Exhibit 4.1(q)
SECURITY AGREEMENT
This SECURITY AGREEMENT is dated as of March 11, 2003 between PEI
Holdings, Inc., a Delaware corporation (the "Debtor"), and Bank One, N.A., in
its capacity as Trustee under the Indenture described below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Debtor and the Trustee have entered into an Indenture
of even date herewith (as the same may be amended, modified or supplemented from
time to time, the "Indenture") among the Debtor, the Guarantors party thereto,
and the Trustee, governing the terms of certain Senior Secured Notes ("Notes")
issued by the Debtor; and
WHEREAS, it is required under the Indenture that the Debtor shall
have granted the security interests contemplated by this Agreement in order to
secure the payment and performance of the Debtor's obligations under the Notes
and the Indenture (the "Obligations");
NOW, THEREFORE, in consideration of the foregoing, and in order to
facilitate the issuance of the Notes, the Debtor hereby agrees with the Trustee,
for its benefit and the benefit of the Holders, as follows:
SECTION 1. Definitions.
1.1 The following terms, as used herein, have the meanings set forth
below:
"Administrative Agent" means Bank of America, N.A., as
administrative agent under the Credit Agreement, or a successor agent or
administrative agent.
"Agreement" means this Security Agreement, as the same may be
amended, restated, modified or supplemented and in effect from time to time in
accordance with the terms hereof.
"BA Security Documents" means the Collateral Documents as defined in
the Credit Agreement.
"Collateral" has the meaning assigned to that term in Section 2.
"Copyright Security Agreement" means, if any, each Copyright
Security Agreement executed and delivered by the Debtor to Trustee, as the same
may be amended and in effect from time to time.
"Copyrights" means (a) any copyrights, copyright registrations and
copyright applications, and all renewals and extensions of any of the foregoing,
(b) all income damages and payments now and hereafter due or payable with
respect thereto, including, without limitation, damages and payments for past or
future infringements thereof, (c) licenses of any of the foregoing to or from
third parties and the royalties and other payments, if any,
receivable thereunder, (d) the right to ▇▇▇ for past, present and future
infringements thereof, and (e) all rights corresponding thereto throughout the
world.
"Federal Registration Collateral" means Collateral with respect to
which Liens may be registered, recorded or filed under, or notice thereof given
under, any federal statute or regulation.
"Indenture" has the meaning assigned to that term in the recitals.
"Intellectual Property" means, collectively, all Copyrights,
Patents, Trademarks and Trade Secrets.
"Intercreditor Agreement" means that certain Intercreditor Agreement
among the Debtor, the Trustee and the Administrative Agent.
"License" has the meaning set forth in Section 4.3(g) herein.
"Material Adverse Effect" means (a) a material adverse change in, or
a material adverse effect upon, the operations, business, properties, or
financial condition of Playboy and its Restricted Subsidiaries taken as a whole;
(b) a material impairment of the ability of the Debtor, Playboy, or any
Guarantor or any Person executing a Security Document to perform its obligations
under the Indenture or any Security Document to which it is a party; (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against the Debtor, Playboy, or any Guarantor or any Person
executing a Security Document of the Indenture or any Security Document to which
it is a party; or (d) a material adverse effect on the Collateral or the
validity, perfection, priority or enforceability of the Security Interests.
"Notes" has the meaning assigned to that term in the recitals.
"Obligations" has the meaning assigned to that term in the recitals.
"Patent Security Agreement" means, if any, each Patent Security
Agreement executed and delivered by the Debtor to the Trustee, as the same may
be amended and in effect from time to time.
"Patents" means (a) any patents and patent applications, and all
renewals, extensions and continuations of any of the foregoing, (b) all income
damages and payments now and hereinafter due or payable with respect thereto,
including, without limitation, damages and payments for past or future
infringements thereof, (c) licenses of any of the foregoing to or from third
parties and the royalties and other payments, if any, receivable thereunder, (d)
the right to ▇▇▇ for past, present and future infringements thereof, and (e) all
rights corresponding thereto throughout the world.
"Permitted Liens" means those Liens permitted by Section 4.08 of the
Indenture.
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"Security Interests" means the security interests granted or
provided for pursuant to Section 2 hereof and pursuant to any Copyright Security
Agreements, Patent Security Agreements and Trademark Security Agreements, as
well as all other security interests created, assigned or provided as additional
security for the Obligations pursuant to the provisions of this Agreement or the
Indenture or any of the other Security Documents.
"Trade Secrets" means technology, trade secrets and other
confidential information, know-how, proprietary processes, formulae, algorithms,
models, and methodologies, all renewals and extensions of any of the foregoing
and all goodwill symbolized by any of the foregoing, (b) all income damages and
payments now and hereinafter due or payable with respect thereto, including,
without limitation, damages and payments for past or future infringements
thereof, (c) licenses of any of the foregoing to or from third parties and the
royalties and other payments, if any, receivable thereunder, (d) the right to
▇▇▇ for past, present and future infringements thereof, and (e) all rights
corresponding thereto throughout the world.
"Trademark Security Agreement" means, if any, each Trademark
Security Agreement executed and delivered by the Debtor to the Trustee, as the
same may be amended and in effect from time to time.
"Trademarks" means any (a) trademarks, trademark registrations, and
trademark applications, trade names and trade styles, service marks, service
registrations and service ▇▇▇▇ applications, all renewals and extensions of any
of the foregoing and all goodwill symbolized by any of the foregoing, (b) all
income, damages and payments now and hereinafter due or payable with respect
thereto, including, without limitation, damages and payments for past or future
infringements, unfair competition, dilution, or for injury to the goodwill
associated with any of the foregoing, (c) licenses of any of the foregoing to or
from third parties and the royalties and other payments, if any, receivable
thereunder, (d) the right to ▇▇▇ for past, present and future infringements
thereof, and (e) all rights corresponding thereto throughout the world.
"UCC" means the Uniform Commercial Code of the State of Illinois as
in effect from time to time.
1.2 Other Definition Provisions. References to "Sections" shall be
to Sections of this Agreement unless otherwise specifically provided. For
purposes hereof, "including" is not limiting and "or" is not exclusive. Except
as provided by the immediately following sentence, capitalized terms used herein
and not otherwise defined herein shall have the respective meanings provided for
in the Indenture. All capitalized terms defined in the UCC and not otherwise
defined herein shall have the respective meanings provided for by the UCC. Any
of the terms defined in Section 1.1 may, unless the context otherwise requires,
be used in the singular or the plural depending on the reference. All references
to statutes and related regulations shall include any amendments of same and any
successor statutes and regulations.
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SECTION 2. Grant of Security Interests.
To secure the payment and performance of the Obligations, the Debtor
hereby grants to the Trustee, for its benefit and the benefit of the Holders,
and for the benefit of each Affiliate of Trustee and each Holder, a lien on,
security interest in and right of set-off against any and all right, title and
interest in and to any and all property and interests in property of the Debtor,
whether now owned or existing or hereafter created, acquired or arising,
including all of the following properties and interests in properties, whether
now owned or hereafter created, acquired or arising (all being collectively
referred to herein as the "Collateral"):
(a) Accounts;
(b) Chattel Paper;
(c) Commercial Tort Claims specifically identified on Schedule III
hereto;
(d) Deposit Accounts, all cash, and other property deposited therein
or otherwise credited thereto from time to time and other monies and property in
the possession or under the control of Trustee or any Holder or any affiliate,
representative, agent or correspondent of the Trustee or any Holder;
(e) Documents;
(f) General Intangibles, including without limitation any and all
Intellectual Property;
(g) Goods, including without limitation any and all Inventory, any
and all Equipment and any and all Fixtures;
(h) Instruments;
(i) Investment Property;
(j) Letter-of-Credit Rights;
(k) Supporting Obligations;
(l) Any and all other personal property and interests in property
whether or not subject to the UCC;
(m) Any and all books and records, in whatever form or medium, that
at any time evidence or contain information relating to any of the foregoing
properties or interests in properties or are otherwise necessary in the
collection thereof or realization thereon;
(n) All Accessions and additions to, and substitutions and
replacements of, any and all of the foregoing; and
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(o) All Proceeds and products of the foregoing, including without
limitation all insurance pertaining to the foregoing and proceeds thereof.
Notwithstanding the foregoing, "Collateral" shall not include (i) any stock in a
Controlled Foreign Corporation (within the meaning of Section 957 of the Code)
in excess of 65% of such stock or in excess of 65% of the total combined voting
power of all classes of such entity entitled to vote, (ii) any General
Intangibles or other rights arising under any contracts, instruments, licenses
or other documents to the extent that the grant of a Lien or security interest
therein would (A) result in a breach of the terms of, or constitute a default
under, such contract, instrument, license, agreement or other document (other
than to the extent that any such term would be rendered ineffective pursuant to
Section 9-406, 9-407 or 9-408 of the Uniform Commercial Code or any successor
provision of the Uniform Commercial Code of any relevant jurisdiction or other
applicable law) or (B) give any other party to such contract, instrument,
license or other document the right to terminate its obligations thereunder
pursuant to a valid and enforceable provision (including without limitation in
connection with the operation of Section 9-406, 9-407 or 9-408 of the Uniform
Commercial Code or any other applicable law), (iii) any personal property
(including motor vehicles) in respect of which perfection of a Lien is not
either (A) governed by the Uniform Commercial Code or (B) accomplished by
appropriate evidence of the lien being recorded in the U.S. Copyright Office or
the U.S. Patent and Trademark Office, or (iv) any property subject to any Pledge
Agreement.
SECTION 3. Representations and Warranties.
The Debtor represents and warrants to the Trustee and to each Holder
as follows:
3.1 Binding Obligation; Perfection. This Agreement constitutes a
valid and binding obligation of the Debtor, enforceable against it in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law). Subject to taking the
actions specified in Section 3.5, the Trustee has a valid and perfected first
priority Security Interest in the Collateral consisting of Trademarks and all
proceeds thereof, and a valid and perfected second priority Security Interest in
all other Collateral to the extent that a security interest therein may be
perfected by the filing of a financing statement and the other actions referred
to in Section 3.5, securing the payment of the Obligations, and the Debtor
acknowledges that such Security Interests are entitled to all of the rights,
priorities and benefits afforded by the UCC or other applicable law as enacted
in any relevant jurisdiction within the United States which relates to perfected
security interests subject to Permitted Liens.
3.2 Organizational Information. Schedule I hereto sets forth, as of
the date hereof, (i) the full, correct and current name of the Debtor, as its
appears in the Debtor's organizational documents, (ii) any names of the Debtor
other than the Debtor's current name, as set forth on the Debtor's
organizational documents used during the five (5) year period preceding the date
hereof, (iii) the Debtor's type of organization, (iv) the Debtor's jurisdiction
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of organization and (v) the Debtor's organizational identification number
(except where the Debtor's jurisdiction of organization does not assign
organizational numbers).
3.3 Collateral Locations. Schedule II hereto sets forth all
addresses at which, as of the date hereof, any material portion of the
Collateral consisting of Equipment or Inventory is located, indicating for each
whether such location is owned or leased by the Debtor, or owned or operated by
a third-party such as a warehouseman, consignee or processor. Schedule II
indicates, as of the date hereof, which of the foregoing addresses serves as the
Debtor's chief executive office. Schedule II sets forth, as of the date hereof,
the address of all real properties maintained by the Debtor, leased or owned, on
which any material portion of the Fixtures are located, together with the name
and address of the record owner of each such property.
3.4 Existing Liens. As of the date hereof, the Debtor owns the
Collateral free and clear of Liens, except for Permitted Liens.
3.5 Governmental Authorizations; Consents; Federal Registration
Collateral. Except as set forth in this Section 3.5, no authorization, approval
or other action by, and no notice to or filing with, any domestic or foreign
governmental authority or regulatory body or consent of any other Person is
required for (i) the grant by the Debtor of the Security Interests granted
hereby or for the execution, delivery or performance of this Agreement by the
Debtor; or (ii) the exercise by the Trustee of its rights and remedies hereunder
other than such as has already been obtained or taken or the failure of which to
obtain would not be reasonably likely to have a Material Adverse Effect. Except
as set forth on the schedules to the Copyright Security Agreement and the
Trademark Security Agreement, none of the material Collateral is Federal
Registration Collateral. Except for (a) the filing of UCC financing statements
with the Secretary of State of the Debtor's jurisdiction of organization, (b)
the filing of UCC financing statements in appropriate local jurisdictions with
respect to Fixtures, (c) the filing of any necessary registrations or notices
and the issue of recordations thereof, as applicable, in respect of any and all
Federal Registration Collateral (other than Trademarks) and (d) with respect to
Trademarks, the filing of the Trademark Security Agreement with the U.S. Patent
and Trademark Office, together with an appropriately completed recordation form
and the issuance of recordation thereof, no authorization, approval or other
action by, and no notice to or filing with, any domestic or foreign governmental
authority or regulatory body or consent of any other Person is required for the
perfection of the Security Interests granted hereby and pursuant to any other
Security Documents in the Collateral in which a lien may be perfected under
United States, state or federal law; provided, however, that additional
registrations, notices and issuances of recordation, as applicable, may be
necessary with respect to Federal Registration Collateral acquired by the Debtor
after the date hereof.
3.6 Accounts. To the Debtor's knowledge, each material Account
constitutes the legally valid and binding obligation of the applicable Account
Debtor. No Account Debtor has any defense, set-off, claim or counterclaim
against the Debtor that can be asserted against the Trustee, whether in any
proceeding to enforce the Trustee's rights in the Collateral or otherwise,
except defenses, setoffs, claims or counterclaims that are not, in the
aggregate, material to the value of the Accounts taken as a whole.
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3.7 Inventory. To the Debtor's knowledge, all material Inventory is,
and will be, of good and merchantable quality, free from any material defects.
None of the Debtor's Inventory has been produced in violation of any provision
of the Fair Labor Standards Act of 1938, or in violation of any other law in any
material respect.
3.8 Intellectual Property. The Trademarks listed on the schedule to
the Trademark Security Agreement constitute all the federally registered
Trademarks owned by the Debtor. The Copyrights listed on the schedule to the
Copyright Security Agreement constitute the material federally registered
Copyrights in the original programming of the Debtor and its direct and indirect
subsidiaries. The Debtor currently does not own any Patents. All of the
registrations for such Intellectual Property are subsisting and, to the Debtor's
knowledge, enforceable and all filings necessary to maintain the effectiveness
of such registrations have been made. Except as set forth on Schedule V, the
Debtor has received no written notice of any material suits or actions commenced
or threatened with reference to any Intellectual Property of the Debtor which
are unresolved. The execution, delivery and performance of this Agreement, the
Copyright Security Agreement or the Trademark Security Agreement by the Debtor
will not violate or cause a default under any agreement pertaining to
Intellectual Property to which the Debtor is a party that is included in the
Collateral, other than any such violation or default that would not reasonably
be expected to have a Material Adverse Effect.
3.9 Certain Collateral Disclosures. Except in each case as set forth
on Schedule IV hereto, the Debtor has no ownership interest in any material
Chattel Paper, Letter-of-Credit Rights, Commercial Tort Claims, Documents, or
Equipment covered by any certificate of title.
3.10 Control Arrangements. Except for Control arising by operation
of law in favor of banks and securities intermediaries having custody over
deposit accounts and securities accounts, to the knowledge of the Debtor, no
Person (other than the Administrative Agent) has Control of any deposit
accounts, Electronic Chattel Paper, Investment Property or Letter-of-Credit
Rights in which the Debtor has any interest and which constitutes part of the
Collateral.
3.11 Accurate Information. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of the Debtor
in writing to the Trustee or any Holder (including, without limitation, all
information contained in the Indenture and Security Documents) for purposes of
or in connection with this Agreement or any transaction contemplated herein is,
and all other such factual information (taken as a whole) hereafter furnished by
or on behalf of the Debtor in writing to the Trustee or any Holder for purposes
of or in connection with this Agreement or any transaction contemplated herein,
when taken as a whole, does not contain as of the date furnished any untrue
statement of material fact or omit to state a material fact necessary in order
to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading; provided that to the
extent any such factual information was based upon or constituted a forecast or
projection, the Debtor represents only that it acted in good faith and utilized
reasonable assumptions and due care in the preparation of such factual
information.
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3.12 Survival of Representations and Warranties. All representations
and warranties of the Debtor contained in this Agreement shall survive the
execution and delivery of this Agreement.
SECTION 4. Covenants and Further Assurances.
Until the Obligations are paid in full and the Indenture has
terminated:
4.1 Name or Entity Changes. The Debtor shall not change the Debtor's
name, type of organization or jurisdiction of organization without providing
thirty (30) days' prior written notice to the Trustee. If the Debtor is at any
time assigned a new organizational identification number, it shall promptly
notify the Trustee thereof in writing.
4.2 Accounts. Except as otherwise provided in this Section 4.2, the
Debtor shall continue to collect, at its own expense, all amounts due or to
become due to the Debtor with respect to Accounts and apply such amounts as are
so collected to the outstanding balances thereof. In connection with such
collections, the Debtor may take (and, at the Trustee's direction during the
continuance of any Event of Default, shall take) such action as the Debtor (or,
during the continuance of an Event of Default, the Trustee) may deem necessary
or advisable to enforce collection of the Accounts. The Trustee shall have the
right if an Event of Default has occurred and is continuing to: (i) notify the
Account Debtor under any Accounts (or any other Person obligated thereon) of the
Lien granted upon such Accounts in favor of the Trustee and to direct such
Account Debtors and other Persons to make payment of all amounts due or to
become due or otherwise render performance directly to the Trustee; (ii)
exercise the rights of the Debtor with respect to the obligation of the Account
Debtor to make payment or otherwise render performance to the Debtor and with
respect to any property that secures the obligations of the Account Debtor or
any other Person obligated on the Collateral; and (iii) adjust, settle or
compromise the amount or payment of such Accounts. If an Event of Default has
occurred and is continuing, all amounts and Proceeds received by the Debtor with
respect to the Accounts shall be received in trust for the benefit of the
Trustee (on behalf of itself and the Holders), and, at the Trustee's request,
shall be segregated from other funds of the Debtor and forthwith paid over to
the Trustee in the same form as so received (with any necessary endorsement) to
be applied against the Obligations.
4.3 Intellectual Property.
(a) The Debtor shall concurrently herewith deliver to the Trustee
each Copyright Security Agreement and Trademark Security Agreement and all other
documents, instruments and other items as may be necessary for the Trustee to
file such agreements with the U.S. Copyright Office and the U.S. Patent and
Trademark Office, as applicable, except any recordation cover sheets and the
applicable recording fee pertaining thereto (which shall be payable in
accordance with Section 7 hereof).
(b) In the event the Debtor acquires or becomes the owner of any new
or additional Federal Registration Collateral consisting of Patents, Trademarks,
or material registered Copyrights in original programming of the Debtor and its
direct and indirect
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subsidiaries, the Debtor shall give to the Trustee prompt written notice
thereof, and shall within thirty (30) days of such notice amend (and hereby
authorizes the Trustee to amend) the schedules to the respective security
agreements or enter into new or additional security agreements to include any
such new or additional Federal Registration Collateral thereon and provide all
other documents, instruments and other items as may be necessary for the Trustee
to file such agreements with the U.S. Copyright Office and the U.S. Patent and
Trademark Office, as applicable, except any recordation cover sheets and the
applicable recording fee pertaining thereto (which shall be payable in
accordance with Section 7 hereof).
(c) The Debtor shall: (i) diligently prosecute any application filed
by the Debtor to register material Intellectual Property at any time pending;
(ii) make application for registration or issuance of all newly-acquired
material Intellectual Property owned by the Debtor as reasonably deemed
appropriate by the Debtor; and (iii) preserve and maintain all rights in the
material Intellectual Property owned by the Debtor unless the Debtor has a
purpose in the ordinary course of business to do otherwise and to do otherwise
could not reasonably be expected to have a Material Adverse Effect.
(d) The Debtor shall not abandon any right to file an application to
register material Intellectual Property, nor shall the Debtor abandon any
pending application to register material Intellectual Property or material
registered Intellectual Property unless the Debtor has a purpose in the ordinary
course of business to do otherwise and to do otherwise could not reasonably be
expected to have a Material Adverse Effect. The Debtor will notify the Trustee
promptly if it knows that any application or registration relating to any
Patents, Trademarks, or material registered Copyrights in original programming
of the Debtor and its direct and indirect subsidiaries owned by it may become
abandoned or dedicated to the public, or of any adverse determination or
development (including the institution of, or any adverse determination or
development in, any proceeding in the U.S. Copyright Office, the U.S. Patent and
Trademark Office or any court) regarding the Debtor's ownership of such Federal
Registration Collateral, or its right to maintain, register or patent the same.
If any of the Debtor's rights to any Federal Registration Collateral consisting
of material Intellectual Property are infringed, misappropriated or diluted by a
third party, the Debtor will notify the Trustee within thirty (30) days after it
learns thereof and will, unless the Debtor shall reasonably determine that such
undertaking would not be commercially reasonable, promptly ▇▇▇ for infringement,
misappropriation or dilution and to recover any and all damages for such
infringement, misappropriation or dilution, and/or take such other actions as
the Debtor shall reasonably deem appropriate under the circumstances to protect
such Federal Registration Collateral.
(e) The Debtor shall not sell or assign or otherwise transfer or
dispose of its interest in, or grant any license under, or otherwise encumber
any Intellectual Property or enter into any other agreement with respect to any
material Intellectual Property included in the Collateral, except in the
ordinary course and consistent with past practices and except as permitted
hereunder or under the Indenture. The Debtor further agrees that it shall not
take any action or permit any action to be taken by others subject to its
control, including licensees, or knowingly fail to take any action which could
materially and adversely affect the validity or enforcement of the rights
granted to the Trustee under this Agreement, except as permitted hereunder or
under the Indenture.
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(f) The Debtor agrees to maintain the quality of any and all
products in connection with which the Trademarks are used, unless Debtor has a
purpose in the ordinary course of business to do otherwise and to do otherwise
could not reasonably be expected to have a Material Adverse Effect. During the
continuance of an Event of Default, the Debtor agrees that the Trustee, or a
conservator appointed by the Trustee, shall have the right to establish such
additional product quality controls as the Trustee, or said conservator, in its
reasonable judgment, may deem necessary to assure the maintenance of the quality
of products sold by the Debtor under the Trademarks.
(g) Notwithstanding any Enforcement Action (as defined in the
Intercreditor Agreement) by the Administrative Agent against any Intellectual
Property or the existence of an Enforcement Period (as defined in the
Intercreditor Agreement) with respect thereto, the Debtor hereby grants to the
Trustee effective during the existence of an Event of Default, the following
licenses with respect to the Intellectual Property to the extent it can lawfully
grant such licenses and subject to any third party rights to such Intellectual
Property (each, a "License"): (i) for a period of one (1) year after the Trustee
completes foreclosure in the Trustee's security interest in the Collateral
consisting of Inventory (including work-in-process), a license to use the
Intellectual Property for the purpose of completing the production, printing
and/or manufacture of work-in-process Inventory, provided that such Inventory is
completed in a manner that maintains the level of quality of such Inventory as
comparable to that which prevailed prior to the Events of Default; and (ii) a
license to use the Intellectual Property for the purpose of selling completed
Inventory, including in such License, the right to make public displays or
performances of any Collateral consisting of completed Inventory until such
Inventory is sold off. Each License shall be worldwide, assignable,
non-exclusive, include the right to sublicense and shall be free of obligation
to pay royalties. If a sale, exclusive license or other transfer or conveyance
is made of any Intellectual Property in compliance with the terms of the
Indenture and the Security Documents, the Trustee's Security Interest in the
subject Intellectual Property shall not be released or deemed released until the
transferee or licensee thereof has executed a document in form reasonably
acceptable to the Trustee, confirming and acknowledging the survival of the
Licenses.
(h) If an Event of Default shall have occurred and be continuing,
the Trustee may (without assuming any obligation or liability thereunder), at
any time and from time to time, in its sole and reasonable discretion, enforce
(and shall have the exclusive right to enforce, subject to the rights of the
Administrative Agent under the Intercreditor Agreement) against any licensee or
sublicensee all rights and remedies of the Debtor in, to and under any of its
Intellectual Property and take or refrain from taking any action under any
thereof, and the Debtor releases the Trustee and each other Secured Party from
liability for, and agrees to hold the Trustee and each other Secured Party free
and harmless from and against any claims and expenses arising out of, any lawful
action so taken or omitted to be taken with respect thereto, except for claims
and expenses arising from the Trustee's or such Secured Party's gross negligence
or willful misconduct.
(i) If the Trustee elects to exercise its remedies as set forth in
that certain Deed of Trust With Assignment of Rents Security Agreement and
Fixture Filing of even date herewith by Playboy Enterprises International, Inc.
for the benefit of the Administrative
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Agent, the Debtor acknowledges and agrees that the Administrative Agent and the
Trustee, their assigns and any purchaser of the Playboy Mansion may use the term
"Playboy Mansion" when describing such Playboy Mansion to the extent that such
use constitutes a "fair use" under applicable trademark law.
4.4 Bailees. No material Collateral consisting of Equipment or
Inventory shall at any time be in the possession or control of any warehouse,
consignee, bailee or any of the Debtor's agents or processors without prior
written notice to the Trustee and the receipt by the Trustee, if the Trustee has
so requested, of warehouse receipts or bailee lien waivers (as applicable)
reasonably satisfactory to the Trustee prior to the commencement of such
possession or control. If an Event of Default has occurred and is continuing,
the Debtor shall, upon the request of the Trustee, notify any such warehouse,
consignee, bailee, agent or processor of the Security Interests, shall instruct
such Person to hold all such Collateral for the Trustee's account subject to the
Trustee's instructions and shall obtain an acknowledgement from such Person that
such Person holds the Collateral for the Trustee's benefit.
4.5 Chattel Paper and Instruments. Except to the extent previously
delivered to the Administrative Agent pursuant to the BA Security Documents, the
Debtor shall deliver to the Trustee all Tangible Chattel Paper and all
Instruments (other than Tangible Chattel Paper and Instruments whose value does
not exceed $25,000) duly endorsed and accompanied by duly executed instruments
of transfer or assignment, all in form and substance reasonably satisfactory to
the Trustee. The Debtor shall use commercially reasonable efforts to provide the
Trustee with Control of all Electronic Chattel Paper by having the Trustee
identified as the assignee of the Records pertaining to the single authoritative
copy thereof and otherwise complying with the applicable elements of Control set
forth in the UCC; provided that the Debtor shall not be required to comply with
the requirement of this sentence to the extent that the Administrative Agent has
Control of such Electronic Chattel Paper pursuant to the BA Security Documents.
If an Event of Default has occurred and is continuing, the Debtor also shall
deliver to the Trustee all security agreements securing any Chattel Paper and
securing any Instruments; provided that the Debtor shall not be required to
comply with the requirement of this sentence to the extent that the
Administrative Agent has Control of such Chattel Paper or Instrument pursuant to
the BA Security Documents. If an Event of Default has occurred and is
continuing, the Debtor will ▇▇▇▇ conspicuously all Chattel Paper and all
Instruments with a legend, in form and substance reasonably satisfactory to the
Trustee, indicating that such Chattel Paper and such Instruments are subject to
the Security Interests.
4.6 Letters of Credit. At the Trustee's request, the Debtor shall
use commercially reasonable efforts to deliver to the Trustee all Letters of
Credit with a value in excess of $25,000 which have not been delivered to the
Administrative Agent under the BA Security Documents, duly endorsed and
accompanied by duly executed instruments of transfer or assignment, all in form
and substance reasonably satisfactory to the Trustee. The Debtor shall use
commercially reasonable efforts to take any and all actions as may be necessary
from time to time to cause the Trustee to obtain exclusive Control of any
Letter-of-Credit Rights owned by the Debtor in a manner reasonably acceptable to
the Trustee; provided that the Debtor shall not be required to comply with the
requirement of this
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sentence if the Administrative Agent has Control of such Letter of Credit Rights
pursuant to the BA Security Documents.
4.7 Equipment. The Debtor shall cause all material Equipment and
other material properties to be maintained and preserved in good and working
order, ordinary wear and tear excepted, and promptly make or cause to be made
all necessary repairs, replacements and other improvements in connection
therewith (other than with respect to obsolete Equipment), except where the
failure to do so would not reasonably be expected to have a Material Adverse
Effect. With respect to any item of Equipment that is covered by a certificate
of title under a statute of any jurisdiction under the law of which indication
of a security interest on such certificate is required as a condition of
perfection thereof, upon request of the Trustee, the Debtor shall deliver to the
Trustee any and all certificates of title, applications for title or similar
evidence of ownership of all such Equipment which have not been delivered to the
Administrative Agent under the BA Security Documents, and which has a value in
excess of $10,000, and shall execute and file with the registrar of motor
vehicles or other appropriate authority in such jurisdiction an application or
other document requesting the notation or other indication of the security
interest created hereunder on such certificate of title.
4.8 Investment Property. At the Trustee's request, the Debtor shall
take any and all actions as may be commercially reasonable to (i) cause the
Trustee to obtain exclusive Control of any Investment Property owned by the
Debtor in a manner reasonably acceptable to the Trustee and (ii) request from
any issuers of Investment Property and such other Persons, for the benefit of
the Trustee, written confirmation of the Trustee's Control over such Investment
Property upon terms and conditions reasonably acceptable to the Trustee;
provided that the Debtor shall not be required to comply with the requirement of
this sentence if the Administrative Agent has Control of such Investment
Property pursuant to the BA Security Documents .
4.9 General Intangibles. The Debtor shall use commercially
reasonable efforts to obtain any consents, waivers or agreements necessary to
enable the Trustee to exercise remedies hereunder with respect to any of the
Debtor's rights under any material General Intangibles, including the Debtor's
rights as a licensee of material software and other Intellectual Property.
4.10 Commercial Tort Claims. The Debtor shall advise the Trustee
upon the Debtor becoming aware that it has any interest in a material Commercial
Tort Claim. With respect to any material Commercial Tort Claim in which the
Debtor has any interest, the Debtor shall execute and deliver such documents as
may be necessary to create and perfect the Trustee's security interest in such
Commercial Tort Claim.
4.11 Taxes and Claims. The Debtor shall pay when due all material
property and other taxes, assessments and governmental charges imposed upon, and
all claims against, the Collateral (including claims for labor, materials and
supplies); provided that no such tax, assessment, charge or claim need be paid
to the extent (i) it is not delinquent or thereafter payable without penalty, or
(ii) it is being contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves have been provided in
12
accordance with GAAP or (iii) the failure to pay such would not reasonably be
expected to have a Material Adverse Effect.
4.12 Collateral Generally.
(a) The Debtor hereby authorizes the Trustee to file one or more
financing or continuation statements, and amendments thereto (or similar
documents required by any laws of any applicable jurisdiction), relating to all
or any part of the Collateral without the signature of the Debtor (to the extent
such signature is required under the laws of any applicable jurisdiction), which
financing statements may describe the Collateral as "all assets" or "all
personal property" or words of like import.
(b) The Debtor will furnish to the Trustee, from time to time upon
reasonable request by the Trustee, statements and schedules further identifying,
updating, and describing the Collateral and such other information, reports and
evidence concerning the Collateral as the Trustee may reasonably request, all in
reasonable detail.
(c) The Debtor shall not use or permit any Collateral to be used
unlawfully in any material respect or in violation of any provision of
applicable law, or any policy of insurance covering any of the Collateral, in
each case, in any material respect.
(d) The Debtor shall give the Trustee not less than thirty (30) days
prior written notice of any change in the Debtor's chief executive office and
principal place of business or of any new location of business or any new
location for any of the Collateral that is material to the Debtor and that
consists of Equipment or Inventory. With respect to any such new location, upon
the Trustee's request, the Debtor shall execute and deliver such instruments,
documents and notices and take such actions as may be necessary to create and
perfect the Security Interests under the laws of the United States.
(e) The Debtor shall keep full and accurate books and records
relating to the Collateral and, if an Event of Default has occurred and is
continuing, at the request of the Trustee shall stamp or otherwise ▇▇▇▇ such
books and records in such manner as the Trustee may reasonably request
indicating that the Collateral is subject to the Security Interests.
(f) Except for the safe custody of any Collateral in its possession
and the accounting for monies actually received hereunder, the Debtor agrees
that the Trustee shall have no duties concerning the custody and preservation of
any Collateral in its possession (or in the possession of any agent or bailee)
or with respect to any income thereon or the preservation of rights against
prior parties or any other rights pertaining thereto. The Trustee shall be
deemed to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if it takes such action for that purpose as the
Debtor reasonably requests in writing, but failure of the Trustee to comply with
any such request at any time shall not of itself be deemed a failure to exercise
reasonable care. The Trustee shall not be liable or responsible for any loss or
damage to any of the Collateral, or for any diminution in the value thereof, by
reason of the act or omission of any warehouseman, carrier, forwarding agency,
consignee or other agent or bailee reasonably selected by the Trustee.
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(g) The Debtor assumes all liability and responsibility in
connection with the Collateral acquired by it, and the liability of the Debtor
to pay the Obligations shall in no way be affected or diminished by reason of
the fact that such Collateral may be lost, stolen, damaged, or for any reason
whatsoever unavailable to the Debtor.
(h) The Trustee agrees that upon payment in full of all Obligations,
the Security Interests shall automatically terminate and all rights to the
Collateral shall revert to the Debtor. The Trustee further agrees that upon such
termination of the Security Interests or release or re-assignment of any
Collateral, The Trustee shall, at the expense of the Debtor, return all
Collateral then in the Trustee's possession and execute and deliver to the
Debtor such documents as the Debtor shall reasonably request to evidence the
termination of the Security Interests or the release and re-assignment of such
Collateral, as the case may be.
4.13 Liens. The Collateral will be subject to no Liens, other than
Permitted Liens.
4.14 Maintenance of Insurance. The Debtor shall maintain with
reputable insurance companies that are not Affiliates of the Debtor, insurance
with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts (after giving effect to any self-insurance
compatible with the following standards) as are customarily carried under
similar circumstances by such other Persons and providing for not less than
thirty (30) days' prior notice to the Trustee of termination, lapse or
cancellation of such insurance.
If the Debtor fails to maintain the insurance required by the
immediately preceding paragraph, the Trustee may purchase such insurance at the
Debtor's expense, to protect the Trustee's interests in the Collateral. This
insurance may, but need not, protect the interests of the Debtor. The coverage
that the Trustee purchases may not pay any claim that the Debtor may make or any
claim that is made against the Debtor in connection with the Collateral. The
Debtor may later cancel any insurance purchased by the Trustee, but only after
providing the Trustee with evidence that the Debtor has obtained insurance as
required by this Agreement. If the Trustee purchases insurance for the
Collateral, the Debtor will be responsible for the costs of that insurance,
including interest and any other charges that may be imposed in connection with
the placement of the insurance, until the effective date of the cancellation or
expiration of the insurance. The costs of the insurance may be added to the
Obligations. The costs of the insurance may be more than the cost of insurance
that the Debtor may be able to obtain on its own.
4.15 Federal Compliance.
(a) The Debtor shall notify the Trustee in writing upon acquiring
any ownership interest in Federal Registration Collateral. The Debtor shall take
such steps as may be necessary in order to perfect the Trustee's Security
Interests in Federal Registration Collateral.
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(b) The Debtor shall notify the Trustee in writing of any Collateral
which constitutes a claim against the United States government or any
instrumentality or agency thereof, the assignment of which claim is restricted
by federal law. Upon the reasonable request of the Trustee, the Debtor shall
take such steps as may be necessary to comply with any applicable federal
assignment of claims laws and other comparable laws.
(c) The Debtor shall not produce any Inventory in violation of any
provision of the Fair Labor Standards Act of 1938, or in violation of any other
law.
4.16 Debtor Remains Liable. Anything herein to the contrary
notwithstanding: (i) the Debtor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein and shall
perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed; (ii) the exercise by the Trustee of any of
the rights hereunder shall not release the Debtor from any of its duties or
obligations under the contracts and agreements included in the Collateral; (iii)
neither the Trustee nor any Holder shall have any obligation or liability under
the contracts and agreements included in the Collateral by reason of this
Agreement, nor shall the Trustee nor any Holder be obligated to perform any of
the obligations or duties of the Debtor thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder; and (iv) neither
the Trustee nor any Holder shall have any liability in contract or tort for the
Debtor's acts or omissions.
4.17 Other Documents and Actions. The Debtor shall, from time to
time, at its expense, promptly execute and deliver all further instruments,
documents and notices and take all further action that may be necessary in order
to create, perfect and protect any Security Interests, or to enable the Trustee
to exercise and enforce its rights and remedies hereunder or under the Indenture
or any other Security Document with respect to any Collateral.
SECTION 5. Remedial Provisions.
(a) Upon the occurrence and during the continuance of an Event of
Default, the Trustee or its attorneys shall have the right without notice or
demand or legal process (unless the same shall be required by applicable law),
personally, or by an agent, (i) to enter upon, occupy and use any premises owned
or leased by the Debtor or where the Collateral is located (or is believed to be
located) until the Obligations are paid in full without any obligation to pay
rent to the Debtor, to render the Collateral useable or saleable and to remove
the Collateral or any part thereof to the premises of the Trustee for such time
as the Trustee may desire in order to effectively collect or liquidate the
Collateral and use in connection with such removal any and all services,
supplies and other facilities of the Debtor; (ii) to take possession of the
Debtor's original books and records, to obtain access to the Debtor's data
processing equipment, computer hardware and Software relating to the Collateral
and to use all of the foregoing and the information contained therein in any
manner the Trustee deems appropriate; and (iii) to notify postal authorities to
change the address for delivery of the Debtor's mail to an address designated by
the Trustee and to receive, open and dispose of all mail addressed to the
Debtor. If the Debtor's books and records are prepared or maintained by an
accounting service, contractor or other third party
15
agent, the Debtor hereby irrevocably authorizes such service, contractor or
other agent, upon notice by the Trustee to such Person that an Event of Default
has occurred and is continuing, to deliver to the Trustee or its designees such
books and records, and to follow the Trustee's instructions with respect to
further services to be rendered.
(b) If any Event of Default shall have occurred and be continuing,
the Trustee may exercise in respect of the Collateral, in addition to all other
rights and remedies provided for herein or otherwise available to it, all the
rights and remedies of the Trustee on default under the UCC (whether or not the
UCC applies to the affected Collateral) and also may: (i) require the Debtor to,
and the Debtor hereby agrees that it will, at its expense and upon request of
the Trustee forthwith, assemble all or part of the Collateral as directed by the
Trustee and make it available to the Trustee at any place or places designated
by the Trustee which is reasonably convenient to the Trustee in which event the
Debtor shall at its own expense (A) forthwith cause the same to be moved to the
place or places so designated by the Trustee, (B) store and keep any Collateral
so delivered to the Trustee at such place or places pending further action by
the Trustee, and (C) while Collateral shall be so stored and kept, provide such
guards and maintenance services as shall be necessary to protect the same and to
preserve and maintain the Collateral in good condition; (ii) withdraw all cash
in any deposit account and apply such monies in payment of the Obligations; and
(iii) without notice except as specified below, sell, lease, license or
otherwise dispose of the Collateral or any part thereof by one or more
contracts, in one or more parcels at public or private sale, and without the
necessity of gathering at the place of sale of the property to be sold, at any
of the Trustee's offices or elsewhere, at such time or times, for cash, on
credit or for future delivery, and at such price or prices and upon such other
terms as the Trustee may deem commercially reasonable.
(c) The Debtor agrees that, to the extent notice of sale shall be
required by law, a reasonable authenticated notification of disposition shall be
a notification given at least ten (10) days prior to any such sale and such
notice shall (i) describe the Trustee and the Debtor, (ii) describe the
Collateral that is the subject of the intended disposition, (iii) state the
method of intended disposition, (iv) state that the Debtor is entitled to an
accounting of the Obligations and state the charge, if any, for an accounting,
and (v) state the time and place of any public disposition or the time after
which any private sale is to be made. At any sale of the Collateral, if
permitted by law, the Trustee may bid (which bid may be, in whole or in part, in
the form of discharge of the Debtor's Obligations) for the purchase, lease,
license or other disposition of the Collateral or any portion thereof for the
account of the Trustee (on behalf of the Holders). The Trustee shall not be
obligated to make any sale of Collateral regardless of notice of sale having
been given. The Trustee may disclaim any warranties that might arise in
connection with the sale, lease, license or other disposition of the Collateral
and have no obligation to provide any warranties at such time. The Trustee may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned. To the extent permitted by law,
the Debtor hereby specifically waives all rights of redemption, stay or
appraisal, which it has or may have under any law now existing or hereafter
enacted.
16
(d) If an Event of Default has occurred and is continuing, the
Debtor hereby irrevocably authorizes and empowers the Trustee, without limiting
any other authorizations or empowerments contained in the Indenture or any of
the other Security Documents, to assert, either directly or on behalf of the
Debtor, any claims the Debtor may have, from time to time, against any other
party to any of the agreements to which the Debtor is a party or to otherwise
exercise any right or remedy of the Debtor under any such agreements (including,
without limitation, the right to enforce directly against any party to any such
agreement all of the Debtor's rights thereunder, to make all demands and give
all notices and to make all requests required or permitted to be made by the
Debtor thereunder).
(e) If an Event of Default has occurred and is continuing, the
proceeds of any collection, enforcement, sale or other disposition of, or other
realization upon, all or any part of the Collateral and any cash held in any
deposit account shall be applied in accordance with the applicable provisions of
the Indenture.
(f) The Debtor acknowledges and agrees that a breach of any of the
covenants contained in Sections 4, 5 and 6 hereof will cause irreparable injury
to the Trustee and that the Trustee has no adequate remedy at law in respect of
such breaches and therefore agrees, without limiting the right of the Trustee to
seek and obtain specific performance of other obligations of the Debtor
contained in this Agreement, that the covenants of the Debtor contained in the
Sections referred to in this Section shall be specifically enforceable against
the Debtor.
(g) No failure or delay on the part of the Trustee or any Holder in
the exercise of any power, right or privilege hereunder shall impair such power,
right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or any other right, power
or privilege. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
SECTION 6. Attorney-in-Fact.
The Debtor hereby irrevocably appoints the Trustee, its nominee, and
any other Person whom the Trustee may designate, as the Debtor's
attorney-in-fact, with full power during the existence of any Event of Default,
(i) to sign the Debtor's name on verifications of Accounts and other Collateral;
(ii) to send requests for verification of Collateral to the Debtor's customers,
Account Debtors and other obligors; (iii) to endorse the Debtor's name on any
checks, notes, acceptances, money orders, drafts, and any other forms of payment
or security that may come into the Trustee's possession or on any assignments,
stock powers, or other instruments of transfer relating to the Collateral or any
part thereof; (iv) to sign the Debtor's name on any invoice or ▇▇▇▇ of lading
relating to any Collateral, on claims to enforce collection of any Collateral,
on notices to and drafts against customers and Account Debtors and other
obligors, on schedules and assignments of Collateral, on notices of assignment
and on public records; (v) to notify the post office authorities to change the
address for delivery of the Debtor's mail to an address designated by the
Trustee; (vi) to receive, open and dispose of all mail addressed to the Debtor;
and (vii) to do all things
17
necessary to carry out the terms and provisions of this Agreement. To the
fullest extent permitted by law, the Debtor hereby ratifies and approves all
acts of any such attorney and agrees that neither the Trustee nor any such
attorney will be liable for any acts or omissions nor for any error of judgment
or mistake of fact or law other than, and to the extent of, such Person's gross
negligence or willful misconduct. The foregoing powers of attorney, being
coupled with an interest, are irrevocable until the Obligations have been fully
paid and satisfied and the Security Interests shall have terminated in
accordance with the terms hereof.
SECTION 7. Expenses.
The Debtor hereby agrees to promptly pay all fees, costs and
expenses (including reasonable attorneys' fees and expenses) incurred in
connection with (i) protecting, storing, warehousing, appraising, insuring,
handling, maintaining and shipping the Collateral, (ii) creating, perfecting,
maintaining and enforcing the Trustee's Liens and (iii) collecting, enforcing,
retaking, holding, preparing for disposition, processing and disposing of the
Collateral.
If the Debtor fails to promptly pay any portion of the above costs,
fees and expenses when due or to perform any other obligation of the Debtor
under this Agreement, the Trustee may, at its option, but shall not be required
to, pay or perform the same and charge the Debtor's account for all reasonable
fees, all costs and all expenses incurred therefor, and the Debtor agrees to
reimburse the Trustee therefor promptly upon written demand. All sums so paid or
incurred by the Trustee or any Holder for any of the foregoing, any and all
other sums for which the Debtor may become liable hereunder and all fees, costs
and expenses (including reasonable attorneys' fees, all legal expenses and all
court costs) incurred by the Trustee in enforcing or protecting the Security
Interests or any of their rights or remedies under this Agreement shall
constitute Obligations and, to the extent not paid when due, shall bear interest
until paid at the Default Rate and shall be secured by the Collateral.
SECTION 8. Notices.
All notices, approvals, requests, demands and other communications
hereunder to be delivered to the Debtor and all notices, approvals, requests,
demands and other communications hereunder shall be given in accordance with the
notice provision of the Indenture.
SECTION 9. Successors and Assigns.
This Agreement shall be binding upon and insure to the benefit of
the parties hereto and their respective successors and assigns except that the
Debtor may not assign its rights or obligations hereunder without the written
consent of the Trustee. No sales of participations, other sales, assignments,
transfers or other dispositions of any agreement governing or instrument
evidencing the Obligations or any portion thereof or interest therein, made in
accordance with the applicable provisions of the Indenture shall in any manner
impair the Lien granted to the Trustee, for the benefit of the Trustee and the
Holders, hereunder.
18
SECTION 10. Changes in Writing.
No amendment, modification, termination or waiver of any provision
of this Agreement shall be effective unless the same shall be in writing signed
by the Trustee.
SECTION 11. GOVERNING LAW; SUBMISSION TO JURISDICTION.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, the LAWS OF THE STATE OF ILLINOIS applicable to agreements made and to be
performed entirely within such State; PROVIDED THAT THE DEBTOR AND THE TRUSTEE
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF ILLINOIS SITTING IN ▇▇▇▇ COUNTY, ILLINOIS OR OF THE UNITED STATES FOR
THE NORTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE DEBTOR AND THE Trustee CONSENT, FOR THEMSELVES AND IN RESPECT OF
THEIR PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE DEBTOR
AND THE Trustee IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH THEY MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT. THE DEBTOR AND THE Trustee WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
SECTION 12. WAIVER OF JURY TRIAL.
EACH OF THE DEBTOR AND TRUSTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
SECTION 13. Counterparts; Integration.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement constitutes the entire
agreement and understanding among the parties hereto and supersede any and all
prior agreements and understandings, oral or written, relating to the subject
matter hereof.
19
SECTION 14. Headings.
Headings and captions used in this Agreement are included for
convenience of reference and shall not be given any substantive effect.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
PEI HOLDINGS, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Its Treasurer
BANK ONE, N.A.
as Trustee
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Its Vice President
Schedule I
Organizational Information
(i) Name of Debtor
PEI Holdings, Inc.
(ii) Former Name(s) (within a 5-year period preceding the date hereof)
None
(iii) Type of Organization
Corporation
(iv) Jurisdiction of Organization
Delaware
(v) Organizational Identification Number
2970390
Schedule II
Collateral Locations
(i) Location of Chief Executive ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
(Leased Location)
(ii) Other Locations/ Third-Party Locations/Fixture Locations
None
Schedule III
Commercial Tort Claims
None.
Schedule IV
Certain Collateral Disclosures
None.
Schedule V
Intellectual Property Claims
None.