in each case, Grantor shall notify the Administrative
Agent promptly after such Grantor learns thereof. Such Grantor shall take
commercially reasonable action in response to such infringement,
misappropriation of dilution, including, if appropriate, promptly bringing suit
for infringement, misappropriation or dilution and to recover all damages for
such infringement, misappropriation of dilution, and shall take such other
actions as may be appropriate in its commercially reasonable judgment under the
circumstances to protect such Material Intellectual Property.
(j) Unless otherwise agreed to by the Administrative Agent,
such Grantor shall execute and deliver to the Administrative Agent for filing in
(i) the United States Copyright Office a short-form copyright security agreement
in the form attached hereto as Annex 5 (Form of Short Form Intellectual Property
Security Agreement), (ii) in the United States Patent and Trademark Office and
with the Secretary of State of all appropriate States of the United States a
short-form patent security agreement in the form attached hereto as Annex 5
(Form of Short Form Intellectual Property Security Agreement), (iii) the United
States Patent and Trademark Office a short-form trademark security agreement in
form attached hereto as Annex 5 (Form of Short Form Intellectual Property
Security Agreement) and (iv) the office of the appropriate Internet domain name
registrar, a duly executed form of assignment of such Internet domain name
(other than Non-Material Domain Names) to the Administrative Agent (together
with appropriate supporting documentation as may be requested by the
Administrative Agent) in form and substance reasonably acceptable to the
Administrative Agent. In the case of clause (iv) above, such Grantor hereby
authorizes the Administrative Agent to file such assignment in such Grantor's
name and to
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otherwise perform in the name of such Grantor all other reasonably necessary
actions to complete such assignment, and each Grantor agrees to perform all
appropriate actions reasonably deemed necessary by the Administrative Agent for
the Administrative Agent to ensure such Internet domain name is registered in
the name of the Administrative Agent.
SECTION 4.8 PAYMENT OF OBLIGATIONS
Such Grantor shall pay and discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all
taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of income or profits therefrom, as well as all claims
of any kind (including claims for labor, materials and supplies) against or with
respect to the Collateral, except that no such charge need be paid if the amount
or validity thereof is currently being contested in good faith by appropriate
proceedings, reserves in conformity with GAAP with respect thereto have been
provided on the books of such Grantor and such proceedings could not reasonably
be expected to result in the sale, forfeiture or loss of any material portion of
the Collateral or any interest therein.
SECTION 4.9 NOTICE OF COMMERCIAL TORT CLAIMS
Such Grantor agrees that, if it shall acquire any interest in
any Commercial Tort Claim (whether from another Person or because such
Commercial Tort Claim shall have come into existence) as to which Grantor
believes in good faith there exists the likely probability of recovery
(including by way of settlement) of monetary relief in excess of $1,000,000, (i)
such Grantor shall, subject to Section 6.14 (New Subsidiaries and Pledges) and
in any event not later than 5 Business Days after the end of each fiscal quarter
of the Borrower, deliver to the Administrative Agent, in each case in form and
substance satisfactory to the Administrative Agent, a notice of the existence
and nature of such Commercial Tort Claim and deliver a supplement to Schedule 7
(Commercial Tort Claims) containing a specific description of such Commercial
Tort Claim, (ii) the provisions of Section 2.1 (Collateral) shall apply to such
Commercial Tort Claim and (iii) such Grantor shall execute and deliver to the
Administrative Agent, in each case in form and substance satisfactory to the
Administrative Agent, any certificate, agreement and other document, and take
all other action, deemed by the Administrative Agent to be reasonably necessary
or appropriate for the Administrative Agent to obtain, for the benefit of the
Secured Parties, a first-priority, perfected security interest in all such
Commercial Tort Claims. Any supplement to Schedule 7 (Commercial Tort Claims)
delivered pursuant to this Section 4.9 (Notice of Commercial Tort Claims) shall,
after the receipt thereof by the Administrative Agent, become part of Schedule 7
(Commercial Tort Claims) for all purposes hereunder other than in respect of
representations and warranties made prior to the date of such receipt.
ARTICLE V REMEDIAL PROVISIONS
SECTION 5.1 CODE AND OTHER REMEDIES
During the continuance of an Event of Default, the
Administrative Agent may exercise, in addition to all other rights and remedies
granted to it in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Secured Obligations, all rights and
remedies of a secured party under the UCC or any other applicable Law. Without
limiting the generality of the foregoing, the Administrative Agent, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except
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any notice required by law referred to below) to or upon any Grantor or any
other Person (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances forthwith collect,
receive, appropriate and realize upon any Collateral, and may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver any Collateral (or contract to do any of the foregoing), in one or more
parcels at public or private sale or sales, at any exchange, broker's board or
office of the Administrative Agent or any Lender or elsewhere upon such terms
and conditions as it may deem advisable and at such prices as it may deem best,
for cash or on credit or for future delivery without assumption of any credit
risk. The Administrative Agent shall have the right upon any such public sale or
sales, and, to the extent permitted by the UCC and other applicable Law, upon
any such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption of any Grantor,
which right or equity is hereby waived and released. In connection with any such
public or private sales, each Grantor further agrees, at the Administrative
Agent's request, to assemble the Collateral and make it available to the
Administrative Agent at places that the Administrative Agent shall reasonably
select, whether at such Grantor's premises or elsewhere. The Administrative
Agent shall apply the net proceeds of any action taken by it pursuant to this
Section 5.1, after deducting all reasonable costs and expenses of every kind
incurred in connection therewith or incidental to the care or safekeeping of any
Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent and any other Secured Party hereunder, including reasonable
Attorney Costs, to the payment in whole or in part of the Secured Obligations,
in such order as the Credit Agreement shall prescribe, and only after such
application and after the payment by the Administrative Agent of any other
amount required by any provision of Law, need the Administrative Agent account
for the surplus, if any, to any Grantor. To the extent permitted by applicable
Law, each Grantor waives all claims, damages and demands it may acquire against
the Administrative Agent or any other Secured Party arising out of the exercise
by them of any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by Law, such notice shall be deemed
reasonable and proper if given at least 10 days before such sale or other
disposition.
SECTION 5.2 ACCOUNTS AND PAYMENTS IN RESPECT OF GENERAL
INTANGIBLES
(a) In addition to, and not in substitution for, any similar
requirement in the Credit Agreement, if required by the Administrative Agent at
any time during the continuance of an Event of Default, any payment of Accounts
or payment in respect of General Intangibles, when collected by any Grantor,
shall be forthwith (and, in any event, within two Business Days) deposited by
such Grantor in the exact form received, duly indorsed by such Grantor to the
Administrative Agent, in an Approved Deposit Account or a Cash Collateral
Account, subject to withdrawal by the Administrative Agent as provided in
Section 5.4 (Proceeds to be Turned Over to Administrative Agent). Until so
turned over, such payment shall be held by such Grantor in trust for the
Administrative Agent, segregated from other funds of such Grantor. Each such
deposit of Proceeds of Accounts and payments in respect of General Intangibles
shall be accompanied by a report identifying in reasonable detail the nature and
source of the payments included in the deposit.
(b) At the Administrative Agent's request, during the
continuance of an Event of Default, each Grantor shall deliver to the
Administrative Agent all original and other documents evidencing, and relating
to, the agreements and transactions that gave rise to the Accounts or payments
in respect of General Intangibles, including all original orders, invoices and
shipping receipts.
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(c) The Administrative Agent may, without notice, at any time
during the continuance of an Event of Default, limit or terminate the authority
of a Grantor to collect its Accounts or amounts due under General Intangibles or
any thereof.
(d) The Administrative Agent in its own name or in the name of
others may at any time during the continuance of an Event of Default communicate
with Account Debtors to verify with them to the Administrative Agent's
satisfaction the existence, amount and terms of any Account or amounts due under
any General Intangible.
(e) Upon the request of the Administrative Agent at any time
during the continuance of an Event of Default, each Grantor shall notify Account
Debtors that the Accounts or General Intangibles have been collaterally assigned
to the Administrative Agent and that payments in respect thereof shall be made
directly to the Administrative Agent. In addition, the Administrative Agent may
at any time during the continuance of an Event of Default enforce such Grantor's
rights against such Account Debtors and obligors of General Intangibles.
(f) Anything herein to the contrary notwithstanding, each
Grantor shall remain liable under each of the Accounts and payments in respect
of General Intangibles to observe and perform all the conditions and obligations
to be observed and performed by it thereunder, all in accordance with the terms
of any agreement giving rise thereto. Neither the Administrative Agent nor any
other Secured Party shall have any obligation or liability under any agreement
giving rise to an Account or a payment in respect of a General Intangible by
reason of or arising out of this Agreement or the receipt by the Administrative
Agent nor any other Secured Party of any payment relating thereto, nor shall the
Administrative Agent nor any other Secured Party be obligated in any manner to
perform any obligation of any Grantor under or pursuant to any agreement giving
rise to an Account or a payment in respect of a General Intangible, to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party
thereunder, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts that may have been assigned
to it or to which it may be entitled at any time or times.
SECTION 5.3 PLEDGED COLLATERAL
(a) During the continuance of an Event of Default, upon notice
by the Administrative Agent to the relevant Grantor or Grantors, (i) the
Administrative Agent shall have the right to receive any Proceeds of the Pledged
Collateral and make application thereof to the Obligations in the order set
forth in the Credit Agreement and (ii) the Administrative Agent or its nominee
may exercise (A) any voting, consent, corporate and other right pertaining to
the Pledged Collateral at any meeting of shareholders, partners or members, as
the case may be, of the relevant issuer or issuers of Pledged Collateral or
otherwise and (B) any right of conversion, exchange and subscription and any
other right, privilege or option pertaining to the Pledged Collateral as if it
were the absolute owner thereof (including the right to exchange at its
discretion any of the Pledged Collateral upon the merger, amalgamation,
consolidation, reorganization, recapitalization or other fundamental change in
the corporate or equivalent structure of any issuer of Pledged Stock, the right
to deposit and deliver any Pledged Collateral with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may determine), all without liability
except to account for property actually received by it; provided, however, that
the Administrative Agent shall have no duty to any Grantor to exercise any such
right, privilege or option and shall not be responsible for any failure to do so
or delay in so doing.
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PLEDGE AND SECURITY AGREEMENT
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(b) In order to permit the Administrative Agent to exercise
the voting and other consensual rights that it may be entitled to exercise
pursuant hereto and to receive all dividends and other distributions that it may
be entitled to receive hereunder, (i) each Grantor shall promptly execute and
deliver (or cause to be executed and delivered) to the Administrative Agent all
such proxies, dividend payment orders and other instruments as the
Administrative Agent may from time to time reasonably request after the
occurrence and during the continuance of an Event of Default and (ii) without
limiting the effect of clause (i) above, such Grantor hereby grants to the
Administrative Agent an irrevocable proxy to vote all or any part of the Pledged
Collateral and to exercise all other rights, powers, privileges and remedies to
which a holder of the Pledged Collateral would be entitled (including giving or
withholding written consents of shareholders, partners or members, as the case
may be, calling special meetings of shareholders, partners or members, as the
case may be, and voting at such meetings), which proxy shall be effective,
automatically and without the necessity of any action (including any transfer of
any Pledged Collateral on the record books of the issuer thereof) by any other
Person (including the issuer of such Pledged Collateral or any officer or agent
thereof) during the continuance of an Event of Default and which proxy shall
only terminate upon the payment in full of the Secured Obligations.
(c) Each Grantor hereby expressly authorizes and instructs
each issuer of any Pledged Collateral pledged hereunder by such Grantor to (i)
comply with any instruction received by it from the Administrative Agent in
writing that (A) states that an Event of Default has occurred and is continuing
and (B) is otherwise in accordance with the terms of this Agreement, without any
other or further instructions from such Grantor, and each Grantor agrees that
such issuer shall be fully protected in so complying and (ii) unless otherwise
expressly permitted hereby, pay any dividend or other payment with respect to
the Pledged Collateral directly to the Administrative Agent.
SECTION 5.4 PROCEEDS TO BE TURNED OVER TO ADMINISTRATIVE AGENT
Unless otherwise expressly provided in the Credit Agreement,
all Proceeds received by the Administrative Agent hereunder in cash or Eligible
Securities shall be held by the Administrative Agent in a Cash Collateral
Account. All Proceeds while held by the Administrative Agent in a Cash
Collateral Account (or by such Grantor in trust for the Administrative Agent)
shall continue to be held as collateral security for the Secured Obligations and
shall not constitute payment thereof until applied as provided in the Credit
Agreement.
SECTION 5.5 REGISTRATION RIGHTS
(a) Upon the occurrence and during the continuance of an Event
of Default, if the Administrative Agent shall determine to exercise its right to
sell any of the Pledged Collateral pursuant to Section 5.1 (Code and Other
Remedies), and if in the opinion of the Administrative Agent it is necessary to
have the Pledged Collateral, or any portion thereof to be registered under the
provisions of the Securities Act, the relevant Grantor shall cause the issuer
thereof (to the extent such issuer is a Grantor or a Subsidiary of a Grantor) to
(i) execute and deliver, and cause the directors and officers of such issuer to
execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts as may be, in the opinion of the Administrative Agent,
necessary to register the Pledged Collateral, or that portion thereof to be
sold, under the provisions of the Securities Act, (ii) use its best efforts to
cause the registration statement relating thereto to become effective and to
remain effective for a period of one year from the date of the first public
offering of the Pledged Collateral, or that portion thereof
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PLEDGE AND SECURITY AGREEMENT
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to be sold and (iii) make all amendments thereto or to the related prospectus
that, in the opinion of the Administrative Agent, are necessary, all in
conformity with the requirements of the Securities Act and the rules and
regulations of the Commission applicable thereto. Each Grantor agrees to cause
such issuer to comply with the provisions of the securities or "Blue Sky" laws
of any jurisdiction that the Administrative Agent shall designate and to make
available to its security holders, as soon as practicable, an earnings statement
(which need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may
be unable to effect a public sale of any Pledged Collateral by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise or may determine that a public sale is impracticable or not
commercially reasonable and, accordingly, may resort to one or more private
sales thereof to a restricted group of purchasers that shall be obliged to
agree, among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any Pledged Collateral for
the period of time necessary to permit the issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such issuer would agree to do so.
(c) Each Grantor agrees to use its commercially reasonable
efforts to do or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Pledged Collateral pursuant
to this Section 5.5 valid and binding and in compliance with all other
applicable Laws. Each Grantor further agrees that a breach of any covenant
contained in this Section 5.5 will cause irreparable injury to the
Administrative Agent and the other Secured Parties, that the Administrative
Agent and the other Secured Parties have no adequate remedy at Law in respect of
such breach and, as a consequence, that each and every covenant contained in
this Section 5.5 shall be specifically enforceable against such Grantor, and
such Grantor hereby waives and agrees not to assert any defense against an
action for specific performance of such covenants except for a defense that no
Event of Default has occurred and is continuing under the Credit Agreement.
SECTION 5.6 DEFICIENCY
Each Grantor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of the Collateral are insufficient to
pay the Secured Obligations and the Attorney Costs of any attorney employed by
the Administrative Agent or any other Secured Party to collect such deficiency.
SECTION 5.7 GAMING AUTHORIZATIONS
All rights, remedies and powers granted to the Secured Parties
under this Agreement with respect to any Gaming Authorizations or any Collateral
that is subject to regulation by any Gaming Law may be exercised only to the
extent that the exercise thereof does not violate any applicable Gaming Laws or
the terms of the applicable Gaming Authorizations, and then only to the extent
that the required approvals (including any required prior approvals) are
obtained from the requisite Gaming Authorities and any other requirements of
Gaming Authorities are satisfied.
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PLEDGE AND SECURITY AGREEMENT
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ARTICLE VI THE ADMINISTRATIVE AGENT
SECTION 6.1 ADMINISTRATIVE AGENT'S APPOINTMENT AS
ATTORNEY-IN-FACT
(a) Each Grantor hereby irrevocably constitutes and appoints
the Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any appropriate action and to execute any document or
instrument that may be necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing, each Grantor
hereby gives the Administrative Agent the power and right, on behalf of such
Grantor, without notice to or assent by such Grantor, to do any of the
following:
(i) in the name of such Grantor or its own name, or
otherwise, take possession of and indorse and collect any check,
draft, note, acceptance or other instrument for the payment of
moneys due under any Account or General Intangible or with
respect to any other Collateral and file any claim or take any
other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Administrative Agent for the
purpose of collecting any such moneys due under any Account or
General Intangible or with respect to any other Collateral
whenever payable;
(ii) in the case of any Intellectual Property, execute and
deliver, and have recorded, any agreement, instrument, document
or paper as the Administrative Agent may request to evidence the
Administrative Agent's security interest in such Intellectual
Property and the goodwill and General Intangibles of such Grantor
relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on
or threatened against the Collateral, effect any repair or pay
any insurance called for by the terms of this Agreement
(including all or any part of the premiums therefor and the costs
thereof);
(iv) execute, in connection with any sale provided for in
Section 5.1 (Code and Other Remedies) or 5.5 (Registration
Rights), any endorsement, assignment or other instrument of
conveyance or transfer with respect to the Collateral; or
(v) (A) direct any Person liable for any payment under any
Collateral to make payment of any moneys due or to become due
thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct, (B) ask or demand for,
collect, and receive payment of and receipt for, any moneys,
claims and other amounts due or to become due at any time in
respect of or arising out of any Collateral, (C) sign and indorse
any invoice, freight or express ▇▇▇▇, ▇▇▇▇ of lading, storage or
warehouse receipt, draft against debtors, assignment,
verification, notice and other document in connection with any
Collateral, (D) commence and prosecute any suit, action or
proceeding at law or in equity in any court of competent
jurisdiction to collect any Collateral and to enforce any other
right in respect of any Collateral, (E) defend any suit, action
or proceeding brought against such Grantor with respect to any
Collateral, (F) settle, compromise or adjust any such suit,
action or proceeding and, in connection therewith, give such
discharges or releases as the Administrative Agent may deem
appropriate, (G) assign any Copyright, Patent or Trademark (along
with the goodwill of
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PLEDGE AND SECURITY AGREEMENT
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the business to which any such Trademark pertains) throughout the
world for such term or terms, on such conditions, and in such
manner as the Administrative Agent shall in its reasonable
discretion determine, including the execution and filing of any
document necessary to effectuate or record such assignment and
(H) generally, sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any Collateral as fully and
completely as though the Administrative Agent were the absolute
owner thereof for all purposes, and do, at the Administrative
Agent's option and such Grantor's expense, at any time, or from
time to time, all acts and things that the Administrative Agent
deems necessary to protect, preserve or realize upon the
Collateral and the Administrative Agent's and the other Secured
Parties' security interests therein and to effect the intent of
this Agreement, all as fully and effectively as such Grantor
might do.
Anything in this clause (a) to the contrary notwithstanding, the Administrative
Agent agrees that it shall not, and is not authorized hereunder to, exercise any
right under the power of attorney provided for in this clause (a) unless an
Event of Default shall be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in
connection with actions undertaken as provided in this Section 6.1, together
with interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Revolving Loans that are Base Rate
Loans under the Credit Agreement, from the date of payment by the Administrative
Agent to the date reimbursed by the relevant Grantor, shall be payable by such
Grantor to the Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
SECTION 6.2 DUTY OF ADMINISTRATIVE AGENT
The Administrative Agent's sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its
possession shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any other Secured Party nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to any Collateral. The powers conferred on the
Administrative Agent hereunder are solely to protect the Administrative Agent's
interest in the Collateral and shall not impose any duty upon the Administrative
Agent or any other Secured Party to exercise any such powers. The Administrative
Agent and the other Secured Parties shall be accountable only for amounts that
they actually receive as a result of the exercise of such powers, and neither
they nor any of their respective officers, directors, employees or agents shall
be responsible to any Grantor for any act or failure to act hereunder, except
for their own gross negligence or willful misconduct.
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PLEDGE AND SECURITY AGREEMENT
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SECTION 6.3 AUTHORIZATION OF FINANCING STATEMENTS
Each Grantor authorizes the Administrative Agent and its
Affiliates, counsel and other representatives, at any time and from time to
time, to file or record financing statements, amendments to financing
statements, and other filing or recording documents or instruments with respect
to the Collateral in such form and in such offices as the Administrative Agent
reasonably determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement, and such financing statements and
amendments may describe the Collateral covered thereby as "all assets of the
debtor", "all personal property of the debtor" or words of similar effect. Each
Grantor hereby also authorizes the Administrative Agent and its Affiliates,
counsel and other representatives, at any time and from time to time, to file
continuation statements with respect to previously filed financing statements. A
photographic or other reproduction of this Agreement shall be sufficient as a
financing statement or other filing or recording document or instrument for
filing or recording in any jurisdiction.
SECTION 6.4 AUTHORITY OF ADMINISTRATIVE AGENT
Each Grantor acknowledges that the rights and responsibilities
of the Administrative Agent under this Agreement with respect to any action
taken by the Administrative Agent or the exercise or non-exercise by the
Administrative Agent of any option, voting right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Administrative Agent and the other Secured
Parties, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Grantors, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Administrative Agent and the
other Secured Parties with full and valid authority so to act or refrain from
acting, and no Grantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
ARTICLE VII MISCELLANEOUS
SECTION 7.1 AMENDMENTS IN WRITING
None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except in accordance with
Section 10.01 (Amendments, Etc.) of the Credit Agreement; provided, however,
that annexes to this Agreement may be supplemented (but no existing provisions
may be modified and no Collateral may be released) through Pledge Amendments and
Joinder Agreements, in substantially the form of Annex 3 (Form of Pledge
Amendment) and Annex 4 (Form of Joinder Agreement), respectively, in each case
duly executed by the Administrative Agent and each Grantor directly affected
thereby.
SECTION 7.2 NOTICES
All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 10.02 (Notices, Etc.) of the Credit Agreement; provided,
however, that any such notice, request or demand to or upon any Grantor shall be
addressed to the Borrower's notice address set forth in Section 10.02 (Notices,
Etc.).
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PLEDGE AND SECURITY AGREEMENT
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SECTION 7.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE
REMEDIES
Neither the Administrative Agent nor any other Secured Party
shall by any act (except by a written instrument pursuant to Section 7.1
(Amendments in Writing)), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default
or Event of Default. No failure to exercise, nor any delay in exercising, on the
part of the Administrative Agent or any other Secured Party, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Administrative Agent or any other Secured Party of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy that the Administrative Agent or such other Secured Party would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by Law.
SECTION 7.4 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the successors and
assigns of each Grantor and shall inure to the benefit of the Administrative
Agent and each other Secured Party and their successors and assigns; provided,
however, that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
SECTION 7.5 COUNTERPARTS
This Agreement may be executed by one or more of the parties
to this Agreement on any number of separate counterparts (including by
telecopy), each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
Signature pages may be detached from multiple counterparts and attached to a
single counterpart so that all signature pages are attached to the same
document. Delivery of an executed counterpart by telecopy shall be effective as
delivery of a manually executed counterpart.
SECTION 7.6 SEVERABILITY
Any provision of this Agreement that 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.
SECTION 7.7 SECTION HEADINGS
The Article and Section titles contained in this Agreement
are, and shall be, without substantive meaning or content of any kind whatsoever
and are not part of the agreement of the parties hereto.
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PLEDGE AND SECURITY AGREEMENT
JARDEN CORPORATION
SECTION 7.8 ENTIRE AGREEMENT
This Agreement together with the other Loan Documents
represents the entire agreement of the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof.
SECTION 7.9 GOVERNING LAW
This Agreement and the rights and obligations of the parties
hereto shall be governed by, and construed and interpreted in accordance with,
the law of the State of New York.
SECTION 7.10 ADDITIONAL GRANTORS
If, pursuant to Section 6.14 (New Subsidiaries and Pledgors)
of the Credit Agreement, the Borrower shall be required to cause any Subsidiary
that is not a Grantor to become a Grantor hereunder, such Subsidiary shall
execute and deliver to the Administrative Agent a Joinder Agreement
substantially in the form of Annex 4 (Form of Joinder Agreement) and shall
thereafter for all purposes be a party hereto and have the same rights, benefits
and obligations as a Grantor party hereto on the Closing Date.
SECTION 7.11 APPLICATION OF GAMING REGULATIONS
This Agreement is subject to Gaming Laws applicable to the
Borrower and its Subsidiaries with respect to Gaming Authorizations that the
Borrower and its Subsidiaries are required to hold in connection with their
respective businesses. Without limiting the foregoing, each of the Lenders and
the Secured Parties acknowledges that (i) it is subject to being called forward
by the Gaming Authorities, in their discretion, for licensing or a finding of
suitability or to file or provide other information, and (ii) all rights,
remedies and powers in or under this Agreement may be exercised only to the
extent that the exercise thereof does not violate any provisions of Gaming Laws
applicable to the Borrower and its Subsidiaries with respect to Gaming
Authorizations that the Borrower and its Subsidiaries are required to hold in
connection with their respective businesses, and only to the extent that
required approvals (including any required prior approvals) are obtained from
the requisite Gaming Authorities. Each of the Lenders and the Secured Parties
agrees to cooperate with the Gaming Authorities in connection with the provision
of such documents and other information as may be requested by such Gaming
Authorities relating to the Borrower and its Subsidiaries or to the Loan
Documents. The provisions of this Section 7.11 shall apply mutatis mutandis to
all existing Loan Documents.
SECTION 7.12 RELEASE OF COLLATERAL
(a) At the time provided in Section 9.11(b)(i) (Collateral and
Guaranty Matters) of the Credit Agreement, the Collateral shall be released from
the Lien created hereby and this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Administrative Agent, the
Secured Parties and each Grantor hereunder shall terminate, all without delivery
of any instrument or performance of any act by any party, and all rights to the
Collateral shall revert to the Grantors. At the request and sole expense of any
Grantor following any such termination, the Administrative Agent shall deliver
to such Grantor any Collateral of such Grantor held by the Administrative Agent
hereunder and execute and deliver to such Grantor such documents as such Grantor
shall reasonably request to evidence such termination.
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PLEDGE AND SECURITY AGREEMENT
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(b) If the Administrative Agent shall be directed or permitted
pursuant to Section 9.11(b)(ii) or (iii) (Collateral and Guaranty Matters) of
the Credit Agreement to release any Lien created hereby upon any Collateral
(including any Collateral sold or otherwise Disposed of by any Grantor in a
transaction permitted by the Credit Agreement), such Collateral shall be
released from the Lien created hereby to the extent provided under, and subject
to the terms and conditions set forth in, Section 9.11(b)(ii) or (iii)
(Collateral and Guaranty Matters) of the Credit Agreement. In connection
therewith, the Administrative Agent, at the request and sole expense of the
Borrower, shall execute and deliver to the Borrower all releases or other
documents, including UCC termination statements, reasonably necessary or
desirable for the release of the Lien created hereby on such Collateral. At the
request and sole expense of the Borrower, a Grantor shall be released from its
obligations hereunder in the event that all the capital stock of such Grantor
shall be so sold or otherwise Disposed; provided, however, that the Borrower
shall have delivered to the Administrative Agent, at least five Business Days
prior to the date of the proposed release, a written request for release
identifying the relevant Grantor and the terms of the sale or other disposition
in reasonable detail, including the price thereof and any expenses in connection
therewith, together with a certification by the Borrower in form and substance
satisfactory to the Administrative Agent stating that such transaction is in
compliance with the Credit Agreement and the other Loan Documents.
SECTION 7.13 REINSTATEMENT
Each Grantor agrees that, if any payment made by any Loan
Party or other Person and applied to the Obligations is at any time annulled,
avoided, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be refunded or repaid, or the proceeds of
Collateral are required to be returned by any Secured Party to such Loan Party,
its estate, trustee, receiver or any other party, including any Grantor, under
any bankruptcy law, state or federal law, common law or equitable cause, then,
to the extent of such payment or repayment, any Lien or other Collateral
securing such liability shall be and remain in full force and effect, as fully
as if such payment had never been made or, if prior thereto the Lien granted
hereby or other Collateral securing such liability hereunder shall have been
released or terminated by virtue of such cancellation or surrender), such Lien
or other Collateral shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect any Lien or other Collateral securing the obligations of any
Grantor in respect of the amount of such payment.
[SIGNATURE PAGES FOLLOW]
28
IN WITNESS WHEREOF, each of the undersigned has caused this
Pledge and Security Agreement to be duly executed and delivered as of the date
first above written.
JARDEN CORPORATION, as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
ALLTRISTA NEWCO CORPORATION, as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
ALLTRISTA PLASTICS CORPORATION,
as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BICYCLE HOLDING, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
HEARTHMARK, LLC, as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
JARDEN ACQUISITION I, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
JARDEN ZINC PRODUCTS, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
LEHIGH CONSUMER PRODUCTS CORPORATION,
as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇-▇▇▇▇▇▇▇, Inc., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
QUOIN, LLC, as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
THE UNITED STATES PLAYING CARD COMPANY,
as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
TILIA DIRECT, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
TILIA INTERNATIONAL, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
TILIA, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
USPC HOLDING, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
AMERICAN HOUSEHOLD, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
AUSTRALIAN ▇▇▇▇▇▇▇, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BRK BRANDS, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
CC OUTLET, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ INTERNATIONAL HOLDINGS, LLC,
as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ WORLDWIDE CORPORATION,
as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
FIRST ALERT, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
FIRST ALERT/POWERMATE, INC.,
as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
KANSAS ACQUISITION CORP.,
as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
LASER ACQUISITION CORP.,
as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
NIPPON ▇▇▇▇▇▇▇, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
SI II, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
SUNBEAM AMERICAS HOLDINGS, LIMITED,
as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
SUNBEAM PRODUCTS, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
THE ▇▇▇▇▇▇▇ COMPANY, INC., as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
ACCEPTED AND AGREED as of the date first above written:
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Director
CIBC World Markets Corp.,
As Agent