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FORM OF
GUARANTEE AND COLLATERAL AGREEMENT
made by
PURINA ▇▇▇▇▇, INC.
and certain of its Subsidiaries
in favor of
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
as Administrative Agent
March 12, 1998
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Table of Contents
Page
SECTION 1. DEFINED TERMS.........................................1
1.1 Definitions............................................1
1.2 Other Definitional Provisions..........................4
SECTION 2. GUARANTEE.............................................5
2.1 Guarantee..............................................5
2.2 Right of Contribution..................................5
2.3 No Subrogation.........................................5
2.4 Amendments, etc. with respect to the
Company Obligations....................................6
2.5 Guarantee Absolute and Unconditional...................6
2.6 Reinstatement..........................................7
2.7 Payments...............................................7
SECTION 3. GRANT OF SECURITY INTEREST............................7
SECTION 4. REPRESENTATIONS AND WARRANTIES........................8
4.1 Representations in Credit Agreement....................8
4.2 Title; No Other Liens..................................8
4.3 Perfected First Priority Liens.........................8
4.4 Chief Executive Office.................................9
4.5 Inventory and Equipment................................9
4.6 Farm Products..........................................9
4.7 Pledged Securities.....................................9
4.8 Undelivered Instruments................................9
SECTION 5. COVENANTS............................................10
5.1 Covenants in Credit Agreement.........................10
5.2 Delivery of Instruments and Chattel Paper.............10
5.3 Insurance.............................................10
5.4 Maintenance of Perfected Security Interest;
Further Documentation.................................10
5.5 Changes in Locations, Name, etc.......................11
5.6 Notices...............................................11
5.7 Pledged Securities....................................11
5.8 Receivables...........................................12
5.9 Intellectual Property.................................12
SECTION 6. REMEDIAL PROVISIONS..................................14
6.1 Certain Matters Relating to Receivables...............14
6.2 Communications with Obligors; Grantors Remain Liable..14
6.3 Pledged Equity........................................15
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6.4 Proceeds to be Turned Over To Administrative Agent....15
6.5 Application of Proceeds...............................16
6.6 Code and Other Remedies...............................16
6.7 Registration Rights...................................17
6.8 Waiver; Deficiency....................................18
SECTION 7. THE ADMINISTRATIVE AGENT.............................18
7.1 Administrative Agent's Appointment
as Attorney-in-Fact etc...............................18
7.2 Duty of Administrative Agent..........................19
7.3 Execution of Financing Statements.....................20
7.4 Authority of Administrative Agent.....................20
SECTION 8. MISCELLANEOUS........................................20
8.1 Amendments in Writing.................................20
8.2 Notices...............................................20
8.3 No Waiver by Course of Conduct; Cumulative Remedies...20
8.4 Enforcement Expenses; Indemnification.................21
8.5 Successors and Assigns................................21
8.6 Set-Off...............................................21
8.7 Counterparts..........................................21
8.8 Severability..........................................22
8.10 Governing Law; Submission to Jurisdiction; etc........22
8.11 Acknowledgments.......................................23
8.12 Section Headings......................................23
8.13 Additional Grantors...................................23
8.14 Releases..............................................23
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GUARANTEE AND COLLATERAL AGREEMENT, dated as of March
12, 1998, made by each of the signatories hereto (together with
any other entity that may become a party hereto as provided
herein, the "Grantors"), in favor of CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, as Administrative Agent (in such capacity,
the "Administrative Agent") for the ratable benefit of (a) the
banks and other financial institutions or entities (the
"Lenders") from time to time parties to the Credit Agreement,
dated as of March 12, 1998, (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"),
among PURINA ▇▇▇▇▇, INC., a Delaware corporation (the "Company"),
the Lenders and the Administrative Agent, (b) the Issuing Banks
(as defined in the Credit Agreement), and (c) the Secured
Affiliates (as defined in the Credit Agreement).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Company upon
the terms and subject to the conditions set forth therein;
WHEREAS, the Company is a member of an affiliated group
of companies that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the
Credit Agreement will be used in part to enable the Company to
make valuable transfers to one or more of the other Grantors in
connection with the operation of their respective businesses;
WHEREAS, the Company and the other Grantors are engaged in
related businesses and each Grantor will derive substantial
direct and indirect benefit from the making of the extensions of
credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to (a) the obligation
of the Lenders to make their respective extensions of credit to
the Company under the Credit Agreement, (b) the issuance of
Letters of Credit by the Issuing Banks and (c) the entering into
of Hedge Agreements by the Secured Affiliates, that the Grantors
shall have executed and delivered this Agreement;
NOW, THEREFORE, in consideration of the premises and to
induce the Administrative Agent and the Lenders to enter into the
Credit Agreement and to induce (a) the Lenders to make their
respective extensions of credit to the Company thereunder, (b)
the Issuing Banks to issue Letters of Credit thereunder, and (c)
the Secured Affiliates to enter into Hedge Agreements, each
Grantor hereby agrees as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement, and the following
terms which are defined in the Uniform Commercial Code in effect
in the State of New York on the date hereof are used herein as so
defined: Accounts, Chattel Paper, Documents, Equipment, Farm
Products, Instruments and Inventory.
(b) The following terms shall have the following meanings:
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"Agreement" shall mean this Guarantee and Collateral
Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
"Code" shall mean the Uniform Commercial Code as from time
to time in effect in the State of New York.
"Collateral" shall have the meaning provided in Section 3.
"Collateral Account" shall mean any collateral account
established by the Administrative Agent as provided in Section
6.1 or 6.4.
"Company Obligations" shall mean the collective reference
to all Lender Indebtedness, including, without limitation, the
unpaid principal of and interest on the Loans and Reimbursement
Obligations and all other obligations and liabilities of the
Company (including, without limitation, interest accruing at the
then applicable rate provided in the Credit Agreement after the
maturity of the Loans and Reimbursement Obligations and interest
accruing at the then applicable rate provided in the Credit
Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like
proceeding, relating to the Company, whether or not a claim for
post-filing or post-petition interest is allowed in such
proceeding) to the Administrative Agent, any Issuing Bank or any
Lender (or, in the case of any Hedge Agreement referred to below,
any Secured Affiliate), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with,
the Credit Agreement, this Agreement, the other Financing
Documents, any Letter of Credit or any Hedge Agreement entered
into by the Company with any Lender (or any Secured Affiliate) or
any other document made, delivered or given in connection
therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees
and disbursements of counsel to the Administrative Agent or to
the Lenders that are required to be paid by the Company pursuant
to the terms of any of the foregoing agreements).
"Copyrights" shall mean (i) all copyrights, in the United
States or any other country, whether registered or unregistered,
or published or unpublished, including, without limitation, those
listed in Schedule 6, all registrations and recordings thereof
and all applications in connection therewith, including, without
limitation, all registrations, recordings and applications listed
in Schedule 6, and (ii) the right to obtain all renewals thereof.
"Copyright Licenses" shall mean any agreement, whether
written or oral, providing for the grant by or to any Grantor of
any right under any Copyright, including, without limitation, the
grant of rights to manufacture, distribute, exploit and sell
materials derived from any Copyright and including further,
without limitation, any of the foregoing listed in Schedule 6.
"Equity" shall mean shares of capital stock or a
partnership, profits, capital or member interest, or options,
warrants or any other right to substitute for or otherwise
acquire the capital stock or a partnership, profits, capital or
member interest of any Person.
"General Intangibles" shall mean all "general intangibles"
as such term is defined in Section 9-106 of the Uniform
Commercial Code in effect in the State of New York on the date
hereof and, in any event,
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including, without limitation, with respect to any
Grantor, all contracts, agreements, instruments and indentures in
any form, and portions thereof, to which such Grantor is a party
or under which such Grantor has any right, title or interest or
to which such Grantor or any property of such Grantor is subject,
as the same may from time to time be amended, supplemented or
otherwise modified, including, without limitation, (i) all rights
of such Grantor to receive moneys due and to become due to it
thereunder or in connection therewith, (ii) all rights of such
Grantor to damages arising thereunder and (iii) all Equities that
constitute "general intangibles" and (iv) all rights of such
Grantor to perform and to exercise all remedies thereunder.
"Guaranteed Parties" shall mean the collective reference to
the Administrative Agent, each Lender, each Issuing Bank and each
Secured Affiliate.
"Guarantor Obligations" shall mean, with respect to any
Guarantor, the collective reference to (i) the Company
Obligations and (ii) all obligations and liabilities of such
Guarantor which may arise under or in connection with this
Agreement or any other Financing Document to which such Guarantor
is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all
reasonable fees and disbursements of counsel to the
Administrative Agent or to the other Guaranteed Parties that are
required to be paid by such Guarantor pursuant to the terms of
this Agreement or any other Financing Document).
"Guarantors" shall mean the collective reference to each
Grantor other than the Company.
"Intellectual Property" shall mean all rights, priorities
and privileges provided under U.S., multinational and foreign law
relating to intellectual property, including without limitation,
the Copyrights, the Copyright Licenses, the Patents, the Patent
Licenses, the Trademarks and the Trademark Licenses, 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.
"Issuers" shall mean the collective reference to each
issuer of Pledged Equity.
"Obligations" shall mean (i) in the case of the Company,
the Company Obligations, and (ii) in the case of each Guarantor,
its Guarantor Obligations.
"Patents" shall mean (i) all letters patent of the United
States or any other country and all reissues and extensions
thereof, including, without limitation, any of the foregoing
referred to in Schedule 6, (ii) all applications for letters
patent of the United States or any other country and all
divisions, continuations and continuations-in-part thereof,
including, without limitation, any of the foregoing referred to
in Schedule 6, and (iii) all rights to obtain any reissues or
extensions of the foregoing.
"Patent License" shall mean all agreements, whether written
or oral, providing for the grant by or to any Grantor of any
right to manufacture, use or sell any invention covered in whole
or in part by a Patent, including, without limitation, any of the
foregoing referred to in Schedule 6.
"Pledged Equity" shall mean, without limitation, the shares
or other evidence of or designation of Equity listed on Schedule
2, together with any other shares, stock certificates, options or
rights of any nature whatsoever in respect of the Equity of any
Person that may be issued or granted to, or held by, any Grantor
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while this Agreement is in effect to the extent that the pledge
of such Equity of any Person hereunder is not prohibited by
applicable law or by the organizational documents of such Person.
"Pledged Notes" shall mean all promissory notes issued to
or held by any Grantor (other than promissory notes issued in
connection with extensions of trade credit by any Grantor in the
ordinary course of business).
"Pledged Securities" shall mean the collective reference to
the Pledged Notes and the Pledged Equity.
"Proceeds" shall mean all "proceeds" as such term is
defined in Section 9-306(1) of the Uniform Commercial Code in
effect in the State of New York on the date hereof and, in any
event, shall include, without limitation, all dividends or other
income from the Pledged Securities, collections thereon or
distributions or payments with respect thereto.
"Receivable" any right to payment for goods sold or leased
or for services rendered, whether or not such right is evidenced
by an Instrument or Chattel Paper and whether or not it has been
earned by performance (including, without limitation, any
Account).
"Securities Act" the Securities Act of 1933, as amended.
"Trademarks" (i) 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 all goodwill associated therewith, now existing
or hereafter adopted or acquired, all registrations and
recordings thereof, and all applications in connection therewith,
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,
including, without limitation, any of the foregoing referred to
in Schedule 6, and (ii) the right to obtain all renewals thereof.
"Trademark License" any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use
any Trademark, including, without limitation, any of the
foregoing referred to in Schedule 6.
"Undelivered Instruments" as defined in Section 4.8.
1.2 Other Definitional Provisions. (a) The words "hereof,"
"herein", "hereto" and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and
Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a
Grantor, shall refer to such Grantor's Collateral or the relevant
part thereof.
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SECTION 2. GUARANTEE
2.1 Guarantee. (a) Each of the Guarantors hereby,
jointly and severally, unconditionally and irrevocably,
guarantees to the Administrative Agent, for the ratable benefit
of the Guaranteed Parties and their respective successors,
indorsees, transferees and assigns, the prompt and complete
payment and performance by the Company when due (whether at the
stated maturity, by acceleration or otherwise) of the Company
Obligations.
(b) Anything herein or in any other Financing Document to
the contrary notwithstanding, the maximum liability of each
Guarantor hereunder and under the other Financing Documents shall
in no event exceed the amount which can be guaranteed by such
Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of
contribution established in Section 2.2).
(c) Each Guarantor agrees that the Company Obligations may
at any time and from time to time exceed the amount of the
liability of such Guarantor hereunder without impairing the
guarantee contained in this Section 2 or affecting the rights and
remedies of any Guaranteed Party hereunder.
(d) The guarantee contained in this Section 2 shall remain
in full force and effect until all the Company Obligations and
the obligations of each Guarantor under the guarantee contained
in this Section 2 shall have been satisfied by payment in full,
no Letter of Credit shall be outstanding and the Commitments
shall have been terminated, notwithstanding that from time to
time during the term of the Credit Agreement the Company may be
free from any Company Obligations.
(e) No payment made by the Company, any of the Guarantors,
any other guarantor or any other Person or received or collected
by the Administrative Agent or any other Guaranteed Party from
the Company, any of the Guarantors, any other guarantor or any
other Person by virtue of any action or proceeding or any set-off
or appropriation or application at any time or from time to time
in reduction of or in payment of the Company Obligations shall be
deemed to modify, reduce, release or otherwise affect the
liability of any Guarantor hereunder which shall, notwithstanding
any such payment (other than any payment made by such Guarantor
in respect of the Company Obligations or any payment received or
collected from such Guarantor in respect of the Company
Obligations), remain liable for the Company Obligations up to the
maximum liability of such Guarantor hereunder until, subject to
Section 2.6, the Company Obligations are paid in full, no Letter
of Credit shall be outstanding and the Commitments are
terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees
that to the extent that a Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Guarantor
shall be entitled to seek and receive contribution from and
against any other Guarantor hereunder which has not paid its
proportionate share of such payment. Each Guarantor's right of
contribution shall be subject to the terms and conditions of
Section 2.3. The provisions of this Section 2.2 shall in no
respect limit the obligations and liabilities of any Guarantor to
the Administrative Agent and the other Guaranteed Parties, and
each Guarantor shall remain liable to the Administrative Agent
and the other Guaranteed Parties for the full amount guaranteed
by such Guarantor hereunder.
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2.3 No Subrogation. Notwithstanding any payment made by
any Guarantor hereunder or any set-off or application of funds of
any Guarantor by the Administrative Agent or any other Guaranteed
Party, no Guarantor shall be entitled to be subrogated to any of
the rights of the Administrative Agent or any other Guaranteed
Party against the Company or any other Guarantor or any
collateral security or guarantee or right of offset held by the
Administrative Agent or any other Guaranteed Party for the
payment of the Company Obligations, nor shall any Guarantor seek
or be entitled to seek any contribution or reimbursement from the
Company or any other Guarantor in respect of payments made by
such Guarantor hereunder, until all amounts owing to the
Administrative Agent and the other Guaranteed Parties by the
Company on account of the CompanyObligations are paid in full, no
Letter of Credit shall be outstanding and the Commitments are
terminated. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the
Company Obligations shall not have been paid in full, such amount
shall be held by such Guarantor in trust for the Guaranteed
Parties, segregated from other funds of such Guarantor, and
shall, forthwith upon receipt by such Guarantor, be turned over
to the Administrative Agent in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Administrative
Agent, if required), to be applied against the Company
Obligations, whether matured or unmatured, in such order as the
Administrative Agent may determine.
2.4 Amendments, etc. with respect to the Company
Obligations. Each Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against
any Guarantor and without notice to or further assent by any
Guarantor, any demand for payment of any of the Company
Obligations made by the Administrative Agent or any other
Guaranteed Party may be rescinded by the Administrative Agent or
such Guaranteed Party and any of the Company Obligations
continued, and the Company Obligations, or the liability of any
other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any other
Guaranteed Party, and the Credit Agreement and the other
Financing Documents and any other documents executed and
delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the
Administrative Agent, the Required Lenders, any Issuing Bank, any
Secured Affiliate, or all Lenders, as the case may be, may deem
advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the
Administrative Agent or any other Guaranteed Party for the
payment of the Company Obligations may be sold, exchanged,
waived, surrendered or released. No Guaranteed Party shall have
any obligation to protect, secure, perfect or insure any Lien at
any time held by it as security for the Company Obligations or
for the guarantee contained in this Section 2 or any property
subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor
waives any and all notice of the creation, renewal, extension or
accrual of any of the Company Obligations and notice of or proof
of reliance by the Administrative Agent or any other Guaranteed
Party upon the guarantee contained in this Section 2 or
acceptance of the guarantee contained in this Section 2; the
Company Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Company
and any of the Guarantors, on the one hand, and any of the
Guaranteed Parties, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance
upon the guarantee contained in this Section 2. Each Guarantor
waives diligence, presentment, protest, demand for payment,
notice of intent to accelerate, notice of acceleration and notice
of default or nonpayment to or upon the Company or
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any of the Guarantors with respect to the Company
Obligations. Each Guarantor understands and agrees that the
guarantee contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of the
Credit Agreement or any other Financing Document, any of the
Company Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any other
Guaranteed Party, (b) any defense, set-off or counterclaim (other
than a defense of payment or performance) which may at any time
be available to or be asserted by the Company or any other Person
against the Administrative Agent or any other Guaranteed Party,
or (c) any other circumstance whatsoever (with or without notice
to or knowledge of the Company or such Guarantor) which
constitutes, or might be construed to constitute, an equitable or
legal discharge of the Company for the Company Obligations, or of
such Guarantor under the guarantee contained in this Section 2,
in bankruptcy or in any other instance. When making any demand
hereunder or otherwise pursuing its rights and remedies
hereunder against any Guarantor, the Administrative Agent or any
other Guaranteed Party may, but shall be under no obligation to,
make a similar demand on or otherwise pursue such rights and
remedies as it may have against the Company, any other Guarantor
or any other Person or against any collateral security or
guarantee for the Company Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent or
any other Guaranteed Party to make any such demand, to pursue
such other rights or remedies or to collect any payments from the
Company, any other Guarantor or any other Person or to realize
upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of the Company, any other
Guarantor or any other Person or any such collateral security,
guarantee or right of offset, shall not relieve any Guarantor of
any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent or any
other Guaranteed Party against any Guarantor. For the purposes
hereof "demand" shall include the commencement and continuance of
any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section
2 shall continue to be effective, or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any of
the Company Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any other
Guaranteed Party upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Company or any Guarantor, or
upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Company
or any Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that
payments hereunder will be paid to the Administrative Agent
without set-off or counterclaim and in immediately available
funds and in Dollars at the Payment Office, not later than 11:00
a.m., Houston time.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the
Administrative Agent, and hereby grants to the Administrative
Agent, for the ratable benefit of the Guaranteed Parties, a
security interest in, all of the following property now owned or
at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any
right, title or interest (collectively, the "Collateral"), as
collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by
acceleration or otherwise) of such Grantor's Obligations:
7
(a) all Accounts;
(b) all Chattel Paper;
(c) all Documents;
(d) all Equipment;
(e) all General Intangibles;
(f) all Instruments;
(g) all Intellectual Property;
(h) all Inventory;
(i) all Pledged Securities;
(j) all books and records pertaining to the Collateral; and
(k) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any
of the foregoing.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Issuing Banks and
the Lenders to enter into the Credit Agreement and to induce (a)
the Lenders to make their respective extensions of credit to the
Company thereunder, (b) the Issuing Banks to issue Letters of
Credit thereunder, and (c) the Secured Affiliates to enter into
Hedge Agreements, each Grantor hereby represents and warrants to
the Administrative Agent and each other Guaranteed Party that:
4.1 Representations in Credit Agreement. In the case of
each Guarantor, the representations and warranties set forth in
Article 4 of the Credit Agreement as they relate to such
Guarantor or to the Financing Documents to which such Guarantor
is a party, each of which is hereby incorporated herein by
reference, are true and correct, and the Administrative Agent and
each other Guaranteed Party shall be entitled to rely on each of
them as if they were fully set forth herein.
4.2 Title; No Other Liens. Except for the security interest
granted to the Administrative Agent for the ratable benefit of
the Guaranteed Parties pursuant to this Agreement and the other
Liens expressly permitted to exist on the Collateral by the
Credit Agreement, such Grantor owns each item of the Collateral
free and clear of any and all Liens or claims of others. No
financing statement or other public notice with respect to all or
any part of the Collateral is on file or of record in any public
office, except such as have been filed in favor of the
Administrative Agent, for the ratable benefit of the Guaranteed
Parties, pursuant to this Agreement or as are expressly permitted
by the Credit Agreement.
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4.3 Perfected First Priority Liens. The security interests
granted pursuant to this Agreement (a) upon completion of the
filings and other actions specified on Schedule 3 (which, in the
case of all filings and other documents referred to on said
Schedule, have been delivered to the Administrative Agent in
completed and duly executed form) will constitute valid perfected
security interests in all of the Collateral in favor of the
Administrative Agent, for the ratable benefit of the Guaranteed
Parties, as collateral security for such Grantor's Obligations,
enforceable in accordance with the terms hereof against all
creditors of such Grantor and any Persons purporting to purchase
any Collateral from such Grantor subject to (a) bankruptcy,
insolvency, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally, and
(b) general principles of equity (regardless of whether
considered in a proceeding at law or in equity), and (b) are
prior to all other Liens on the Collateral in existence on the
date hereof except for unrecorded Liens expressly permitted by
the Credit Agreement which have priority over the Liens on the
Collateral by operation of law.
4.4 Chief Executive Office. On the date hereof, such
Grantor's jurisdiction of organization and the location of such
Grantor's chief executive office or sole place of business are
specified on Schedule 4.
4.5 Inventory and Equipment. On the date hereof, the
Inventory and the Equipment (other than mobile goods) are kept at
the locations listed on Schedule 5.
4.6 Farm Products. None of the Collateral constitutes,
or is the Proceeds of, Farm Products.
4.7 Pledged Securities. (a) The shares of Pledged Equity
pledged by such Grantor hereunder constitute all the issued and
outstanding shares of all classes of the Equity of each Issuer
owned by such Grantor.
(b) All the shares of the Pledged Equity issued by
corporate issuers have been duly and validly issued and, with
respect to all corporate issuers that are wholly owned, directly
or indirectly, by the Company, are fully paid and nonassessable,
and, with respect to all corporate issuers that are not
controlled by the Company, to the best of such Grantor's
knowledge, are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid
and binding obligation of the obligor with respect thereto,
enforceable in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and
has good and marketable title to, the Pledged Securities pledged
by it hereunder, free of any and all Liens or options in favor
of, or claims of, any other Person, except the security interest
created by this Agreement.
4.8 Undelivered Instruments. The aggregate of all amounts
payable to the Grantors under or in connection with any (a)
Pledged Note or (b) Receivable that is evidenced by any
Instrument or Chattel Paper which has not been delivered to the
Administrative Agent (collectively, "Undelivered Instruments")
does not exceed $50,000.
9
4.9 Intellectual Property. (a) Schedule 6 lists all
Intellectual Property owned or licensed by such Grantor in its
own name on the date hereof.
(b) All Intellectual Property of such Grantor is on the
date hereof valid, subsisting, unexpired, enforceable, has not
been abandoned, and does not infringe the Intellectual Property
rights of a third party, except where the expiration, abandonment
or infringement could not reasonably be expected to have a
Material Adverse Effect.
(c) Except as set forth in Schedule 6, none of the
Intellectual Property is on the date hereof the subject of any
licensing or franchise agreement pursuant to which such Grantor
is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by
any Governmental Authority which
would limit, cancel or question the validity of, or such
Grantor's rights in, any Intellectual Property in any respect
that could reasonably be expected to have a Material Adverse
Effect.
(e) No action or proceeding is pending or, to the knowledge
of such Grantor, threatened on the date hereof seeking to limit,
cancel or question the validity, or such Grantor's ownership, of
any Intellectual Property which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
SECTION 5. COVENANTS
Each Grantor covenants and agrees that, from and after the
date of this Agreement until the Obligations shall have been paid
in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
5.1 Covenants in Credit Agreement. In the case of each
Guarantor, such Guarantor shall take, or shall refrain from
taking, as the case may be, each action that is necessary to be
taken or not taken, as the case may be, so that no Default or
Event of Default is caused by the failure to take such action or
to refrain from taking such action by such Guarantor or any of
its Subsidiaries.
5.2 Delivery of Instruments and Chattel Paper. If the
aggregate of all amounts payable to the Grantors pursuant to
Undelivered Instruments shall exceed $50,000, such Undelivered
Instruments, to the extent necessary to eliminate such excess,
shall be immediately delivered to the Administrative Agent, duly
indorsed in a manner satisfactory to the Administrative Agent, to
be held as Collateral pursuant to this Agreement.
5.3 Insurance. Each Grantor shall cause each casualty
insurance policy maintained by it to (a) provide that no
cancellation, material reduction in amount or material change in
coverage thereof shall be effective until at least 30 days after
receipt by the Administrative Agent of written notice thereof,
(b) name the Administrative Agent as insured party or loss payee,
(c) if reasonably requested by the Administrative Agent, include
a breach of warranty clause, and (d) be reasonably satisfactory
in all other respects to the Administrative Agent.
5.4 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
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priority described in Section 4.3 and shall defend such
security interest against the claims and demands of all Persons
whomsoever.
(b) Such Grantor will furnish to the Administrative Agent
and the other Guaranteed Parties from time to time statements and
schedules further identifying and describing the Collateral and
such other reports in connection with the Collateral as the
Administrative Agent may reasonably request, all in such detail
as the Administrative Agent may reasonably request.
(c) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of
such Grantor, such Grantor will promptly and duly execute,
deliver and/or have recorded with appropriate agencies such
further instruments and documents and take such further actions
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, including,
without limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code (or other similar
laws) in effect in any jurisdiction with respect to the security
interests created hereby.
5.5 Changes in Locations, Name, etc. Such Grantor will
not, except upon 30 days' prior written notice to the
Administrative Agent and delivery to the Administrative Agent of
all additional executed 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:
(a) permit any of the Inventory or Equipment (other than
(i) immaterial Inventory and Equipment, and (ii) Inventory and
Equipment in transit in the ordinary course of business) to be
kept at a location other than those listed on Schedule 5;
(b) change the location of its chief executive office or
sole place of business from that referred to in Section 4.4; or
(c) change its name, identity or corporate structure to
such an extent that any financing statement filed by the
Administrative Agent in connection with this Agreement would
become misleading.
5.6 Notices. Such Grantor will advise the Administrative
Agent and the other Guaranteed Parties promptly, in reasonable
detail, of any Lien (other than security interests created hereby
or Liens permitted under the Credit Agreement) on any of the
Collateral which would adversely affect the ability of the
Administrative Agent to exercise any of its remedies hereunder.
5.7 Pledged Securities. (a) If such Grantor shall become
entitled to receive or shall receive any share certificate
(including, without limitation, any certificate representing a
stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option
or rights in respect of the Equity of any Issuer, whether in
addition to, in substitution of, as a conversion of, or in
exchange for, any shares of the Pledged Equity, or otherwise in
respect thereof, such Grantor shall accept the same as the agent
of the Administrative Agent and the other Guaranteed Parties,
hold the same in trust for the Administrative Agent and the other
Guaranteed Parties and deliver the same forthwith to the
Administrative Agent in the exact form received, duly indorsed by
such Grantor to the Administrative Agent, if required, together
with an undated stock power covering such
11
certificate duly executed in blank by such Grantor and
with, if the Administrative Agent so requests, signature
guaranteed, to be held by the Administrative Agent, subject to
the terms hereof, as additional collateral security for the
Obligations. If an Event of Default shall have occurred and be
continuing, (i) any sums paid upon or in respect of the Pledged
Securities upon the liquidation or dissolution of any Issuer
shall be paid over to the Administrative Agent to be held by it
hereunder as additional collateral security for the Obligations,
and (ii) in case any distribution of capital shall be made on or
in respect of the Pledged Securities or any property shall be
distributed upon or with respect to the Pledged Securities
pursuant to the recapitalization or reclassification of the
capital of any Issuer or pursuant to the reorganization thereof,
the property so distributed shall, unless otherwise subject to a
perfected security interest in favor of the Administrative Agent
for the ratable benefit of the Guaranteed Parties, be delivered
to the Administrative Agent to be held by it hereunder as
additional collateral security for the Obligations. If any sums
of money or property so paid or distributed in respect of the
Pledged Securities shall be received by such Grantor, such
Grantor shall, until such money or property is paid or delivered
to the Administrative Agent, hold such money or property in trust
for the Administrative Agent and the other Guaranteed Parties,
segregated from other funds of such Grantor, as additional
collateral security for the Obligations.
(b) Without the prior written consent of the Administrative
Agent, such Grantor will not (i) vote to enable, or take any
other action to permit, any Issuer to issue any stock or other
equity securities of any nature (except to the extent such stock
or other securities are pledged to the Administrative Agent
hereunder) 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, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option
with respect to, the Pledged Securities or Proceeds thereof
(except pursuant to a transaction expressly permitted by the
Credit Agreement), (iii) create, incur or permit to exist any
Lien or option in favor of, or any claim of any Person with
respect to, any of the Pledged Securities or Proceeds thereof, or
any interest therein, except for the security interests created
by this Agreement or other Liens permitted by the Credit
Agreement, or (iv) enter into any agreement or undertaking
restricting the right or ability of such Grantor or the
Administrative Agent to Dispose of any of the Pledged Securities
or Proceeds thereof (except, in the case of this clause (iv), in
connection with a Disposition expressly permitted by the Credit
Agreement).
(c) In the case of each Grantor which is an Issuer, such
Issuer agrees that (i) it will be bound by the terms of this
Agreement relating to the Pledged Securities issued by it and
will comply with such terms insofar as such terms are applicable
to it, (ii) it will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in
Section 5.7(a) with respect to the Pledged Securities issued by
it, and (iii) the terms of Sections 6.3 and 6.7 shall apply to
it, mutatis mutandis, with respect to all actions that may be
required of it pursuant to Section 6.3 or 6.7 with respect to the
Pledged Securities issued by it.
5.8 Receivables. (a) Other than in the ordinary course of
business, such Grantor will not (i) grant any extension of the
time of payment of any Receivable, (ii) compromise or settle any
Receivable for less than the full amount thereof, (iii) release,
wholly or partially, any Person liable for the payment of any
Receivable, (iv) allow any credit or discount whatsoever on any
Receivable or (v) amend, supplement or modify any Receivable in
any manner that could adversely affect the value thereof.
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(b) If at any time the aggregate amount owing to the
Grantors on all Accounts as to which a Governmental Authority is
an obligor exceeds 5% of the aggregate amount owing to the
Grantors on all Accounts, the Company shall so notify the
Administrative Agent and, if requested by the Administrative
Agent, at the Grantors' sole cost and expense, from and after the
date on which such aggregate amount first exceeds such
percentage, deliver to the Administrative Agent such assignments,
notices of assignment and other documents or information as shall
be necessary or otherwise reasonably requested by the
Administrative Agent to permit the assignment hereunder of all
Accounts as to which a Governmental Authority is an obligor
pursuant to all applicable Governmental Requirements (including,
without limitation, the Assignment of Claims Act of 1940, as
amended).
5.9 Intellectual Property. (a) Such Grantor (either itself
or through licensees) will (i) continue to use each material
Trademark on each and every trademark class of goods applicable
to its current line as reflected in its then-current catalogs,
brochures and price lists in order to maintain such Trademark in
full force free from any claim of abandonment for non-use, (ii)
maintain as in the past the quality of products and services
offered under such Trademark, (iii) use such Trademark with all
notices and legends required by applicable law or regulations,
and (iv) not (and not permit any licensee or sublicensee thereof
to) do any act or knowingly omit to do any act whereby such
Trademark may become invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees) will
not do any act, or omit to do any act, whereby any material
Patent may become forfeited, abandoned or dedicated to the
public.
(c) Such Grantor (either itself or through licensees)
will not (and will not permit any licensee or sublicensee thereof
to) do any act or knowingly omit to do any act whereby any
material portion of the Copyrights may become invalidated or
otherwise impaired. Such Grantor will not (either itself or
through licensees) do any act whereby any material portion of the
Copyrights may fall into the public domain.
(d) Such Grantor (either itself or through licensees) will
not do any act that knowingly uses any material Intellectual
Property to infringe the Intellectual Property rights of a third
party.
(e) Such Grantor will notify the Administrative Agent and
the other Guaranteed Parties immediately if it knows, or has
reason to know, that any application or registration relating to
any material Patent, Copyright or Trademark may become abandoned
or dedicated to the public, or of any adverse determination or
development (including, without limitation, 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, or the validity of, any
material Intellectual Property or such Grantor's right to
register the same or to own and maintain the same.
(f) Whenever such Grantor, either by itself or through any
agent, employee, licensee or designee, shall file an application
for any material Patent or material Trademark with the United
States Patent and Trademark Office or any material Copyright in
the U.S. Copyright Office or any similar office or agency in any
other country or any political subdivision thereof, 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 request of the Administrative Agent,
such Grantor shall execute and deliver, and have
13
recorded, any and all agreements, instruments,
documents, and papers as the Administrative Agent may reasonably
request to evidence the Administrative Agent's security interest
in any Copyright, Patent or Trademark and the goodwill and
General Intangibles of such Grantor relating thereto or
represented thereby.
(g) Such Grantor will take all reasonable and necessary
steps, including, without limitation, in any proceeding before
the United States Patent and Trademark Office, the U.S. Copyright
Office or any similar office or agency in any other country or
any political subdivision thereof, to maintain each registration
of the material Intellectual Property, including, without
limitation, filing of applications for renewal, affidavits of use
and affidavits of incontestability.
(h) In the event that any material Intellectual Property is
infringed, misappropriated or diluted by a third party, such
Grantor shall (i) take such actions as such Grantor shall
reasonably deem appropriate under the circumstances, or as
otherwise requested by the Administrative Agent, to protect such
Intellectual Property, and (ii) promptly notify the
Administrative Agent and the other Guaranteed Parties after it
learns thereof.
SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) The
Administrative Agent shall have the right to make test
verifications of the Receivables in any manner and through any
medium that it reasonably considers advisable upon prior written
notice and, unless an Event of Default shall exist or be
continuing, no more than once per calendar year, and each Grantor
shall furnish all such assistance and information as the
Administrative Agent may reasonably require in connection with
such test verifications. At any time while an Event of Default
shall have occurred and be continuing, upon the Administrative
Agent's request and at the expense of the relevant Grantor, such
Grantor shall cause independent public accountants or others
satisfactory to the Administrative Agent to furnish to the
Administrative Agent reports showing reconciliations, aging and
test verifications of, and trial balances for, the Receivables.
(b) The Administrative Agent hereby authorizes each Grantor
to collect such Grantor's Receivables, and the Administrative
Agent may curtail or terminate said authority at any time after
the occurrence and during the continuance of an Event of Default.
If required by the Administrative Agent at any time after the
occurrence and during the continuance of an Event of Default, any
payments of Receivables, when collected by any Grantor, (i) 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 if required,
in a Collateral Account maintained under the sole dominion and
control of the Administrative Agent, subject to withdrawal by the
Administrative Agent for the account of the Guaranteed Parties
only as provided in Section 6.5, and (ii) until so turned over,
shall be held by such Grantor in trust for the Administrative
Agent and the other Guaranteed Parties, segregated from other
funds of such Grantor. Each such deposit of Proceeds of
Receivables shall be accompanied by a report identifying in
reasonable detail the nature and source of the payments included
in the deposit.
(c) At the Administrative Agent's request, each Grantor
shall deliver to the Administrative Agent, and have recorded, all
original and other documents evidencing, and relating to, the
agreements and transactions which gave rise to the then existing
Receivables, including, without limitation, all original orders,
invoices and shipping receipts.
14
6.2 Communications with Obligors; Grantors Remain Liable.
(a) The Administrative Agent in its own name or in the name of
others may at any time after the occurrence and during the
continuance of an Event of Default communicate with obligors
under the Receivables to verify with them to the Administrative
Agent's reasonable satisfaction the existence, amount and terms
of any Receivables.
(b) Upon the request of the Administrative Agent at any
time after the occurrence and during the continuance of an Event
of Default, each Grantor shall notify obligors on the Receivables
that the Receivables have been assigned to the Administrative
Agent for the ratable benefit of the Guaranteed Parties and that
payments in respect thereof shall be made directly to the
Administrative Agent.
(c) Anything herein to the contrary notwithstanding, each
Grantor shall remain liable under each of the Receivables 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. No Guaranteed
Party shall have any obligation or liability under any Receivable
(or any agreement giving rise thereto) by reason of or arising
out of this Agreement or the receipt by the Administrative Agent
or any other Guaranteed Party of any payment relating thereto,
nor shall the Administrative Agent or any other Guaranteed Party
be obligated in any manner to perform any of the obligations of
any Grantor under or pursuant to any Receivable (or any agreement
giving rise thereto) 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 which may
have been assigned to it or to which it may be entitled at any
time or times.
6.3 Pledged Equity. (a) Unless an Event of Default shall
have occurred and be continuing, each Grantor shall be permitted
to receive all cash dividends, payments or other Proceeds paid in
respect of the Pledged Equity and all payments made in respect of
the Pledged Notes, to the extent permitted in the Credit
Agreement, and to exercise all voting and corporate rights with
respect to the Pledged Securities; provided, however, that no
vote shall be cast or corporate right exercised or other action
taken which, in the Required Lenders' reasonable judgment, would
impair the Collateral or which would be inconsistent with or
result in any violation of any provision of the Credit Agreement,
this Agreement or any other Financing Document.
(b) If an Event of Default shall occur and be continuing,
(i) the Administrative Agent shall have the right to receive any
and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Securities and make application thereof to
the Obligations in such order as the Administrative Agent may
determine, and (ii) any or all of the Pledged Securities shall be
registered in the name of the Administrative Agent or its
nominee, and the Administrative Agent or its nominee may
thereafter exercise (x) all voting, corporate and other rights
pertaining to such Pledged Securities at any meeting of
shareholders of the relevant Issuer or Issuers or otherwise and
(y) any and all rights of conversion, exchange and subscription
and any other rights, privileges or options pertaining to such
Pledged Securities as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its
discretion any and all of the Pledged Securities upon the merger,
consolidation, reorganization, recapitalization or other
fundamental change in the corporate structure of any Issuer, or
upon the exercise by any Grantor or the Administrative Agent of
any right, privilege or option pertaining to such Pledged
Securities, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Securities with any committee,
depositary, transfer agent, registrar or other designated agency
upon such terms and conditions as the Administrative Agent may
15
determine), all without liability except to account for property
actually received by it, but the Administrative Agent and the
other Guaranteed Parties 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.
(c) Each Grantor hereby authorizes and instructs each
Issuer of any Pledged Securities pledged by such Grantor
hereunder to (i) comply with any instruction received by it from
the Administrative Agent in writing that (x) states that an Event
of Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees
that each Issuer shall be fully protected in so complying, and
(ii) unless otherwise expressly permitted hereby, pay any
dividends or other payments with respect to the Pledged
Securities directly to the Administrative Agent.
6.4 Proceeds to be Turned Over To Administrative Agent. In
addition to the rights of the Administrative Agent and the other
Guaranteed Parties specified in Section 6.1 with respect to
payments of Receivables, if an Event of Default shall occur and
be continuing, all Proceeds received by any Grantor consisting of
cash, checks and other near-cash items shall be held by such
Grantor in trust for the Administrative Agent and the other
Guaranteed Parties segregated from other funds of such Grantor,
and shall, forthwith upon receipt by such Grantor, be turned over
to the Administrative Agent in the exact form received by such
Grantor (duly indorsed by such Grantor to the Administrative
Agent, if required). All Proceeds received by the Administrative
Agent hereunder shall be held by the Administrative Agent in a
Collateral Account maintained under its sole dominion and
control. All Proceeds while held by the Administrative Agent in a
Collateral Account (or by such Grantor in trust for the
Administrative Agent and the other Guaranteed Parties) shall
continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until
applied as provided in Section 6.5.
6.5 Application of Proceeds. At any time after the
occurrence and during the continuance of an Event of Default, at
the Administrative Agent's election, the Administrative Agent may
apply all or any part of Proceeds held in any Collateral Account
in payment of the Obligations in such order as the Administrative
Agent may elect, and any part of such funds which the
Administrative Agent elects not so to apply and deems not
required as collateral security for the Obligations shall be paid
over from time to time by the Administrative Agent to the Company
or to whomsoever may be lawfully entitled to receive the same.
Any balance of such Proceeds remaining after the Obligations
shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be
paid over to the Company or to whomsoever may be lawfully
entitled to receive the same.
6.6 Code and Other Remedies. If an Event of Default shall
occur and be continuing, the Administrative Agent, on behalf of
the Guaranteed Parties, may exercise, in addition to all other
rights and remedies granted to them in this Agreement and in any
other instrument or agreement securing, evidencing or relating to
the Obligations, all rights and remedies of a secured party under
the Code 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, including, without
limitation, notice of intent to accelerate or notice of
acceleration, (except 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 the Collateral, or any part thereof,
and/or may forthwith sell, lease, assign, give
16
option or options to purchase, or otherwise dispose of
and deliver the Collateral or any part thereof (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 other Guaranteed Party 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 or any other Guaranteed Party shall have the
right upon any such public sale or sales, and, to the extent
permitted by 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 in any Grantor, which right or
equity is hereby waived and released. Each Grantor further
agrees, at the Administrative Agent's request, to assemble the
Collateral and make it available to the Administrative Agent at
places which 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 6.6, after deducting all
reasonable costs and expenses of every kind incurred in
connection therewith or incidental to the care or safekeeping of
any of the Collateral or in any way relating to the Collateral or
the rights of the Administrative Agent and the other Guaranteed
Parties hereunder, including, without limitation, reasonable
attorneys' fees and disbursements, to the payment in whole or in
part of the Obligations, in such order as the Administrative
Agent may elect consistent with the terms of the Credit
Agreement, and only after such application and after the payment
by the Administrative Agent of any other amount required by any
provision of law, including, without limitation, Section
9-504(1)(c) of the Code, 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 Guaranteed 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.
6.7 Registration Rights. (a) If the Administrative Agent
shall determine to exercise its right to sell any or all of the
Pledged Equity pursuant to Section 6.6, and if in the opinion of
the Administrative Agent it is necessary or advisable to have the
Pledged Equity, or that portion thereof to be sold, registered
under the provisions of the Securities Act, the relevant Grantor
will cause, or if the Grantor does not control such Issuer use
its best efforts to cause, the Issuer thereof 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 or advisable to register
the Pledged Equity, 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 Equity, or
that portion thereof to be sold, and (iii) make all amendments
thereto and/or to the related prospectus which, in the opinion of
the Administrative Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission
applicable thereto. Each Grantor agrees to cause such Issuer to
comply with the provisions of the securities or "Blue Sky" laws
of any and all jurisdictions which 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)
which will satisfy 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 or all the Pledged
Equity, by reason of certain prohibitions contained in the
Securities Act and
17
applicable state securities laws or otherwise,
and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will 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 of the Pledged Equity 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 best 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 Equity
pursuant to this Section 6.7 valid and binding and in compliance
with any and all other applicable Governmental Requirements. Each
Grantor further agrees that a breach of any of the covenants
contained in this Section 6.7 will cause irreparable injury to
the Administrative Agent and the other Guaranteed Parties, that
the Administrative Agent and the other Guaranteed 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 6.7 shall be specifically enforceable against such
Grantor, and such Grantor hereby waives and agrees not to assert
any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has
occurred under the Credit Agreement.
6.8 Waiver; Deficiency. Each Grantor waives and agrees not
to assert any rights or privileges which it may acquire under
Section 9-112 of the Code. Each Grantor shall remain liable for
any deficiency if the proceeds of any sale or other disposition
of the Collateral are insufficient to pay its Obligations and the
fees and disbursements of any attorneys employed by the
Administrative Agent or any other Guaranteed Party to collect
such deficiency.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent's Appointment as Attorney-in-Fact
etc. (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 and all appropriate action and to
execute any and all documents and instruments which 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 or all of the following:
(i) in the name of such Grantor or its own name, or
otherwise, take possession of and indorse and collect any
checks, drafts, notes, acceptances or other instruments for
the payment of moneys due under any Receivable 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 and all such moneys due
under any Receivable or with respect to any other Collateral
whenever payable:
18
(ii) in the case of any Copyright, Patent or
Trademark, execute, deliver and have recorded, any and all
agreements, instruments, documents and papers as the
Administrative Agent may request to evidence the
Administrative Agent's security interest in such Copyright,
Patent or Trademark 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 repairs
or any insurance called for by the terms of this Agreement
and pay all or any part of the premiums therefor and the
costs thereof;
(iv) execute, in connection with any sale provided for
in Section 6.6 or 6.7, any indorsements, assignments or
other instruments of conveyance or transfer with respect to
the Collateral; and
(v)(l) direct any party liable for any payment under any
of the Collateral to make payment of any and all moneys due
or to become due thereunder directly to the Administrative
Agent or as the Administrative Agent shall direct; (2) ask
or demand for, collect, and receive payment of and receipt
for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any
Collateral; (3) sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection
with any of the Collateral; (4) commence and prosecute any
suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral
or any portion thereof and to enforce any other right in
respect of any Collateral; (5) defend any suit, action or
proceeding brought against such Grantor with respect to any
Collateral; (6) 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; (7) assign any Copyright, Patent or
Trademark (along with the goodwill of the business to which
any such Copyright, Patent or 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; and (8)
generally, sell, transfer, pledge and make any agreement
with respect to or otherwise deal with any of the
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 which the Administrative Agent
deems necessary to protect, preserve or realize upon the
Collateral and the Administrative Agent's security
interests therein and to effect the intent of this
Agreement, all as fully and effectively as such Grantor
might do.
Anything in this Section 7.1(a) to the contrary
notwithstanding, the Administrative Agent agrees that it will not
exercise any rights under the power of attorney provided for in
this Section 7.1(a) unless an Event of Default shall have
occurred and 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.
19
(c) The expenses of the Administrative Agent incurred in
connection with actions undertaken as provided in this Section
7.1, together with interest thereon at a rate per annum equal to
the rate per annum at which interest would then be payable under
the Credit Agreement on past due Tranche B Term Loans that are
Base Rate Loans, 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.
7.2 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, under
Section 9-207 of the Code or otherwise, shall be to deal with it
in the same manner as the Administrative Agent deals with similar
property for its own account. None of the Administrative Agent,
any other Guaranteed Party, nor any of their respective officers,
directors, employees or agents shall be liable for failure to
demand, collect or realize upon any of the 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 the Collateral or any part thereof. The
powers conferred on the Administrative Agent and the other
Guaranteed Parties hereunder are solely to protect the
Administrative Agent's and the other Guaranteed Parties'
interests in the Collateral and shall not impose any duty upon
the Administrative Agent or any other Guaranteed Party to
exercise any such powers. The Administrative Agent and the other
Guaranteed 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 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.
7.3 Execution of Financing Statements. Pursuant to Section
9-402 of the Code and any other applicable laws, each Grantor
authorizes the Administrative Agent to file or record financing
statements and other filing or recording documents or instruments
with respect to the Collateral without the signature of such
Grantor 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. 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.
7.4 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 Guaranteed
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 Guaranteed 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.
20
SECTION 8. MISCELLANEOUS
8.1 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 9.2 of the
Credit Agreement.
8.2 Notices. All notices, requests and demands to or upon
the Administrative Agent, any other Guaranteed Party, or any
Grantor hereunder shall be effected in the manner provided for in
Section 9.1 of the Credit Agreement; provided that any such
notice, request or demand to or upon any Guarantor shall be
addressed to such Guarantor at its notice address set forth on
Schedule 1 hereto.
8.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Administrative Agent nor any other Guaranteed Party
shall by any act (except by a written instrument pursuant to
Section 8.1 hereof), 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 Guaranteed 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 Guaranteed Party of any
right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the
Administrative Agent or such other Guaranteed 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.
8.4 Enforcement Expenses; Indemnification. (a) Each
Guarantor agrees to pay or reimburse the Administrative Agent and
each other Guaranteed Party for all its costs and expenses
incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any
rights under this Agreement and the other Financing Documents to
which such Guarantor is a party, including, without limitation,
the reasonable fees and disbursements of counsel (including the
allocated fees and expenses of in-house counsel) to the
Administrative Agent and each other Guaranteed Party.
(b) Each Guarantor agrees to pay, and to save the
Administrative Agent and the other Guaranteed Parties harmless
from, any and all liabilities with respect to, or resulting from
any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the
Administrative Agent and the other Guaranteed Parties harmless
from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to
the execution, delivery, enforcement, performance and
administration of this Agreement to the same extent the Company
would be required to do so pursuant to Section 9.4 of the Credit
Agreement.
21
(d) The agreements in this Section 8.4 shall survive
repayment of the Obligations and all other amounts payable under
the Credit Agreement and the other Financing Documents.
8.5 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 the other
Guaranteed Parties and their
successors and assigns; provided 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 and the Lenders.
8.6 Set-Off. In addition to any rights and remedies of the
Administrative Agent and the other Guaranteed Parties provided by
law, the Administrative Agent and each other Guaranteed Party
shall have the right, without prior notice to any Grantor, any
such notice being expressly waived by each Grantor to the extent
permitted by applicable law, upon any amount becoming due and
payable by any Grantor hereunder (whether at the stated maturity,
by acceleration or otherwise) to set off and appropriate and
apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency,
and any other credits, indebtedness or claims, in any currency,
in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such
Guaranteed Party or any branch or agency thereof to or for the
credit or the account of such Grantor. The Administrative Agent
and each other Guaranteed Party agrees promptly to notify the
relevant Grantor and (if applicable) the Administrative Agent
after any such setoff and application made by the Administrative
Agent or such other Guaranteed Party, provided that the failure
to give such notice shall not affect the validity of such setoff
and application.
8.7 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), and all of said
counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed
by all the parties shall be lodged with the Company and the
Administrative Agent.
8.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
8.9 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER
FINANCING DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING
BETWEEN THE ADMINISTRATIVE AGENT, THE OTHER GUARANTEED PARTIES,
THE GRANTORS AND THE OTHER RESPECTIVE PARTIES HERETO AND THERETO
AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS BETWEEN
SUCH PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
8.10 Governing Law; Submission to Jurisdiction; etc.
(a) Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be construed in
accordance with and be governed by the laws of the State of
22
New York (including Section 5-1401 of the New York General
Obligations Law, or any similar successor provision
thereto, but excluding all other conflict-of-laws rules)and
to the extent controlling, laws of the United States of
America.
(b) SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE OTHER
FINANCING DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH GRANTOR
HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH GRANTOR HEREBY IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING, BUT NOT LIMITED TO, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS.
(c) WAIVER OF JURY TRIAL & CONSEQUENTIAL DAMAGES. TO
THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, EACH OF THE
GRANTORS, THE ADMINISTRATIVE AGENT, AND THE OTHER
GUARANTEED PARTIES (I) IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY FINANCING DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN; (II) IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES; (III) CERTIFIES THAT NO PARTY
HERETO NOR ANY REPRESENTATIVE OR COUNSEL FOR ANY PARTY
HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED
THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER; AND (IV) ACKNOWLEDGES THAT
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER
FINANCING DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY BASED UPON, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS
SECTION.
(d) Designation of Process Agent. Each Grantor hereby
irrevocably designates CT Corporation System, with an
office on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, as the designee, appointee and process agent
of such Grantor to receive, for and on behalf of such
Grantor, service of process in such respective
jurisdictions in any legal action or proceeding with
respect to this Agreement or the other Financing Documents.
It is understood that a copy of such process served on such
agent will be promptly forwarded by mail to each Grantor at
its address set forth opposite its signature below, but the
failure of such Grantor to receive such copy shall not
affect in any way the service of such process. Each Grantor
further irrevocably consents to the service of process of
any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to such Grantor at its
said address, such service to become effective on the
earlier to occur of (i) actual receipt of such service of
process and (ii) 30 days after such mailing.
23
(e) Service of Process. Nothing herein shall affect
the right of the Administrative Agent or any other
Guaranteed Party to serve process in any other manner
permitted by law or to commence legal proceedings or
otherwise proceed against any Grantor in any other
jurisdiction.
8.11 Acknowledgments. Each Grantor hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other
Financing Documents;
(b) neither the Administrative Agent nor any other
Guaranteed Party has any fiduciary relationship with or
duty to any Grantor arising out of or in connection with
this Agreement or any of the other Financing Documents, and
the relationship between Administrative Agent and the other
Guaranteed Parties, on one hand, and the Grantors, on the
other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other
Financing Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Guaranteed
Parties or among the Grantors and the Guaranteed Parties.
8.12 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in
the interpretation hereof.
8.13 Additional Grantors. Each Subsidiary of the Company
that is required to become a party to this Agreement pursuant to
Section 5.1(i) of the Credit Agreement shall become a Grantor for
all purposes of this Agreement upon execution and delivery by
such Subsidiary of an Assumption Agreement in the form of Annex I
hereto.
8.14 Releases. (a) At such time as the Loans, the
Reimbursement Obligations and the other Obligations shall have
been paid in full, the Commitments have been terminated and no
Letters of Credit shall be outstanding, the Collateral shall be
released from the Liens created hereby, and this Agreement and
all obligations (other than those expressly stated to survive
such termination) of the Administrative Agent 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
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.
(b) If any of the Collateral shall be sold, transferred or
otherwise Disposed of by any Grantor in a transaction permitted
by the Credit Agreement, then the Administrative Agent, at the
request and sole expense of such Grantor, shall execute and
deliver to such Grantor all releases or other documents
reasonably necessary or desirable for the release of the Liens
created hereby on such Collateral. At the request and sole
expense of the Company, a Guarantor shall be released from its
obligations hereunder in the event that all the Equity of such
Guarantor shall be sold, transferred or otherwise disposed of in
a transaction permitted by the Credit Agreement.
24
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and
delivered as of the date first above written.
[Attach Formatted Signature Page]
25
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy
of the Guarantee and Collateral Agreement dated as of March 12,
1998, (the "Agreement"), made by the Grantors parties thereto for
the benefit of Chase Bank of Texas, National Association, as
Administrative Agent. The undersigned agrees for the benefit of
the Administrative Agent and the other Guaranteed Parties as
follows:
1. The undersigned will be bound by the terms of the
Agreement and will comply with such terms insofar as such terms
are applicable to the undersigned.
2. The undersigned will notify the Administrative
Agent promptly in writing of the occurrence of any of the events
described in Section 5.7(a) of the Agreement.
3. The terms of Sections 6.3(a) and 6.7 of the
Agreement shall apply to it, mutatis mutandis, with respect to
all actions that may be required of it pursuant to Section 6.3(a)
or 6.7 of the Agreement.
[___________________________________]
By:______________________________________
Title:
Address for Notices:
26
Annex 1 to
Guarantee and Collateral Agreement
__________________________________
ASSUMPTION AGREEMENT, dated as of ________________,
[199__] [200_], by _________________________________________, a
______________________ corporation (the "Additional Grantor"), in
favor of CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as
Administrative Agent (in such capacity, the "Administrative
Agent") for the banks and other financial institutions (the
"Lenders") parties to the Credit Agreement referred to below. All
capitalized terms not defined herein shall have the meaning
ascribed to them in such Credit Agreement.
W I T N E S S E T H:
WHEREAS, Purina ▇▇▇▇▇, Inc. (the "Company"), the
Lenders and the Administrative Agent have entered into a Credit
Agreement, dated as of March 12, 1998, (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the
Company and certain of its affiliates (other than the Additional
Grantor) have entered into the Guarantee and Collateral
Agreement, dated as of March 12, 1998 (as amended, supplemented
or otherwise modified from time to time, the "Guarantee and
Collateral Agreement") in favor of the Administrative Agent for
the ratable benefit of the Guaranteed Parties (as defined
therein);
WHEREAS, the Credit Agreement requires the Additional
Grantor to become a party to the Guarantee and Collateral
Agreement; and
WHEREAS, the Additional Grantor has agreed to execute
and deliver this Assumption Agreement in order to become a party
to the Guarantee and Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing
and delivering this Assumption Agreement, the Additional Grantor,
as provided in Section 8.15 of the Guarantee and Collateral
Agreement, hereby becomes a party to the Guarantee and Collateral
Agreement as a Grantor thereunder with the same force and effect
as if originally named therein as a Grantor and, without limiting
the generality of the foregoing, hereby expressly assumes all
obligations and liabilities of a Grantor thereunder. The
information set forth in Annex l-A hereto is hereby added to the
information set forth in Schedules_____________* to the Guarantee
and Collateral Agreement. The Additional Grantor hereby
represents and warrants that each of the representations and
warranties contained in Section 3 of the Guarantee and Collateral
Agreement is true and correct on and as the date hereof (after
giving effect to this Assumption Agreement) as if made on and as
of such date.
_____________________________
* Refer to each Schedule which needs to be supplemented.
2. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK (INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, OR ANY SIMILAR SUCCESSOR PROVISION THERETO, BUT
EXCLUDING ALL OTHER CONFLICT-OF-LAWS RULES)AND TO THE EXTENT
CONTROLLING, LAWS OF THE UNITED STATES OF AMERICA.
IN WITNESS WHEREOF, the undersigned has caused this
Assumption Agreement to be duly executed and delivered as of the
date first above written.
[ADDITIONAL GRANTOR]
By:______________________________________
Name:
Title:
ACKNOWLEDGMENT BY THE COMPANY.:
By execution of this Assumption Agreement in the space
provided below, the Company hereby acknowledges and agrees that
the Equity described on Annex I has been issued by the Additional
Grantor identified herein and is held by the Company and
constitutes "Pledged Equity" comprising part of the Pledged
Securities under the Guarantee and Collateral Agreement.
Dated:___________________________________
PURINA ▇▇▇▇▇, INC.
By:______________________________________
Name: ___________________________________
Title: __________________________________
ANNEX 1
-------
Notice Addresses of New Grantors to be added to Schedule 1 to
-------------------------------------------------------------
Guarantee and Collateral Agreement:
-----------------------------------
Description of Pledged Stock to be added to Schedule 2 to
---------------------------------------------------------
Guarantee and Collateral Agreement:
-----------------------------------
Pledgor:
Issuer Class of Stock Stock No. of Shares
------ -------------- ----- -------------
Certificate No.
---------------
Perfection Filings for the Grantors to be added to Schedule 3 to
----------------------------------------------------------------
Guarantee and Collateral Agreement:
-----------------------------------
Uniform Commercial Code Filings
-------------------------------
[List each office where a financing statement is to be filed]
Copyright, Patent and Trademark Filings
---------------------------------------
[List all filings]
Actions with respect to Pledged Stock
-------------------------------------
Location of Jurisdiction of Organization and Chief Executive
------------------------------------------------------------
Office to be added to Schedule 4 to Guarantee and Collateral
------------------------------------------------------------
Agreement:
----------
Grantor Jurisdiction of Chief Executive Office
------- --------------- ----------------------
Organization
------------
Locations of Inventory and Equipment to be added to Schedule 5 to
-----------------------------------------------------------------
Guarantee and Collateral Agreement:
-----------------------------------
Grantor Locations
------- ---------
Information regarding Intellectual Property to be added to
----------------------------------------------------------
Schedule 6 to Guarantee and Collateral Agreement:
-------------------------------------------------
COPYRIGHTS
Nature of Interest Author Copyright Issue Date Country
------------------ ------ --------- ------------------
(e.g., owner, licensee) of Issue
----------------------- --------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
COPYRIGHT LICENSES
PATENTS
Nature of Interest Registered Patent Issue Date Country of
------------------ ----------------- ---------- ----------
(e.g., owner, licensee) No. Issue
----------------------- --- -----
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
PATENT APPLICATIONS
Nature of Interest Serial No. Filing Date Country of
------------------ ---------- ----------- ----------
(e.g., owner, licensee) Issue
----------------------- -----
-----------------------------------------------------------------
-----------------------------------------------------------------
PATENT LICENSES
REGISTERED TRADEMARKS
Goods or
--------
Nature of Interest Registered Registration Int'l.Class Services Date Filed Country of
------------------ ---------- ------------ ----------- -------- ---------- ----------
(e.g., owner, Trademark No. Covered Covered Reg.
------------- --------- --- ------- ------- ----
licensee)
---------
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
TRADEMARK APPLICATIONS
Goods or
Nature of Interest Registered Registration Int'l. Class Services Date Filed Country of
------------------ ----------------------- ------------ -------- ---------- ----------
(e.g., owner Trademark No. Covered Covered Reg.
------------ --------- --- ------- ------- ----
licensee)
---------
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
TRADEMARK LICENSES