COLLATERAL AGREEMENT dated and effective as of September 20, 2006, among BPC ACQUISITION CORP., (which on the Closing Date shall be merged with and into BPC Holding Corporation, with BPC Holding Corporation surviving such merger as the issuer, as...
dated
and
effective as of
September
20, 2006,
among
BPC
ACQUISITION CORP.,
(which
on
the Closing Date shall be merged with and into
BPC
Holding Corporation,
with
BPC
Holding Corporation surviving such merger as the issuer,
as
Issuer
each
Subsidiary of the Issuer
identified
herein,
and
XXXXX
FARGO BANK, N.A.,
as
Collateral Agent
-1-
THIS
COLLATERAL AGREEMENT IS SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT
OF EVEN DATE HEREWITH AMONG XXXXX PLASTICS GROUP, INC., THE ISSUER, CERTAIN
OF
ITS SUBSIDIARIES, CREDIT SUISSE, CAYMAN ISLANDS BRANCH, AS FIRST LIEN AGENT,
AND
XXXXX FARGO BANK, N.A., AS TRUSTEE, AS SET FORTH MORE FULLY IN SECTION 7.18
HEREOF. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY
INTEREST GRANTED TO THE COLLATERAL AGENT, FOR THE BENEFIT OF THE SECURED
PARTIES, PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY
BY
THE COLLATERAL AGENT AND THE OTHER SECURED PARTIES HEREUNDER ARE SUBJECT TO
THE
PROVISIONS OF THE INTERCREDITOR AGREEMENT.
-2-
TABLE
OF
CONTENTS
|
ARTICLE
I
|
DEFINITIONS
|
2
|
|
Section
1.01.
|
Indenture
|
2
|
|
Section
1.02.
|
Other
Defined Terms
|
2
|
|
ARTICLE
II
|
[RESERVED]
|
8
|
|
ARTICLE
III
|
PLEDGE
OF SECURITIES
|
8
|
|
Section
3.01.
|
Pledge
|
8
|
|
Section
3.02.
|
Delivery
of the Pledged Collateral
|
8
|
|
Section
3.03.
|
Representations,
Warranties and Covenants
|
9
|
|
Section
3.04.
|
Registration
in Nominee Name; Denominations
|
11
|
|
Section
3.05.
|
Voting
Rights; Dividends and Interest, Etc.
|
11
|
|
ARTICLE
IV
|
SECURITY
INTERESTS IN OTHER PERSONAL PROPERTY
|
13
|
|
Section
4.01.
|
Security
Interest
|
13
|
|
Section
4.02.
|
Representations
and Warranties
|
15
|
|
Section
4.03.
|
Covenants
|
18
|
|
Section
4.04.
|
Other
Actions
|
21
|
|
Section
4.05.
|
Covenants
Regarding Patent, Trademark and Copyright Collateral
|
22
|
|
ARTICLE
V
|
REMEDIES
|
24
|
|
Section
5.01.
|
Remedies
Upon Default
|
24
|
|
Section
5.02.
|
Application
of Proceeds
|
26
|
|
Section
5.03.
|
Securities
Act, Etc.
|
27
|
|
ARTICLE
VI
|
OTHER
SECOND-LIEN OBLIGATIONS
|
27
|
|
Section
6.01.
|
Other
Second-Lien Obligations
|
27
|
|
ARTICLE
VII
|
MISCELLANEOUS
|
28
|
|
Section
7.01.
|
Notices
|
28
|
|
Section
7.02.
|
Security
Interest Absolute
|
28
|
|
Section
7.03.
|
Limitation
By Law
|
28
|
|
Section
7.04.
|
Binding
Effect; Several Agreement
|
29
|
|
Section
7.05.
|
Successors
and Assigns
|
29
|
|
Section
7.06.
|
Collateral
Agent’s Fees and Expenses; Indemnification
|
29
|
|
Section
7.07.
|
Collateral
Agent Appointed Attorney-in-Fact
|
30
|
|
Section
7.08.
|
GOVERNING
LAW
|
31
|
|
Section
7.09.
|
Waivers;
Amendment
|
31
|
|
Section
7.10.
|
WAIVER
OF JURY TRIAL
|
31
|
|
Section
7.11.
|
Severability
|
32
|
|
Section
7.12.
|
Counterparts
|
32
|
|
Section
7.13.
|
Headings
|
32
|
|
Section
7.14.
|
Jurisdiction;
Consent to Service of Process
|
32
|
|
Section
7.15.
|
Termination
or Release
|
33
|
|
Section
7.16.
|
Additional
Subsidiaries
|
33
|
|
Section
7.17.
|
Right
of Set-off
|
33
|
|
Section
7.18.
|
Subject
to Intercreditor Agreement
|
33
|
-i-
|
Section
7.19.
|
Senior
Collateral Documents
|
33
|
Schedules
Schedule
I Subsidiary
Parties
Schedule
II Debt
Securities
Schedule
III Intellectual
Property
Schedule
IV Filing
Offices
Exhibits
Exhibit
I Form
of
Supplement to the Collateral Agreement
Exhibit
II Form
of
Perfection Certificate
Exhibit
III Form
of
Additional Secured Creditor Consent
-ii-
COLLATERAL
AGREEMENT dated and effective as of September 20, 2006 (this “Agreement”),
among
BPC ACQUISITION CORP., a Delaware corporation, which will merge (the
“Merger”)
with
and into BPC Holding Corporation, a Delaware corporation, with BPC Holding
Corporation surviving such merger as the issuer (the “Issuer”),
upon
consummation of the Merger, each subsidiary of the Issuer identified herein
as a
party (each, a “Subsidiary
Party”)
and
XXXXX FARGO BANK, N.A., as collateral agent (in such capacity, the “Collateral
Agent”)
for
the Secured Parties (as defined below).
WHEREAS,
pursuant to the terms, conditions and provisions of (a) the Indenture dated
as
of the date hereof (as amended, restated, supplemented or otherwise modified
from time to time, the “Indenture”),
among
the Issuer, the Subsidiary Parties and Xxxxx Fargo Bank, N.A., as Trustee (the
“Trustee”),
and
(b) the Purchase Agreement dated as of September 15, 2006 (as amended, restated,
supplemented, waived or otherwise modified from time to time, the “Purchase
Agreement”),
among
BPC Acquisition Corp., the several parties named in Schedule I thereto (the
“Initial
Purchasers”)
and,
upon the consummation of the merger on the date hereof, BPC Holding Corporation
and the Subsidiary Parties thereto, the Issuer is issuing $525,000,000 aggregate
principal amount of its 87/8% Second
Priority Senior Secured Fixed Rate Notes due 2014 (the “Fixed
Rate Notes”)
and
$225,000,000 aggregate principal amount of its Second Priority Senior Secured
Floating Rate Notes due 2014 (the “Floating
Rate Notes”
and,
together with (i) the Fixed Rate Notes, (ii) any and all additional Second
Priority Senior Secured Floating Rate Notes and 87/8% Second
Priority Senior Secured Fixed Rate Notes, in each case, issued pursuant to
the
Indenture and (iii) any and all exchange notes issued pursuant to the Indenture,
collectively, the “Notes”),
which
will be guaranteed on a second priority senior secured basis by each of the
Subsidiary Parties;
WHEREAS,
pursuant to the Credit Agreement dated as of the date hereof (as amended,
restated, supplemented, waived or otherwise modified from time to time, the
“Credit
Agreement”),
among
Xxxxx Plastics Group, Inc., a Delaware corporation (“Holdings”),
BPC
Acquisition Corp., which on the Closing Date (as defined in the Credit
Agreement) will merge with and into BPC Holding Corporation (which will change
its name to Xxxxx Plastics Holding Corporation), with Xxxxx Plastics Holding
Corporation surviving such merger as the borrower, each subsidiary of Xxxxx
Plastics Holding Corporation, the lenders party thereto from time to time,
Credit
Suisse, Cayman Islands Branch, as administrative agent and collateral agent
for
the lenders (the “First
Lien Agent”),
and
the other agents party thereto, the Pledgors (as defined below) have granted
to
the First Lien Agent (as defined below) a first-priority lien and security
interest in the Collateral (as defined below);
WHEREAS,
the Issuer, the Subsidiary Parties, the Collateral Agent and the First Lien
Agent have entered into an Intercreditor Agreement dated as of the date hereof
(as amended, restated, supplemented or otherwise modified from time to time,
the
“Intercreditor
Agreement”),
pursuant to which the lien upon and security interest in the Collateral granted
by this Agreement are and shall be subordinated in all respects to the lien
upon
and security interest in the Collateral granted pursuant to, and subject to
the
terms and conditions of, the Senior Lender Documents (as defined
below);
-1-
WHEREAS,
each Pledgor is executing and delivering this Agreement pursuant to the terms
of
the Indenture to induce the Trustee to enter into the Indenture and pursuant
to
the terms of the Purchase Agreement to induce the Initial Purchasers to purchase
the Notes;
WHEREAS,
the Subsidiary Parties are affiliates of the Issuer, will derive substantial
benefits from the extension of credit to the Issuer pursuant to the Indenture
and are willing to execute and deliver this Agreement in order to induce the
Trustee to enter into the Indenture and to induce the Initial Purchasers to
purchase the Notes; and
WHEREAS,
each Pledgor has duly authorized the execution, delivery and performance of
this
Agreement.
NOW,
THEREFORE, for and in consideration of the premises, and of the mutual covenants
herein contained, and in order to induce the Trustee to enter into the Indenture
and the Initial Purchasers to purchase the Notes, each Pledgor and the
Collateral Agent, on behalf of itself and each Secured Party (and each of their
respective successors or assigns), hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Indenture
(a) Capitalized
terms used in this Agreement and not otherwise defined herein have the
respective meanings assigned thereto in the Indenture. All terms defined in
the
New York UCC (as defined herein) and not defined in this Agreement have the
meanings specified therein. The term “instrument” shall have the meaning
specified in Article 9 of the New York UCC. If the First-Lien Termination Date
(as defined below) has occurred, a reference in this Agreement to the First
Lien
Agent shall, unless the context requires otherwise, be construed as a reference
to the Collateral Agent and this agreement shall be interpreted
accordingly.
(b) The
rules
of construction specified in Section 1.04 of the Indenture also apply to this
Agreement.
Section
1.02. Other
Defined Terms.
As used in this Agreement, the following terms have the meanings specified
below:
“Account
Debtor”
means
any person who is or who may become obligated to any Pledgor under, with respect
to or on account of an Account, Chattel Paper, General Intangibles, Instruments
or Investment Property.
“Additional
Secured Debt Documents”
means
any document or instrument executed and delivered with respect to any Other
Second-Lien Obligations.
-2-
“Additional
Secured Party Consent”
shall
mean a completed additional secured party consent in the form of Exhibit III
hereto.
“Article
9 Collateral”
has
the
meaning assigned to such term in Section 4.01.
“Authorized
Representative”
with
respect to any Other Second-Lien Obligations means the agent or trustee under
the agreement pursuant to which such Other Second-Lien Obligations are issued
or
incurred.
“Collateral”
means
Article 9 Collateral and Pledged Collateral.
“Collateral
Agent”
means
the party named as such in this Agreement until a successor replaces it and,
thereafter, means the successor.
“Copyright
License”
means
any written agreement, now or hereafter in effect, granting any right to any
Pledgor under any Copyright now or hereafter owned by any third party, and
all
rights of any Pledgor under any such agreement (including, without limitation,
any such rights that such Pledgor has the right to license).
“Copyright
Security Agreement”
means
a
security agreement in the form hereof or a short form hereof, in each case,
which form shall be reasonably acceptable to the Collateral Agent.
“Copyrights”
means
all of the following now owned or hereafter acquired by any Pledgor: (a) all
copyright rights in any work subject to the copyright laws of the United States
or any other country, whether as author, assignee, transferee or otherwise,
(b)
all registrations and applications for registration of any such copyright in
the
United States or any other country, including registrations, supplemental
registrations and pending applications for registration in the United States
Copyright Office and the right to obtain all renewals thereof, including those
listed on Schedule
III,
(c) all
claims for, and rights to xxx for, past or future infringements of any of the
foregoing, and (d) all income, royalties, damages and payments now or hereafter
due and payable with respect to any of the foregoing, including damages and
payments for past or future infringement thereof.
“Credit
Agreement”
has
the
meaning assigned to such term in the recitals of this Agreement.
“Discharge
of Senior Lender Claims”
has
the
meaning assigned to such term in the Intercreditor Agreement.
“Federal
Securities Laws”
has
the
meaning assigned to such term in Section 5.03.
“First
Lien Agent”
has
the
meaning assigned to such term in the Intercreditor Agreement.
-3-
“First-Lien
Termination Date”
means,
subject to Section 5.7 of the Intercreditor Agreement, the date on which the
Discharge of Senior Lender Claims occurs; provided
that if,
at any time after the First-Lien Termination Date, the Discharge of Senior
Lender Claims is deemed not to have occurred pursuant to Section 5.7 of the
Intercreditor Agreement, the First-Lien Termination Date shall automatically
be
deemed not to have occurred for all purposes of this Agreement (other than
with
respect to any actions taken prior to the date of incurrence and designation
of
any new Senior Lender Claims as a result of the occurrence of such first
Discharge of Senior Lender Claims).
“General
Intangibles”
means
all “General Intangibles” as defined in the New York UCC, including all choses
in action and causes of action and all other intangible personal property of
any
Pledgor of every kind and nature (other than Accounts) now owned or hereafter
acquired by any Pledgor, including corporate or other business records,
indemnification claims, contract rights (including rights under leases, whether
entered into as lessor or lessee, Swap Agreements and other agreements),
Intellectual Property, goodwill, registrations, franchises, tax refund claims
and any guarantee, claim, security interest or other security held by or granted
to any Pledgor to secure payment by an Account Debtor of any of the
Accounts.
“Governmental
Authority”
shall
mean any federal, state, local or foreign court or governmental agency,
authority, instrumentality or regulatory or legislative body.
“Holder”
has
the
meaning assigned to such term in the Indenture.
“Indenture”
has
the
meaning assigned to such term in the recitals of this Agreement.
“Indenture
Documents”
means
(a) the Indenture, the Notes, the Security Documents and this Agreement and
(b)
any other related documents or instruments executed and delivered pursuant
to
the Indenture or any Security Document, in each case, as such agreements may
be
amended, restated, supplemented or otherwise modified from time to
time.
“Indenture
Parties”
means
the Issuer and the Subsidiary Parties.
“Initial
Purchasers”
has
the
meaning assigned to such term in the recitals of this Agreement.
“Intellectual
Property”
means
all intellectual property of every kind and nature now owned or hereafter
acquired by any Pledgor, including, inventions, designs, Patents, Copyrights,
Trademarks, Patent Licenses, Copyright Licenses, Trademark Licenses, trade
secrets, domain names, confidential or proprietary technical and business
information, know-how, show-how or other data or information and all related
documentation.
“Intellectual
Property Security Agreements”
means
the Copyright Security Agreement, Patent Security Agreement and Trademark
Security Agreement.
-4-
“Intercreditor
Agreement”
has
the
meaning assigned to such term in the recitals of this Agreement.
“IP
Agreements”
means
all material Copyright Licenses, Patent Licenses, Trademark Licenses, and all
other agreements, permits, consents, orders and franchises relating to the
license, development, use or disclosure of any material Intellectual Property
to
which a Pledgor, now or hereafter, is a party or a beneficiary, including,
without limitation, the agreements set forth on Schedule
III
hereto.
“Issuer”
has
the
meaning assigned to such term in the preliminary statement of this
Agreement.
“Material
Adverse Effect”
has
the
meaning assigned to such term in the Credit Agreement.
“New
York UCC”
means
the Uniform Commercial Code as from time to time in effect in the State of
New
York.
“Notes”
has
the
meaning assigned to such term in the recitals of this Agreement.
“Obligations”
shall
mean (i) all obligations, liabilities and indebtedness (including, without
limitation, principal, premium, interest (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency, reorganization or similar
proceeding of any Pledgor at the rate provided for in the respective
documentation, whether or not a claim for post-petition interest is allowed
in
any such proceeding)) owing to the Collateral Agent, the Trustee and the holders
under the Notes, the Indenture and the Security Documents and the due
performance and compliance by the Pledgors with all of the terms, conditions
and
agreements contained in the Notes, the Indenture and in Security Documents;
(ii)
any and all sums advanced by the Collateral Agent in accordance with the
Indenture or any of the Security Documents in order to preserve the Collateral
or preserve its security interest in the Collateral; (iii) in the event of
any
proceeding for the collection or enforcement of any indebtedness, obligations,
or liabilities of the Pledgors referred to in clause (i) above, the reasonable
expenses of retaking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, or of any exercise by the
Collateral Agent of its rights hereunder, together with reasonable attorneys’
fees and court costs; and (iv) if any Other Second-Lien Obligations are
incurred, all obligations, liabilities and indebtedness (including, without
limitation, principal, premium, interest (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency, reorganization or similar
proceeding of any Pledgor at the rate provided for in the respective
documentation, whether or not a claim for post-petition interest is allowed
in
any such proceeding)) owing to any holder of Other Second-Lien Obligations
(that
has been designated as Obligations pursuant to Section 6.01)
under
any Additional Secured Debt Documents.
-5-
“Patent
License”
means
any written agreement, now or hereafter in effect, granting to any Pledgor
any
right to make, use or sell any invention covered by a Patent, now or hereafter
owned by any third party (including, without limitation, any such rights that
such Pledgor has the right to license).
“Patent
Security Agreement”
means
a
security agreement in the form hereof or a short form hereof, in each case,
which form shall be reasonably acceptable to the Collateral Agent.
“Patents”
means
all of the following now owned or hereafter acquired by any Pledgor: (a) all
letters patent of the United States or the equivalent thereof in any other
country or jurisdiction, including those listed on Schedule
III,
and all
applications for letters patent of the United States or the equivalent thereof
in any other country or jurisdiction, including those listed on Schedule
III,
(b) all
provisionals, reissues, extensions, continuations, divisions,
continuations-in-part, reexaminations or revisions thereof, and the inventions
disclosed or claimed therein, including the right to make, use, import and/or
sell the inventions disclosed or claimed therein, (c) all claims for, and rights
to xxx for, past or future infringements of any of the foregoing and (d) all
income, royalties, damages and payments now or hereafter due and payable with
respect to any of the foregoing, including damages and payments for past or
future infringement thereof.
“Perfection
Certificate”
means
the Perfection Certificate with respect to the Pledgors substantially in the
form of Exhibit
II,
completed and supplemented with the schedules and attachments contemplated
thereby, and duly executed by a Financial Officer of the Issuer and the chief
legal officer of the Issuer.
“Pledged
Collateral”
has
the
meaning assigned to such term in Section 3.01.
“Pledged
Debt Securities”
has
the
meaning assigned to such term in Section 3.01.
“Pledged
Securities”
means
any promissory notes or other certificated securities now or hereafter included
in the Pledged Collateral, including all certificates, instruments or other
documents representing or evidencing any Pledged Collateral.
“Pledgor”
shall
mean the Issuer and each Subsidiary Party.
“Purchase
Agreement”
has
the
meaning assigned to such term in the recitals of this Agreement.
“Secured
Parties”
means
(a) the Collateral Agent, (b) each Holder, (c) the beneficiaries of each
indemnification obligation undertaken by any Indenture Party under any Indenture
Document, (d) the Trustee, (e) holders of Other Second-Lien Obligations and
their Authorized Representative; provided
that
such holders and their Authorized Representative comply with Section
6.01
hereof
and such Authorized Representative executes an Additional Secured Party Consent,
and (f) the successors and permitted assigns of each of the
foregoing.
-6-
“Security
Documents”
means
this Agreement, any agreement pursuant to which assets are added to the
Collateral or otherwise pledged to secure the Obligations and any other
instruments or documents entered into and delivered in connection with any
of
the foregoing, as such agreements, instruments or documents may from time to
time be amended, restated, supplemented or otherwise modified from time to
time.
“Senior
Collateral Documents”
has
the
meaning assigned to such term in the Intercreditor Agreement.
“Senior
Lender Claims”
has
the
meaning assigned to such term in the Intercreditor Agreement.
“Senior
Lender Documents”
has
the
meaning assigned to such term in the Intercreditor Agreement.
“Senior
Lenders”
has
the
meaning assigned to such term in the Intercreditor Agreement.
“Subsidiary
Party”
has
the
meaning assigned to such term in the preliminary statement of this Agreement,
and any Subsidiary that becomes a party hereto pursuant to Section
7.16.
“Trademark
License”
means
any written agreement, now or hereafter in effect, granting to any Pledgor
any
right to use any Trademark now or hereafter owned by any third party (including,
without limitation, any such rights that such Pledgor has the right to
license).
“Trademark
Security Agreement”
means
a
security agreement in the form hereof or a short form hereof, in each case,
which form shall be reasonably acceptable to the Collateral Agent.
“Trademarks”
means
all of the following now owned or hereafter acquired by any Pledgor: (a) all
trademarks, service marks, corporate names, company names, business names,
fictitious business names, trade styles, trade dress, logos, other source or
business identifiers, designs and general intangibles of like nature, now
existing or hereafter adopted or acquired, all registrations thereof (if any),
and all registration and recording applications filed in connection therewith,
including registrations and registration applications in the United States
Patent and Trademark Office or any similar offices in any State of the United
States or any other country or any political subdivision thereof (except for
“intent-to-use” applications for trademark or service xxxx registrations filed
pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, unless and until
an Amendment to Allege Use or a Statement of Use under Sections 1(c) and 1(d)
of
Xxxxxx Act has been filed, to the extent, if any, that any assignment of an
“intent-to-use” application prior to such filing would violate the Xxxxxx Act),
and all renewals thereof, including those listed on Schedule
III,
(b) all
goodwill associated therewith or symbolized thereby, (c) all claims for, and
rights to xxx for, past or future infringements of any of the foregoing and
(d)
all income, royalties, damages and payments now or hereafter
-7-
“Transactions”
has
the
meaning assigned to such term in the Credit Agreement.
ARTICLE
II
[RESERVED]
ARTICLE
III
PLEDGE
OF
SECURITIES
Section
3.01. Pledge.
As
security for the payment or performance when due (whether at the stated
maturity, by acceleration or otherwise), as the case may be, in full of its
Obligations, each Pledgor hereby assigns and pledges to the Collateral Agent,
its successors and permitted assigns, for the benefit of the Secured Parties,
and hereby grants to the Collateral Agent, its successors and permitted assigns,
for the benefit of the Secured Parties, a security interest in all of such
Pledgor’s right, title and interest in, to and under (a) (i) the debt
obligations listed opposite the name of such Pledgor on Schedule
II,
(ii)
any debt securities in the future issued to such Pledgor having, in the case
of
each instance of debt securities, an aggregate principal amount in excess of
$3.0 million, and (iii) the certificates, promissory notes and any other
instruments, if any, evidencing such debt securities (the “Pledged
Debt Securities”);
(b)
subject to Section 3.05 hereof, all payments of principal or interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of, in exchange for or upon
the
conversion of, and all other proceeds received in respect of, the property
referred to in clause (a) above; (c) subject to Section 3.05 hereof, all rights
and privileges of such Pledgor with respect to the securities and other property
referred to in clauses (a) and (b) above; and (d) all proceeds of any of the
foregoing (the items referred to in clauses (a) through (d) above being
collectively referred to as the “Pledged
Collateral”).
TO
HAVE
AND TO HOLD, to the extent consistent with the terms of the Intercreditor
Agreement, the Pledged Collateral, together with all right, title, interest,
powers, privileges and preferences pertaining or incidental thereto, unto the
Collateral Agent, its successors and permitted assigns, for the benefit of
the
Secured Parties, forever; subject,
however,
to the
terms, covenants and conditions hereinafter set forth.
Section
3.02. Delivery
of the Pledged Collateral
(a) Each
Pledgor agrees promptly to deliver or cause to be delivered to the First Lien
Agent (or, if the First-Lien Termination Date has occurred, the Collateral
Agent), for the benefit of the Secured Parties, any and all Pledged Securities
to the extent such Pledged Securities, in the case of promissory notes or other
instruments evidencing Indebtedness, are required to be delivered pursuant
to
paragraph (b) of this Section 3.02.
-8-
(b) Each
Pledgor will cause any Indebtedness for borrowed money having an aggregate
principal amount in excess of $3.0 million (other than (i) intercompany current
liabilities incurred in the ordinary course of business in connection with
the
cash management operations of the Issuer and its Subsidiaries or (ii) to the
extent that a pledge of such promissory note or instrument would violate
applicable law) owed to such Pledgor by any person to be evidenced by a duly
executed promissory note that is pledged and delivered to the First Lien Agent
(or, if the First Lien Termination Date has occurred, the Collateral Agent),
for
the benefit of the Secured Parties, pursuant to the terms hereof. To the extent
any such promissory note is a demand note, each Pledgor party thereto agrees,
if
requested by the First Lien Agent (or, if the First Lien Termination Date has
occurred, the Collateral Agent), to immediately demand payment thereunder upon
an Event of Default specified under Section 6.01(a), (b), (e), (f) or (g) of
the
Indenture unless such demand would not be commercially reasonable or would
otherwise expose Pledgor to liability to the maker as determined by the
applicable Pledgor.
(c) Upon
delivery to the First Lien Agent (or, if the First Lien Termination Date has
occurred, the Collateral Agent), (i) any Pledged Securities required to be
delivered pursuant to the foregoing paragraphs (a) and (b) of this Section
3.02
shall be accompanied by note powers, duly executed in blank or other instruments
of transfer reasonably satisfactory to the First Lien Agent (or, if the First
Lien Termination Date has occurred, the Collateral Agent) and by such other
instruments and documents as the First Lien Agent (or, if the First Lien
Termination Date has occurred, the Collateral Agent) may reasonably request
and
(ii) all other property comprising part of the Pledged Collateral delivered
pursuant to the terms of this Agreement shall be accompanied to the extent
necessary to perfect the security interest in or allow realization on the
Pledged Collateral by proper instruments of assignment duly executed by the
applicable Pledgor and such other instruments or documents (including issuer
acknowledgments in respect of uncertificated securities) as the Collateral
Agent
may reasonably request. Each delivery of Pledged Securities shall be accompanied
by a schedule describing the securities, which schedule shall be attached hereto
as Schedule
II
(or a
supplement to Schedule
II,
as
applicable) and made a part hereof; provided
that
failure to attach any such schedule hereto shall not affect the validity of
such
pledge of such Pledged Securities. Each schedule so delivered shall supplement
any prior schedules so delivered.
Section
3.03. Representations,
Warranties and Covenants.
The Pledgors, jointly and severally, represent, warrant and covenant to
and with the Collateral Agent, for the benefit of the Secured Parties,
that:
(a) Schedule
II
includes
all debt securities and promissory notes or instruments evidencing Indebtedness
required to be delivered pursuant to Section 3.02;
(b) the
Pledged Securities (solely with respect to Pledged Debt Securities issued by
a
person that is not a Subsidiary of the Issuer or an Affiliate of any such
Subsidiary, to the best of each Pledgor’s knowledge) have been duly and validly
authorized and issued by the issuer thereof and solely with respect to Pledged
Debt Securities issued by a person that is not a Subsidiary of the Issuer or
an
Affiliate of any such Subsidiary, to the best of each Pledgor’s knowledge) are
legal, valid and binding obligations of the
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issuers
thereof, 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 at law or in equity) and an implied covenant of
good
faith and fair dealing;
(c) except
for the security interests granted hereunder, each Pledgor (i) is and, subject
to any transfers made in compliance with the Indenture, will continue to be
the
direct owner, beneficially and of record, of the Pledged Securities indicated
on
Schedule
II
as owned
by such Pledgor, (ii) holds the same free and clear of all Liens, other than
Permitted Liens, (iii) will make no assignment, pledge, hypothecation or
transfer of, or create or permit to exist any security interest in or other
Lien
on, the Pledged Collateral, other than pursuant to a transaction permitted
by
the Indenture and other than Permitted Liens and (iv) subject to the rights
of
such Pledgor under the Indenture Documents to dispose of Pledged Collateral,
will use commercially reasonable efforts to defend its title or interest hereto
or therein against any and all Liens (other than Permitted Liens), however
arising, of all persons;
(d) [Intentionally
Omitted.];
(e) each
Pledgor has the power and authority to pledge the Pledged Collateral pledged
by
it hereunder in the manner hereby done or contemplated;
(f) other
than as set forth in the Indenture or this Agreement or the schedules thereto
or
hereto, no consent or approval of any Governmental Authority, any securities
exchange or any other person was or is necessary to the validity of the pledge
effected hereby or the transfer of the Pledged Securities upon a foreclosure
thereof (other than compliance with any securities law applicable to the
transfer of securities), in each case other than such as have been obtained
and
are in full force and effect;
(g) by
virtue
of the execution and delivery by the Pledgors of this Agreement, when any
Pledged Securities are delivered to the First Lien Agent or the Collateral
Agent, for the benefit of the Secured Parties, in accordance with this Agreement
and a financing statement covering such Pledged Securities is filed in the
appropriate filing office, the Collateral Agent will obtain, for the benefit
of
the Secured Parties, a legal, valid and perfected lien upon and security
interest in such Pledged Securities under the New York UCC, subject only to
Permitted Liens permitted under the Indenture, as security for the payment
and
performance of the Obligations; and
(h) each
Pledgor that is an issuer of the Pledged Collateral confirms that it has
received notice of the security interest granted hereunder and consents to
such
security interest and agrees to transfer record ownership of the Pledged
Securities issued by it in connection with any request by the Collateral
Agent.
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Section
3.04. Registration
in Nominee Name; Denominations.
The First Lien Agent (or, if the First-Lien Termination Date has occurred,
the Collateral Agent), on behalf of the Secured Parties, shall have the right
(in its sole and absolute discretion) to hold the Pledged Securities in the
name
of the applicable Pledgor, endorsed or assigned in blank or in favor of the
First Lien Agent (or, if the First-Lien Termination Date has occurred, the
Collateral Agent) or, if an Event of Default shall have occurred and be
continuing, in its own name as pledgee or the name of its nominee (as pledgee
or
as sub-agent). Each Pledgor will promptly give to the First Lien Agent (or,
if
the First-Lien Termination Date has occurred, the Collateral Agent) copies
of
any notices or other communications received by it with respect to Pledged
Securities registered in the name of such Pledgor. If an Event of Default shall
have occurred and be continuing, the First Lien Agent (or, if the First-Lien
Termination Date has occurred, the Collateral Agent) shall have the right to
exchange the certificates representing Pledged Securities for certificates
of
smaller or larger denominations for any purpose consistent with this Agreement.
Each Pledgor shall use its commercially reasonable efforts to cause any
Indenture Party that is not a party to this Agreement to comply with a request
by the First Lien Agent (or, if the First-Lien Termination Date has occurred,
the Collateral Agent), pursuant to this Section 3.04, to exchange certificates
representing Pledged Securities of such Indenture Party for certificates of
smaller or larger denominations.
Section
3.05. Voting
Rights; Dividends and Interest, Etc.
(a) Unless
and until an Event of Default shall have occurred and be continuing and the
Collateral Agent shall have given notice to the relevant Pledgors of the
Collateral Agent’s intention to exercise its rights hereunder:
(i) Each
Pledgor shall be entitled to exercise any and all voting and/or other consensual
rights and powers inuring to an owner of Pledged Collateral or any part thereof
for any purpose consistent with the terms of this Agreement, the Indenture
and
the other Indenture Documents; provided,
that,
except as expressly permitted under the Indenture, such rights and powers shall
not be exercised in any manner that could materially and adversely affect the
rights inuring to a holder of any Pledged Collateral, the rights and remedies
of
any of the Collateral Agent or the other Secured Parties under this Agreement,
the Indenture or any other Indenture Document or the ability of the Secured
Parties to exercise the same.
(ii) The
Collateral Agent shall promptly execute and deliver to each Pledgor, or cause
to
be executed and delivered to such Pledgor, all such proxies, powers of attorney
and other instruments as such Pledgor may reasonably request for the purpose
of
enabling such Pledgor to exercise the voting and/or consensual rights and powers
it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each
Pledgor shall be entitled to receive and retain any and all dividends, interest,
principal and other distributions paid on or distributed in respect of the
Pledged Collateral to the extent and only to the extent that such dividends,
interest, principal and other distributions are permitted by, and otherwise
paid
or distributed in accordance with, the terms and conditions of the
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Indenture,
the other Indenture Documents and applicable laws; provided,
that
(A) any noncash dividends, interest, principal or other distributions, payments
or other consideration in respect thereof, including any rights to receive
the
same to the extent not so distributed or paid, that would constitute Pledged
Securities, to the extent such Pledgor has the rights to receive such Pledged
Securities if they were declared, distributed and paid on the date of this
Agreement, whether resulting from a subdivision, combination or reclassification
of the outstanding Equity Interests of the issuer of any Pledged Securities,
received in exchange for Pledged Securities or any part thereof, or in
redemption thereof, as a result of any merger, consolidation, acquisition or
other exchange of assets to which such issuer may be a party or otherwise or
(B)
any non-cash dividends and other distributions paid or payable in respect of
any
Pledged Securities that would constitute Pledged Securities, to the extent
such
Pledgor has the rights to receive such Pledged Securities if they were declared,
distributed and paid on the date of this Agreement, in connection with a partial
or total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid in surplus, shall be and become part of the
Pledged Collateral, and, if received by any Pledgor, shall not be commingled
by
such Pledgor with any of its other funds or property but shall be held separate
and apart therefrom, shall be held in trust for the benefit of the First Lien
Agent and the Collateral Agent, for the benefit of the Secured Parties, and
shall be forthwith delivered to the First Lien Agent (or, if the First-Lien
Termination Date has occurred, the Collateral Agent), for the benefit of the
Secured Parties, in the same form as so received (endorsed in a manner
reasonably satisfactory to the First Lien Agent (or, if the First-Lien
Termination Date has occurred, the Collateral Agent)).
(b) Subject
to the terms of the Intercreditor Agreement, upon the occurrence and during
the
continuance of an Event of Default and after notice by the Collateral Agent
to
the Issuer of the Collateral Agent’s intention to exercise its rights hereunder,
all rights of any Pledgor to dividends, interest, principal or other
distributions that such Pledgor is authorized to receive pursuant to paragraph
(a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon
become vested, for the benefit of the Secured Parties, in the First Lien Agent
(or, if the First-Lien Termination Date has occurred, the Collateral Agent)
which shall have the sole and exclusive right and authority to receive and
retain such dividends, interest, principal or other distributions. All
dividends, interest, principal or other distributions received by any Pledgor
contrary to the provisions of this Section 3.05 shall not be commingled by
such
Pledgor with any of its other funds or property but shall be held separate
and
apart therefrom, shall be held in trust for the benefit of the First Lien Agent
(or, if the First-Lien Termination Date has occurred, the Collateral Agent),
for
the benefit of the Secured Parties, and shall be forthwith delivered to the
First Lien Agent (or, if the First-Lien Termination Date has occurred, the
Collateral Agent), for the benefit of the Secured Parties, in the same form
as
so received (endorsed in a manner reasonably satisfactory to the First Lien
Agent (or, if the First-Lien Termination Date has occurred, the Collateral
Agent)). Any and all money and other property paid over to or received by the
First Lien Agent (or, if the First-Lien Termination Date has
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(c) Subject
to the terms of the Intercreditor Agreement, upon the occurrence and during
the
continuance of an Event of Default and after notice by the Collateral Agent
to
the Issuer of the Collateral Agent’s intention to exercise its rights hereunder,
all rights of any Pledgor to exercise the voting and/or consensual rights and
powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section
3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of
this Section 3.05, shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, for the benefit of the Secured Parties, which
shall have the sole and exclusive right and authority to exercise such voting
and consensual rights and powers; provided
that,
subject to the terms of the Intercreditor Agreement and the Indenture, unless
the Collateral Agent shall have received written objections from Holders of
at
least 25% in principal amount of the Notes then outstanding, the Collateral
Agent shall have the right from time to time following and during the
continuance of an Event of Default to permit the Pledgors to exercise such
rights. After all Events of Default have been cured or waived and the Issuer
has
delivered to the Collateral Agent a certificate to that effect, each Pledgor
shall have the right to exercise the voting and/or consensual rights and powers
that such Pledgor would otherwise be entitled to exercise pursuant to the terms
of paragraph (a)(i) above.
ARTICLE
IV
SECURITY
INTERESTS IN OTHER PERSONAL PROPERTY
Section
4.01. Security
Interest
(a) As
security for the payment or performance when due (whether at the stated
maturity, by acceleration or otherwise), as the case may be, in full of its
Obligations, each Pledgor hereby assigns and pledges to the Collateral Agent,
its successors and permitted assigns, for the benefit of the Secured Parties,
and hereby grants to the Collateral Agent, its successors and permitted assigns,
for the benefit of the Secured Parties, a security interest (the “Security
Interest”)
in all
right, title and interest in or to any and all of the following assets and
properties now owned or at any time hereafter acquired by such Pledgor or in
which such Pledgor now has or at any time in the future may acquire any right,
title or interest (collectively, the “Article
9 Collateral”):
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(i) all
Accounts;
(ii) all
Chattel Paper;
(iii) all
cash
and Deposit Accounts;
(iv) all
Documents;
(v) all
Equipment;
(vi) all
General Intangibles;
(vii) all
Instruments;
(viii) all
Inventory and all other Goods not otherwise described above;
(ix) all
Investment Property;
(x) all
Letter of Credit Rights;
(xi) all
Commercial Tort Claims;
(xii) all
other
personal property not otherwise described above (except for property
specifically excluded from any defined term used in any of the foregoing
clauses);
(xiii) all
books
and records pertaining to the Article 9 Collateral; and
(xiv) to
the
extent not otherwise included, all proceeds, Supporting Obligations 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.
Notwithstanding
anything to the contrary in this Agreement, this Agreement shall not constitute
a grant of a security interest in (a) any vehicle covered by a certificate
of
title or ownership, whether now owned or hereafter acquired, (b) any Equity
Interests in any Subsidiary of the Issuer, (c) any assets whether now owned
or
hereafter acquired, with respect to which the Collateral and Guarantee
Requirement (as such term is defined in the Credit Agreement) or the other
paragraphs of Section 5.10 of the Credit Agreement as in effect on the date
hereof would not be required to be satisfied by reason of Section 5.10(g) of
the
Credit Agreement if hereafter acquired, (d) any Letter of Credit Rights to
the
extent any Pledgor, is required by applicable law to apply the proceeds of
a
drawing of such Letter of Credit for a specified purpose, (e) any Pledgor’s
right, title or interest in any license, contract or agreement to which such
Pledgor is a party or any of its right, title or interest thereunder to the
extent, but only to the extent, that such a grant would, under the terms of
such
license, contract or agreement, result in a breach of the terms of, or
constitute a default under, or result in the abandonment, invalidation or
unenforceability of, any license, contract or agreement to which such Pledgor
is
a party (other than to the extent that any such term would be rendered
ineffective pursuant to
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Section
9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law
(including, without limitation, Title 11 of the United States Code) or
principles of equity); provided,
that
immediately upon the ineffectiveness, lapse or termination of any such
provision, the Collateral shall include, and such Grantor shall be deemed to
have granted a security interest in, all such rights and interests as if such
provision had never been in effect or (f) any Equipment owned by any Pledgor
that is subject to a purchase money lien or a Capital Lease Obligation if the
contract or other agreement in which such Lien is granted (or the documentation
providing for such Capital Lease Obligation) prohibits or requires the consent
of any person other than the Pledgors as a condition to the creation of any
other security interest on such Equipment.
(b) Each
Pledgor hereby irrevocably authorizes the Collateral Agent at any time and
from
time to time to file in any relevant jurisdiction any initial financing
statements (including fixture filings) with respect to the Collateral or any
part thereof and amendments thereto that contain the information required by
Article 9 of the Uniform Commercial Code of each applicable jurisdiction for
the
filing of any financing statement or amendment, including (i) whether such
Pledgor is an organization, the type of organization and any organizational
identification number issued to such Pledgor, (ii) in the case of a financing
statement filed as a fixture filing, a sufficient description of the real
property to which such Article 9 Collateral relates and (iii) a description
of
collateral that describes such property in any other manner as the Collateral
Agent may reasonably determine is necessary or advisable to ensure the
perfection of the security interest in the Article 9 Collateral granted under
this Agreement, including describing such property as “all assets” or “all
property”. Each Pledgor agrees to provide such information to the Collateral
Agent promptly upon request.
The
Collateral Agent is further authorized to file with the United States Patent
and
Trademark Office or United States Copyright Office (or any successor office
or
any similar office in any other country) such documents as may be reasonably
necessary or advisable for the purpose of perfecting, confirming, continuing,
enforcing or protecting the Security Interest granted by each Pledgor, without
the signature of such Pledgor, and naming such Pledgor or the Pledgors as
debtors and the Collateral Agent as secured party.
(c) The
Security Interest is granted as security only and shall not subject the
Collateral Agent or any other Secured Party to, or in any way alter or modify,
any obligation or liability of any Pledgor with respect to or arising out of
the
Article 9 Collateral.
Section
4.02. Representations
and Warranties.
The Pledgors jointly and severally represent and warrant to the Collateral
Agent and the other Secured Parties that:
(a) Each
Pledgor has good and valid rights in and title to the Article 9 Collateral
with
respect to which it has purported to grant a Security Interest hereunder and
has
full power and authority to grant to the Collateral Agent the Security Interest
in such Article 9 Collateral pursuant hereto and to execute, deliver and perform
its obligations in accordance with the terms of this Agreement, without the
consent or approval of any other person other than any consent or approval
that
has been obtained and is
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in
full
force and effect or has otherwise been disclosed herein or in the
Indenture.
(b) The
Perfection Certificate has been duly prepared, completed and executed and the
information set forth therein, including the exact legal name of each Pledgor,
is correct and complete, in all material respects, as of the Closing Date.
The
Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations containing
a description of the Article 9 Collateral that have been prepared based upon
the
information provided to the Collateral Agent in the Perfection Certificate
for
filing in each governmental, municipal or other office specified in Schedule
IV
hereto
(or specified by notice from the Issuer to the Collateral Agent after the
Closing Date in the case of filings, recordings or registrations required by
Section 4.10 or Section 4.11 of the Indenture) constitute all the filings,
recordings and registrations (other than filings required to be made in the
United States Patent and Trademark Office and the United States Copyright Office
in order to perfect the Security Interest in Article 9 Collateral consisting
of
United States Patents, United States registered Trademarks and United States
registered Copyrights) that are necessary to publish notice of and protect
the
validity of and to establish a legal, valid and perfected security interest
in
favor of the Collateral Agent (for the benefit of the Secured Parties) in
respect of all Article 9 Collateral in which the Security Interest may be
perfected by filing, recording or registration in the United States (or any
political subdivision thereof) and its territories and possessions, and no
further or subsequent filing, refiling, recording, rerecording, registration
or
reregistration is necessary in any such jurisdiction, except as provided under
applicable law with respect to the filing of continuation statements or
amendments. Each Pledgor represents and warrants that fully executed
Intellectual Property Security Agreements containing a description of all
Article 9 Collateral consisting of Intellectual Property with respect to United
States Patents (and Patents for which United States registration applications
are pending), United States registered Trademarks (and Trademarks for which
United States registration applications are pending) and United States
registered Copyrights (and Copyrights for which United States registration
applications are pending) has been delivered for recording with the United
States Patent and Trademark Office and the United States Copyright Office
pursuant to 35 U.S.C. § 261, 15 U.S.C. § 1060 or 17 U.S.C. § 205 and the
regulations thereunder, as applicable, and reasonably requested by the
Collateral Agent, to protect the validity of and to establish a legal, valid
and
perfected security interest in favor of the Collateral Agent, for the benefit
of
the Secured Parties, in respect of all Article 9 Collateral consisting of such
Intellectual Property in which a security interest may be perfected by recording
with the United States Patent and Trademark Office and the United States
Copyright Office, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary (other than such
actions as are necessary to perfect the Security Interest with respect to any
Article 9 Collateral consisting of Patents, Trademarks and Copyrights (or
registration or application for registration thereof) acquired or
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developed
after the date hereof). The Collateral Agent shall not be responsible for the
preparation of the Uniform Commercial Code financing statements and the
Intellectual Property Security Agreements and the filings thereof at any time
or
times.
(c) The
Security Interest constitutes (i) a legal and valid security interest in all
the
Article 9 Collateral securing the payment and performance of the Obligations,
(ii) subject to the filings described in Section 4.02(b), a perfected security
interest in all Article 9 Collateral in which a security interest may be
perfected by filing, recording or registering a financing statement or analogous
document in the United States (or any political subdivision thereof) and its
territories and possessions pursuant to the Uniform Commercial Code or other
applicable law in such jurisdictions and (iii) a security interest that shall
be
perfected in all Article 9 Collateral in which a security interest may be
perfected upon the receipt and recording of the Intellectual Property Security
Agreements with the United States Patent and Trademark Office and the United
States Copyright Office, as applicable. The Security Interest is and shall
be a
second priority Security Interest, prior to any other Lien on any of the Article
9 Collateral, other than Liens in respect of Senior Lender Claims, subject
to
Permitted Liens.
(d) The
Article 9 Collateral is owned by the Pledgors free and clear of any Lien, other
than Permitted Liens. None of the Pledgors has filed or consented to the filing
of (i) any financing statement or analogous document under the Uniform
Commercial Code or any other applicable laws covering any Article 9 Collateral,
(ii) any assignment in which any Pledgor assigns any Article 9 Collateral or
any
security agreement or similar instrument covering any Article 9 Collateral
with
the United States Patent and Trademark Office or the United States Copyright
Office or (iii) any assignment in which any Pledgor assigns any Article 9
Collateral or any security agreement or similar instrument covering any Article
9 Collateral with any foreign governmental, municipal or other office, which
financing statement or analogous document, assignment, security agreement or
similar instrument is still in effect, except, in each case, for Permitted
Liens.
(e) None
of
the Pledgors holds any Commercial Tort Claim individually in excess of $3.0
million as of the Closing Date except as indicated on the Perfection
Certificate.
(f) Except
as
set forth in the Perfection Certificate, as of the Closing Date, all Accounts
have been originated by the Pledgors and all Inventory has been produced or
acquired by the Pledgors in the ordinary course of business.
(g) As
to
itself and its Article 9 Collateral consisting of Intellectual Property (the
“Intellectual
Property Collateral”),
to
the best of each Pledgor’s knowledge:
(i) The
Intellectual Property Collateral set forth on Schedule
III
includes
all of the material Patents, domain names, Trademarks, Copyrights and IP
Agreements owned by such Pledgor as of the date hereof.
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(ii) The
Intellectual Property Collateral is subsisting and has not been adjudged invalid
or unenforceable in whole or part, and to the best of such Pledgor’s knowledge,
is valid and enforceable, except as would not reasonably be expected to have
a
Material Adverse Effect. Such Pledgor is not aware of any uses of any item
of
Intellectual Property Collateral that would be expected to lead to such item
becoming invalid or unenforceable, except as would not reasonably be expected
to
have a Material Adverse Effect.
(iii) Such
Pledgor has made or performed all commercially reasonable acts, including
without limitation filings, recordings and payment of all required fees and
taxes, required to maintain and protect its interest in each and every item
of
Intellectual Property Collateral in full force and effect in the United States
and such Pledgor has used proper statutory notice in connection with its use
of
each Patent, Trademark and Copyright in the Intellectual Property Collateral,
in
each case, except to the extent that the failure to do so would not reasonably
be expected to have a Material Adverse Effect.
(iv) With
respect to each IP Agreement, the absence, termination or violation of which
would reasonably be expected to have a Material Adverse Effect: (A) such Pledgor
has not received any notice of termination or cancellation under such IP
Agreement; (B) such Pledgor has not received any notice of a breach or default
under such IP Agreement, which breach or default has not been cured or waived;
and (C) neither such Pledgor nor any other party to such IP Agreement is in
breach or default thereof in any material respect, and no event has occurred
that, with notice or lapse of time or both, would constitute such a breach
or
default or permit termination, modification or acceleration under such IP
Agreement.
(v) Except
as
would not reasonably be expected to have a Material Adverse Effect, no Pledgor
or Intellectual Property Collateral is subject to any outstanding consent,
settlement, decree, order, injunction, judgment or ruling restricting the use
of
any Intellectual Property Collateral or that would impair the validity or
enforceability of such Intellectual Property Collateral.
Section
4.03. Covenants
(a) Each
Pledgor agrees promptly to notify the Collateral Agent in writing of any change
(i) in its corporate or organization name, (ii) in its identity or type of
organization or corporate structure, (iii) in its Federal Taxpayer
Identification Number or organizational identification number or (iv) in its
jurisdiction of organization. Each Pledgor agrees promptly to provide the
Collateral Agent with certified organizational documents reflecting any of
the
changes described in the immediately preceding sentence. Each Pledgor agrees
not
to effect or permit any change referred to in the first sentence of this
paragraph (a) unless all filings have been made, or will have been made within
any applicable statutory period, under the Uniform Commercial Code or otherwise
that are required in order for the Collateral Agent to
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(b) Subject
to the rights of such Pledgor under the Indenture Documents to dispose of
Collateral, each Pledgor shall, at its own expense, use commercially reasonable
efforts to defend title to the Article 9 Collateral against all persons and
to
defend the Security Interest of the Collateral Agent, for the benefit of the
Secured Parties, in the Article 9 Collateral and the priority thereof against
any Lien that is not a Permitted Lien.
(c) Each
Pledgor agrees, at its own expense, to execute, acknowledge, deliver and cause
to be duly filed all such further instruments and documents and take all such
actions that, subject to the terms of the Intercreditor Agreement and the
Indenture, the Holders of at least 25% in principal amount of the Notes then
outstanding or the Collateral Agent may from time to time reasonably request
to
better assure, preserve, protect, defend and perfect the second priority
Security Interest and the rights and remedies created hereby, including, without
limitation, the payment of any fees and taxes required in connection with the
execution and delivery of this Agreement and the granting of the Security
Interest and the filing of any financing statements (including fixture filings)
or other documents in connection herewith or therewith. If any amount payable
under or in connection with any of the Article 9 Collateral that is in excess
of
$3.0 million shall be or become evidenced by any promissory note or other
instrument, such note or instrument shall be promptly pledged to the Collateral
Agent and delivered to the First Lien Agent (or, if the First-Lien Termination
Date has occurred, the Collateral Agent), for the benefit of the Secured
Parties, duly endorsed in a manner reasonably satisfactory to the First Lien
Agent (or, if the First-Lien Termination Date has occurred, the Collateral
Agent).
Without
limiting the generality of the foregoing, each Pledgor hereby authorizes the
Collateral Agent, with prompt notice thereof to the Pledgors, to supplement
this
Agreement by supplementing Schedule
III
or
adding additional schedules hereto to specifically identify any asset or item
that may constitute material Copyrights, Patents, Trademarks, Copyright
Licenses, Patent Licenses or Trademark Licenses; provided
that any
Pledgor shall have the right, exercisable within 30 days after the Issuer has
been notified by the Collateral Agent of the specific identification of such
Article 9 Collateral, to advise the Collateral Agent in writing of any
inaccuracy of the representations and warranties made by such Pledgor hereunder
with respect to such Article 9 Collateral. Each Pledgor agrees that it will
use
its commercially reasonable efforts to take such action as shall be necessary
in
order that all representations and warranties hereunder shall be true and
correct with respect to such Article 9 Collateral within 30 days after the
date
it has been notified by Collateral Agent of the specific identification of
such
Article 9 Collateral.
(d) Subject
to the terms of the Intercreditor Agreement, after the occurrence of an Event
of
Default and during the continuance thereof, the Collateral Agent shall have
the
right to verify under reasonable procedures the validity, amount, quality,
quantity,
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(e) Subject
to the terms of the Intercreditor Agreement, at its option, the Collateral
Agent
may discharge past due taxes, assessments, charges, fees, Liens, security
interests or other encumbrances at any time levied or placed on the Article
9
Collateral and not a Permitted Lien, and may pay for the maintenance and
preservation of the Article 9 Collateral to the extent any Pledgor fails to
do
so as required by the Indenture or this Agreement, and each Pledgor jointly
and
severally agrees to reimburse the Collateral Agent on demand for any reasonable
payment made or any reasonable expense incurred by the Collateral Agent pursuant
to the foregoing authorization; provided,
however,
that
nothing in this Section 4.03(e) shall be interpreted as excusing any Pledgor
from the performance of, or imposing any obligation on the Collateral Agent
or
any Secured Party to cure or perform, any covenants or other promises of any
Pledgor with respect to taxes, assessments, charges, fees, Liens, security
interests or other encumbrances and maintenance as set forth herein or in the
other Indenture Documents.
(f) Each
Pledgor (rather than the Collateral Agent or any Secured Party) shall remain
liable for the observance and performance of all the conditions and obligations
to be observed and performed by it under each contract, agreement or instrument
relating to the Article 9 Collateral and each Pledgor jointly and severally
agrees to indemnify and hold harmless the Collateral Agent and the Secured
Parties from and against any and all liability for such
performance.
(g) None
of
the Pledgors shall make or permit to be made an assignment, pledge or
hypothecation of the Article 9 Collateral or shall grant any other Lien in
respect of the Article 9 Collateral, except as expressly permitted by the
Indenture and the other provisions hereof. None of the Pledgors shall make
or
permit to be made any transfer of the Article 9 Collateral and each Pledgor
shall remain at all times in possession of the Article 9 Collateral owned by
it,
except as permitted by the Indenture and the other provisions
hereof.
(h) None
of
the Pledgors will, without the Collateral Agent’s prior written consent (which
consent shall not be unreasonably withheld), grant any extension of the time
of
payment of any Accounts included in the Article 9 Collateral, compromise,
compound or settle the same for less than the full amount thereof, release,
wholly or partly, any person liable for the payment thereof or allow any credit
or discount whatsoever thereon, other than extensions, credits, discounts,
compromises or settlements granted or made in the ordinary course of business
and consistent with prudent business practices.
(i) Each
Pledgor irrevocably makes, constitutes and appoints the First Lien Agent (or,
if
the First-Lien Termination Date has occurred, the Collateral Agent) (and all
officers, employees or agents designated by the First Lien Agent (or, if the
First-Lien Termination
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(j)
In the
event any Pledgor shall create any additional security interest upon any
property or assets (other than any assets excluded pursuant to clause (b) of
the
last paragraph of Section 4.01(a)) to secure any Senior Lender Claims it shall
concurrently grant a security interest (second in priority only to Liens in
respect of Senior Lender Claims subject to Permitted Liens) upon such property
as security for the Obligations; provided that if granting a security interest
in such property requires the consent of a third party, such Pledgor shall
use
commercially reasonable efforts to obtain such consent, and if such third party
shall not consent to the granting of such security interest after the use
of such commercially reasonable efforts, such Pledgor shall not be required
to
provide such security interest.
(k) In
the
event any Pledgor shall undertake any actions to perfect or protect any liens
on
any assets pledged in connection with the Credit Agreement or other Senior
Lender Claims, such Pledgor shall also at the same time undertake such actions
with respect to the Collateral for the benefit of the Collateral Agent
without request by the Collateral Agent.
Section
4.04. Other
Actions.
In order to further ensure the attachment, perfection and priority of, and
the ability of the Collateral Agent to enforce, for the benefit of the Secured
Parties, the Collateral Agent’s security interest in the Article 9 Collateral,
each Pledgor agrees, in each case at such Pledgor’s own expense, to take the
following actions with respect to the following Article 9
Collateral:
(a) Instruments
and Tangible Chattel Paper.
If any
Pledgor shall at any time hold or acquire any Instruments (other than checks
received and processed in the ordinary course of business) or Tangible Chattel
Paper evidencing an amount in excess of $3.0 million, such Pledgor shall
forthwith endorse, assign and deliver the same to the First Lien Agent (or,
if
the First-Lien
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Termination
Date has occurred, the Collateral Agent), accompanied by such instruments of
transfer or assignment duly executed in blank as the First Lien Agent (or,
if
the First-Lien Termination Date has occurred, the Collateral Agent) may from
time to time reasonably request.
(i) (b) Investment
Property.
Except
to the extent otherwise provided in Article
III,
if any
Pledgor shall at any time hold or acquire any Certificated Security constituting
Pledged Collateral or Article 9 Collateral, such Pledgor shall forthwith
endorse, assign and deliver the same to the First Lien Agent (or, if the
First-Lien Termination Date has occurred, the Collateral Agent), accompanied
by
such instruments of transfer or assignment duly executed in blank as the First
Lien Agent (or, if the First-Lien Termination Date has occurred, the Collateral
Agent) may from time to time reasonably specify. If any security of a domestic
issuer now owned or hereafter acquired by any Pledgor is uncertificated and
is
issued to such Pledgor or its nominee directly by the issuer thereof, such
Pledgor shall promptly notify the First Lien Agent (or, if the First-Lien
Termination Date has occurred, the Collateral Agent) of such uncertificated
securities and (a) upon the First Lien Agent’s (or, if the First-Lien
Termination Date has occurred, the Collateral Agent’s) reasonable request and
(b) upon the occurrence and during the continuance of an Event of Default,
such
Pledgor shall, pursuant to an agreement in form and substance reasonably
satisfactory to the First Lien Agent (or, if the First-Lien Termination Date
has
occurred, the Collateral Agent), either (i) cause the issuer to agree to comply
with instructions from the First Lien Agent (or, if the First-Lien Termination
Date has occurred, the Collateral Agent) as to such security, without further
consent of any Pledgor or such nominee, or (ii) cause the issuer to register
the
First Lien Agent (or, if the First-Lien Termination Date has occurred, the
Collateral Agent) as the registered owner of such security.
(c) Commercial
Tort Claims.
If any
Pledgor shall at any time hold or acquire a Commercial Tort Claim in an amount
reasonably estimated to exceed $2.0 million, such Pledgor shall promptly notify
the Collateral Agent thereof in a writing signed by such Pledgor, including
a
summary description of such claim, and grant to the Collateral Agent in writing
a security interest therein and in the proceeds thereof, all under the terms
and
provisions of this Agreement, with such writing to be in form and substance
reasonably satisfactory to the Collateral Agent.
Section
4.05. Covenants
Regarding Patent, Trademark and Copyright Collateral.
(a) Each
Pledgor agrees that it will not knowingly do any act or omit to do any act
(and
will exercise commercially reasonable efforts to prevent its licensees from
doing any act or omitting to do any act) whereby any Patent that is material
to
the normal conduct of such Pledgor’s business may become prematurely
invalidated, abandoned, lapsed or dedicated to the public, and agrees that
it
shall take commercially reasonable steps with respect to any material products
covered by any such Patent as necessary and sufficient to establish and preserve
its rights under applicable patent laws.
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(b) Each
Pledgor will, and will use its commercially reasonable efforts to cause its
licensees or its sublicensees to, for each material Trademark necessary to
the
normal conduct of such Pledgor’s business, (i) maintain such Trademark in full
force free from any adjudication of abandonment or invalidity for non-use,
(ii)
maintain the quality of products and services offered under such Trademark,
(iii) display such Trademark with notice of federal or foreign registration
or
claim of trademark or service xxxx as required under applicable law and (iv)
not
knowingly use or knowingly permit its licensees’ use of such Trademark in
violation of any third-party rights.
(c) Each
Pledgor will, and will use its commercially reasonable efforts to cause its
licensees or its sublicensees to, for each work covered by a material Copyright
necessary to the normal conduct of such Pledgor’s business that it publishes,
displays and distributes, use a copyright notice as required under applicable
copyright laws.
(d) Each
Pledgor shall notify the First Lien Agent (or, if the First-Lien Termination
Date has occurred, the Collateral Agent) promptly if it knows that any Patent,
Trademark or Copyright material to the normal conduct of such Pledgor’s business
may imminently become abandoned, lapsed or dedicated to the public, or of any
materially adverse determination or development, excluding office actions and
similar determinations or developments in the United States Patent and Trademark
Office, United States Copyright Office, any court or any similar office of
any
country, regarding such Pledgor’s ownership of any such material Patent,
Trademark or Copyright or its right to register or to maintain the
same.
(e) Each
Pledgor, either itself or through any agent, employee, licensee or designee,
shall (i) inform the Collateral Agent on an annual basis of each application
by
itself, or through any agent, employee, licensee or designee, for any Patent
with the United States Patent and Trademark Office and each registration of
any
Trademark or Copyright with the United States Patent and Trademark Office,
the
United States Copyright Office or any comparable office or agency in any other
country filed during the preceding twelve-month period, and (ii) execute and
deliver any and all agreements, instruments, documents and papers necessary
or
as the Collateral Agent may otherwise reasonably request to evidence the
Collateral Agent’s security interest in such Patent, Trademark or Copyright and
the perfection thereof.
(f) Each
Pledgor shall exercise its reasonable business judgment consistent with the
practice in any proceeding before the United States Patent and Trademark Office,
the United States Copyright Office or any comparable office or agency in any
other country with respect to maintaining and pursuing each application relating
to any Patent, Trademark and/or Copyright (and obtaining the relevant grant
or
registration) material to the normal conduct of such Pledgor’s business and to
maintain (i) each issued Patent and (ii) the registrations of each Trademark
and
each Copyright that is material to the normal conduct of such Pledgor’s
business, including, when applicable and necessary in such Pledgor’s reasonable
business judgment, timely filings of applications for renewal, affidavits of
use, affidavits of incontestability and payment of maintenance fees, and, if
any
Pledgor believes necessary in its reasonable business judgment, to initiate
opposition, interference and cancellation proceedings against third
parties.
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(g) In
the
event that any Pledgor knows or has reason to know that any Article 9
Collateral consisting of a Patent, Trademark or Copyright material to the normal
conduct of its business has been or is about to be materially infringed,
misappropriated or diluted by a third party, such Pledgor shall promptly notify
the First Lien Agent (or, if the First-Lien Termination Date has occurred,
the
Collateral Agent) and shall, if such Pledgor deems it necessary in its
reasonable business judgment, promptly xxx and recover any and all damages,
and
take such other actions as are reasonably appropriate under the
circumstances.
ARTICLE
V
REMEDIES
Section
5.01. Remedies
Upon Default.
Subject to the terms of the Intercreditor Agreement, upon the occurrence
and during the continuance of an Event of Default, each Pledgor agrees to
deliver each item of Collateral to the First Lien Agent (or, if the First-Lien
Termination Date has occurred, the Collateral Agent) on demand, and it is agreed
that the Collateral Agent shall have the right to take any of or all the
following actions at the same or different times: (a) with respect to any
Article 9 Collateral consisting of Intellectual Property, on demand, to cause
the Security Interest to become an assignment, transfer and conveyance of any
of
or all such Article 9 Collateral by the applicable Pledgors to the Collateral
Agent or to license or sublicense, whether general, special or otherwise, and
whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral
throughout the world on such terms and conditions and in such manner as the
Collateral Agent shall determine (other than in violation of any then-existing
licensing arrangements to the extent that waivers thereunder cannot be obtained
with the use of commercially reasonable efforts, which each Pledgor hereby
agrees to use) and (b) with or without legal process and with or without prior
notice or demand for performance, to take possession of the Article 9 Collateral
and without liability for trespass to the applicable Pledgor to enter any
premises where the Article 9 Collateral may be located for the purpose of taking
possession of or removing the Article 9 Collateral and, generally, to exercise
any and all rights afforded to a secured party under the applicable Uniform
Commercial Code or other applicable law or in equity. Without limiting the
generality of the foregoing, each Pledgor agrees that the Collateral Agent
shall
have the right, subject to the mandatory requirements of applicable law, to
sell
or otherwise dispose of all or any part of the Collateral at a public or private
sale or at any broker’s board or on any securities exchange, for cash, upon
credit or for future delivery as the Collateral Agent shall deem appropriate.
The Collateral Agent shall be authorized in connection with any sale of a
security (if it deems it advisable to do so) pursuant to the foregoing to
restrict the prospective bidders or purchasers to persons who represent and
agree that they are purchasing such security for their own account, for
investment, and not with a view to the distribution or sale thereof. Upon
consummation of any such sale of Collateral pursuant to this Section 5.01 the
Collateral Agent shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each such purchaser
at
any such sale shall hold the property sold absolutely, free from any claim
or
right on the part of any Pledgor, and each Pledgor hereby waives and releases
(to the extent permitted by law) all rights of redemption, stay, valuation
and
appraisal that such Pledgor now has or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted.
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To
the
extent any notice is required by applicable law, the Collateral Agent shall
give
the applicable Pledgors 10 Business Days’ written notice (which each Pledgor
agrees is reasonable notice within the meaning of Section 9-611 of the New
York
UCC or its equivalent in other jurisdictions) of the Collateral Agent’s
intention to make any sale of Collateral. Such notice, in the case of a public
sale, shall state the time and place for such sale and, in the case of a sale
at
a broker’s board or on a securities exchange, shall state the board or exchange
at which such sale is to be made and the day on which the Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Collateral Agent may fix and state in the
notice (if any) of such sale. At any such sale, the Collateral, or the portion
thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Collateral Agent may (in its sole and absolute discretion)
determine. The Collateral Agent shall not be obligated to make any sale of
any
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale of such Collateral shall have been given. The Collateral Agent
may, without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and
place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. In the case of any sale of all
or
any part of the Collateral made on credit or for future delivery, the Collateral
so sold may be retained by the Collateral Agent until the sale price is paid
by
the purchaser or purchasers thereof, but the Collateral Agent shall not incur
any liability in the event that any such purchaser or purchasers shall fail
to
take up and pay for the Collateral so sold and, in the case of any such failure,
such Collateral may be sold again upon notice given in accordance with
provisions above. At any public (or, to the extent permitted by law, private)
sale made pursuant to this Section 5.01, any Secured Party may bid for or
purchase for cash, free (to the extent permitted by law) from any right of
redemption, stay, valuation or appraisal on the part of any Pledgor (all such
rights being also hereby waived and released to the extent permitted by law),
the Collateral or any part thereof offered for sale and such Secured Party
may,
upon compliance with the terms of sale, hold, retain and dispose of such
property in accordance with Section 5.02 hereof without further accountability
to any Pledgor therefor. For purposes hereof, a written agreement to purchase
the Collateral or any portion thereof shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and no Pledgor shall be entitled to the return of the Collateral or any portion
thereof subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default shall
have
been remedied and the Obligations paid in full. As an alternative to exercising
the power of sale herein conferred upon it, the Collateral Agent may proceed
by
a suit or suits at law or in equity to foreclose under this Agreement and to
sell the Collateral or any portion thereof pursuant to a judgment or decree
of a
court or courts having competent jurisdiction or pursuant to a proceeding by
a
court-appointed receiver. Any sale pursuant to the provisions of this Section
5.01 shall be deemed to conform to the commercially reasonable standards as
provided in Section 9-610(b) of the New York UCC or its equivalent in other
jurisdictions.
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Section
5.02. Application
of Proceeds.
The Collateral Agent shall promptly apply the proceeds, moneys or balances
of any collection or sale of Collateral, as well as any Collateral consisting
of
cash, as follows:
FIRST,
to
the payment of all costs and expenses incurred by the Collateral Agent or the
Trustee in connection with such collection or sale or otherwise in connection
with this Agreement, any other Indenture Document or any of the Obligations,
including without limitation all court costs and the fees and expenses of its
agents and legal counsel, the repayment of all advances made by the Collateral
Agent or the Trustee hereunder or under any other Indenture Document on behalf
of any Pledgor, any other costs or expenses incurred in connection with the
exercise of any right or remedy hereunder or under any other Indenture Document,
and all other fees, indemnities and other amounts owing or reimbursable to
the
Collateral Agent or the Trustee under any Indenture Document in its capacity
as
such;
SECOND,
to interest due in respect of the Obligations which such Collateral
secures;
THIRD,
to
the principal of the Obligations which such Collateral secured; and
FOURTH,
to the Issuer, its successors or assigns, or as a court of competent
jurisdiction may otherwise direct (provided that the Issuer and Pledgors may
separately allocate such excess proceeds among themselves after delivery by
the
Collateral Agent to the Issuer).
The
Collateral Agent shall have absolute discretion as to the time of application
of
any such proceeds, moneys or balances in accordance with this Agreement. Upon
the request of the Collateral Agent prior to any distribution under this
Section
5.02,
each
Authorized Representative shall provide to the Collateral Agent certificates,
in
form and substance reasonably satisfactory to the Collateral Agent, setting
forth the respective amounts referred to in this Section
5.02,
that
each applicable Secured Party or their Authorized Representative believes it
is
entitled to receive, and the Collateral Agent shall be fully entitled to rely
on
such certificates. Upon any sale of Collateral by the Collateral Agent
(including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of the purchase money by the Collateral Agent or of
the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold and such purchaser or purchasers shall
not
be obligated to see to the application of any part of the purchase money paid
over to the Collateral Agent or such officer or be answerable in any way for
the
misapplication thereof. If, despite the provisions of this Agreement, any
Secured Party shall receive any payment or other recovery in excess of its
portion of payments on account of the Obligations to which it is then entitled
in accordance with this Agreement, such Secured Party shall hold such payment
or
other recovery in trust for the benefit of all Secured Parties hereunder for
distribution in accordance with this Section
5.02.
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Section
5.03. Securities
Act, Etc.
In
view
of the position of the Pledgors in relation to the Pledged Collateral, or
because of other current or future circumstances, a question may arise under
the
Securities Act of 1933, as now or hereafter in effect, or any similar federal
statute hereafter enacted analogous in purpose or effect (such Act and any
such
similar statute as from time to time in effect being called the “Federal
Securities Laws”)
with
respect to any disposition of the Pledged Collateral permitted hereunder. Each
Pledgor understands that compliance with the Federal Securities Laws might
very
strictly limit the course of conduct of the Collateral Agent if the Collateral
Agent were to attempt to dispose of all or any part of the Pledged Collateral,
and might also limit the extent to which or the manner in which any subsequent
transferee of any Pledged Collateral could dispose of the same. Similarly,
there
may be other legal restrictions or limitations affecting the Collateral Agent
in
any attempt to dispose of all or part of the Pledged Collateral under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose
or
effect. Each Pledgor acknowledges and agrees that in light of such restrictions
and limitations, the Collateral Agent, in its sole and absolute discretion,
(a)
may proceed to make such a sale whether or not a registration statement for
the
purpose of registering such Pledged Collateral or part thereof shall have been
filed under the Federal Securities Laws or, to the extent applicable, Blue
Sky
or other state securities laws and (b) may approach and negotiate with a single
potential purchaser to effect such sale. Each Pledgor acknowledges and agrees
that any such sale might result in prices and other terms less favorable to
the
seller than if such sale were a public sale without such restrictions. In the
event of any such sale, the Collateral Agent shall incur no responsibility
or
liability for selling all or any part of the Pledged Collateral at a price
that
the Collateral Agent, in its sole and absolute discretion, may in good xxxxx
xxxx reasonable under the circumstances, notwithstanding the possibility that
a
substantially higher price might have been realized if the sale were deferred
until after registration as aforesaid or if more than a single purchaser were
approached. The provisions of this Section 5.03 will apply notwithstanding
the
existence of a public or private market upon which the quotations or sales
prices may exceed substantially the price at which the Collateral Agent
sells.
ARTICLE
VI
OTHER
SECOND-LIEN OBLIGATIONS
Section
6.01. Other
Second-Lien Obligations.
On or after the Closing Date and so long as permitted by the Indenture,
the Issuer may from time to time designate Other Second-Lien Obligations
permitted to be Incurred under the Indenture and to be secured by a Lien on
the
Collateral as Obligations hereunder by delivering to the Collateral Agent (a)
a
certificate signed by an Officer of the Issuer (i) identifying Other Second-Lien
Obligations so designated and the aggregate principal amount or face amount
thereof, stating that such Other Second-Lien Obligations are designated as
Obligation for purposes hereof, (ii) representing that such designation of
such
obligations as Obligation complies with the terms of each of the Indenture
Documents and Additional Secured Debt Documents and (iii) specifying the name
and address of the Authorized Representative for the holders of such Other
Second-Lien Obligations, (b) a fully executed Additional Secured Party Consent
(in the form attached as Exhibit III hereto); and (c) an opinion of counsel
to
the effect that the designation of such
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ARTICLE
VII
MISCELLANEOUS
Section
7.01. Notices.
All communications and notices hereunder shall (except as otherwise permitted
herein) be in writing and given as provided in Section 13.02 of the Indenture.
All communications and notices hereunder to any Subsidiary Party shall be given
to it in care of the Issuer, with such notice to be given as provided in Section
13.02 of the Indenture.
Section
7.02. Security
Interest Absolute.
All rights of the Collateral Agent hereunder, the Security Interest in the
Article 9 Collateral, the security interest in the Pledged Collateral and all
obligations of each Pledgor hereunder shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Indenture,
any
other Indenture Document, any agreement with respect to any of the Obligations
or any other agreement or instrument relating to any of the foregoing, (b)
any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Obligations, or any other amendment or waiver of or any consent
to
any departure from the Indenture, any other Indenture Document or any other
agreement or instrument, (c) any exchange, release or non-perfection of any
Lien
on other collateral, or any release or amendment or waiver of or consent under
or departure from any guarantee, securing or guaranteeing all or any of the
Obligations or (d) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Pledgor in respect of the
Obligations or this Agreement (other than a defense of payment or
performance).
Section
7.03. Limitation
By Law.
All rights, remedies and powers provided in this Agreement may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law, and all the provisions of this Agreement are
intended to be subject to all applicable mandatory provisions of law that may
be
controlling and to be limited to the extent necessary so that they shall not
render this Agreement invalid, unenforceable, in whole or in part, or not
entitled to be recorded, registered or filed under the provisions of any
applicable law.
Section
7.04. Binding
Effect; Several Agreement.
This Agreement shall become effective as to any party to this Agreement
when a counterpart hereof executed on behalf of such party shall have been
delivered to the Collateral Agent and a counterpart hereof shall have been
executed on behalf of the Collateral Agent, and thereafter shall be binding
upon
such party and the Collateral Agent and their
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Section
7.05. Successors
and Assigns.
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the permitted successors and assigns of
such party; and all covenants, promises and agreements by or on behalf of any
Pledgor or the Collateral Agent that are contained in this Agreement shall
bind
and inure to the benefit of their respective permitted successors and assigns;
provided
that no
Pledgor may assign, transfer or delegate any of its rights or obligations under
this Agreement without the prior written consent of the Collateral Agent.
Written notice of resignation by the Collateral Agent as trustee pursuant to
the
Indenture shall also constitute notice of resignation as the Collateral Agent
under this Agreement. Upon the acceptance of any appointment as the trustee
under the Indenture by a successor Collateral Agent, that successor trustee
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent pursuant
hereto.
Section
7.06. Collateral
Agent’s Fees and Expenses; Indemnification
(a) Subject
to the terms of the Intercreditor Agreement, each Pledgor jointly and severally
agrees to pay upon demand to the Collateral Agent the amount of any and all
reasonable expenses, including the reasonable fees, disbursements and other
charges of its counsel and of any experts or agents, which the Collateral Agent
may incur in connection with (i) the administration of this Agreement, (ii)
the
custody or preservation of, or the sale of, collection from or other realization
upon any of the Collateral, (iii) the exercise, enforcement or protection of
any
rights of the Collateral Agent hereunder or (iv) the failure of any Pledgor
to
perform or observe any of the provisions hereof applicable to it.
(b) Without
limitation of its indemnification obligations under the other Indenture
Documents, each Pledgor jointly and severally agrees to indemnify the Collateral
Agent, the Trustee, the Holders and each Affiliate of the foregoing Persons
(each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of, (i) the execution,
delivery or performance of this Agreement or any other Indenture Document or
any
agreement or instrument contemplated hereby or thereby, the performance by
the
parties hereto and thereto of their respective obligations thereunder or the
consummation of the Transactions and other transactions contemplated hereby,
(ii) the use of proceeds of the Notes or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, or to the
Collateral, whether or not any Indemnitee is a party
-29-
(c) Any
such
amounts payable as provided hereunder shall be additional Obligations secured
hereby and by the other Security Documents. The provisions of this Section
7.06
shall remain operative and in full force and effect regardless of the
termination of this Agreement or any other Indenture Document, the consummation
of the transactions contemplated hereby, the repayment of any of the
Obligations, the invalidity or unenforceability of any term or provision of
this
Agreement or any other Indenture Document, or any investigation made by or
on
behalf of the Collateral Agent or any other Secured Party. All amounts due
under
this Section 7.06 shall be payable on written demand therefor.
Section
7.07. Collateral
Agent Appointed Attorney-in-Fact.
Subject to the terms of the Intercreditor Agreement, each Pledgor hereby
appoints the Collateral Agent the attorney-in-fact of such Pledgor for the
purpose of carrying out the provisions of this Agreement and taking any action
and executing any instrument that the Collateral Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest. The Collateral Agent shall have the right, upon
the occurrence and during the continuance of an Event of Default, with full
power of substitution either in the Collateral Agent’s name or in the name of
such Pledgor, (a) to receive, endorse, assign or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment relating
to the Collateral or any part thereof; (b) to demand, collect, receive payment
of, give receipt for and give discharges and releases of all or any of the
Collateral; (c) to ask for, demand, xxx for, collect, receive and give
acquittance for any and all moneys due or to become due under and by virtue
of
any Collateral; (d) to sign the name of any Pledgor on any invoice or xxxx
of
lading relating to any of the Collateral; (e) to send verifications of Accounts
to any Account Debtor; (f) to commence and prosecute any and all suits, actions
or proceedings at law or in equity in any court of competent jurisdiction to
collect or otherwise realize on all or any of the Collateral or to enforce
any
rights in respect of any Collateral; (g) to settle, compromise, compound, adjust
or defend any actions, suits or proceedings relating to all or any of the
Collateral; and (h) to use, sell, assign, transfer, pledge, make any agreement
with respect to or otherwise deal with all or any of the Collateral, and to
do
all other acts and things necessary to carry out the purposes of this Agreement,
as fully and completely as though the Collateral Agent were the absolute owner
of the Collateral for all purposes; provided,
that
nothing herein contained shall be construed as requiring or obligating the
Collateral Agent to make any commitment or to make any inquiry as to the nature
or sufficiency of any payment received by the Collateral Agent, or to present
or
file any claim or notice, or to take any action with respect to the Collateral
or any part thereof or the moneys due or to become due in respect thereof or
any
property covered thereby. The Collateral Agent and the other Secured Parties
shall be accountable only for amounts actually received as a result of the
exercise of the powers granted to them herein, and neither they nor their
officers, directors, employees or agents shall be responsible to any Pledgor
for
any act or failure to act hereunder, except for their own gross negligence
or
willful misconduct.
-30-
Section
7.08. GOVERNING
LAW. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF
NEW YORK.
Section
7.09. Waivers;
Amendment
(a) No
failure or delay by the Collateral Agent or any Secured Party in exercising
any
right, power or remedy hereunder or under any other Indenture Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy, or any abandonment or discontinuance of steps
to
enforce such a right, power or remedy, preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The rights, powers
and remedies of the Collateral Agent and the Secured Parties hereunder and
under
the other Indenture Documents are cumulative and are not exclusive of any
rights, powers or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by any Indenture Party
therefrom shall in any event be effective unless the same shall be permitted
by
paragraph (b) of this Section 7.09, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
No
notice or demand on any Indenture Party in any case shall entitle any Indenture
Party to any other or further notice or demand in similar or other
circumstances.
(b) Neither
this Agreement nor the Intercreditor Agreement or any provision hereof may
be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Collateral Agent and the Indenture Party or
Indenture Parties with respect to which such waiver, amendment or modification
is to apply, subject to the limitations in the Indenture and the Intercreditor
Agreement or as otherwise provided in the Indenture or the Intercreditor
Agreement.
Section
7.10. WAIVER
OF JURY TRIAL
. EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ANY
OTHER INDENTURE DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
7.10.
-31-
Section
7.11. Severability.
In the event any one or more of the provisions contained in this Agreement
or in any other Indenture Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that
of the invalid, illegal or unenforceable provisions.
Section
7.12. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall constitute an original but all of which when taken together shall
constitute but one contract, and shall become effective as provided in Section
7.04 hereof. Delivery of an executed counterpart to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed
original.
Section
7.13. Headings.
Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
Section
7.14. Jurisdiction;
Consent to Service of Process
(a) Each
party to this Agreement hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York
City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Indenture Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any
such action or proceeding may be heard and determined in such New York State
or,
to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall
be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or
in any other manner provided by law. Nothing in this Agreement shall affect
any
right that the Collateral Agent or any Secured Party may otherwise have to
bring
any action or proceeding relating to this Agreement or any other Indenture
Document against any Pledgor, or its properties, in the courts of any
jurisdiction.
(b) Each
party to this Agreement hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it
may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Indenture Document
in
any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
-32-
Section
7.15. Termination
or Release.
This Agreement, the Security Interest and all other security interests
granted hereby shall terminate only in accordance with the Indenture and
consistent with the Intercreditor Agreement.
Section
7.16. Additional
Subsidiaries.
If, pursuant to the Indenture, the Issuer is required to cause any
Subsidiary that is not a Subsidiary Guarantor to become a Subsidiary Party
to
guarantee the Obligations of the Issuer under the Indenture, upon execution
and
delivery by the Collateral Agent and such Subsidiary of an instrument in the
form of Exhibit
I
hereto,
such Subsidiary shall become a Subsidiary Party hereunder with the same force
and effect as if originally named as a Subsidiary Party herein. The execution
and delivery of any such instrument shall not require the consent of any other
party to this Agreement. The rights and obligations of each party to this
Agreement shall remain in full force and effect notwithstanding the addition
of
any new party to this Agreement.
Section
7.17. Right
of Set-off.
If an Event of Default shall have occurred and be continuing, each Secured
Party is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set-off and apply any and all deposits (general
or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Secured Party to or for the credit or
the
account of any party to this Agreement against any of and all the obligations
of
such party now or hereafter existing under this Agreement owed to such Secured
Party, irrespective of whether or not such Secured Party shall have made any
demand under this Agreement and although such obligations may be unmatured.
The
rights of each Secured Party under this Section 7.17 are in addition to other
rights and remedies (including other rights of set-off) that such Secured Party
may have. Any amounts received by any Holder pursuant to this Section 7.17
should be applied pursuant to Section 5.02.
Section
7.18. Subject
to Intercreditor Agreement.
Notwithstanding anything herein to the contrary, (i) the liens and
security interests granted to the Collateral Agent pursuant to this Agreement
are expressly subject and subordinate to the liens and security interests
granted to (a) the First Lien Agent pursuant to the Credit Agreement, or (b)
any
agent or trustee for any other Senior Lenders and (ii) the exercise of any
right
or remedy by the Collateral Agent hereunder is subject to the limitations and
provisions of the Intercreditor Agreement. In the event of any conflict between
the terms of the Intercreditor Agreement and the terms of this Agreement, the
terms of the Intercreditor Agreement shall govern.
Section
7.19. Senior
Collateral Documents.
The Collateral Agent acknowledges and agrees, on behalf of itself and any
Secured Party, that any provision of this Agreement to the contrary
notwithstanding, until the First-Lien Termination Date, the Indenture Parties
shall not be required to act or refrain from acting pursuant to the Security
Documents or with respect to any Collateral on which the First Lien Agent has
a
Lien superior in priority to the Collateral Agent’s Lien thereon in any manner
that would result in a default under the terms and provisions of the Senior
Collateral Documents.
-33-
[Signature
Page Follows]
-34-
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
day and year first above written.
BPC
ACQUISITION CORP.
By:
___________________________
Name:
Title:
Upon
consummation of the Merger:
BPC
HOLDING CORPORATION
XXXXX
PLASTICS CORPORATION
AEROCON,
INC.
XXXXX
IOWA CORPORATION
XXXXX
PLASTICS DESIGN CORPORATION
XXXXX
XXXXXXXX CORPORATION
XXXXX
PLASTICS TECHNICAL SERVICES, INC.
CARDINAL
PACKAGING, INC.
CPI
HOLDING CORPORATION
KNIGHT
PLASTICS, INC.
XXXXXX
PLASTICS, INC.
PACKERWARE
CORPORATION
PESCOR,
INC.
POLY-SEAL
CORPORATION
VENTURE
PACKAGING, INC.
VENTURE
PACKAGING MIDWEST, INC.
XXXXX
PLASTICS ACQUISITION CORPORATION III
XXXXX
PLASTICS ACQUISITION CORPORATION V
XXXXX
PLASTICS ACQUISITION CORPORATION VII
XXXXX
PLASTICS ACQUISITION CORPORATION VIII
XXXXX
PLASTICS ACQUISITION CORPORATION IX
XXXXX
PLASTICS ACQUISITION CORPORATION X
XXXXX
PLASTICS ACQUISITION CORPORATION XI
XXXXX
PLASTICS ACQUISITION CORPORATION XII
XXXXX
PLASTICS ACQUISITION CORPORATION XIII
XXXX
GROUP, INC.
SAFFRON
ACQUISITION CORP.
SUN
COAST
INDUSTRIES, INC.
XXXXX
PLASTICS ACQUISITION CORPORATION XV, LLC
SETCO,
LLC
TUBED
PRODUCTS, LLC
By:
____________________________________
Name:
Title:
XXXXX
FARGO BANK, N.A.,
as
Collateral Agent
By:
___________________________
Name:
Title:
Exhibit
I
SUPPLEMENT
NO. ______ dated as of _____________ (this “Supplement”),
to
the Collateral Agreement dated as of September 20, 2006 (the “Collateral
Agreement”),
among
BPC HOLDING CORPORATION (as the surviving entity of the merger on Closing Date
between BPC Acquisition Corp. and BPC Holding Corporaiton), a Delaware
corporation, (the “Issuer”),
each
subsidiary of the Issuer identified herein as a party (each, a “Subsidiary
Party”)
and
XXXXX FARGO BANK, N.A., as collateral agent (in such capacity, the “Collateral
Agent”)
for
the Secured Parties (as defined therein).
A. Reference
is made to (i) the Indenture dated as of September 20, 2006 (as amended,
restated, supplemented, waived or otherwise modified from time to time, the
“Indenture”),
among
the Issuer, the Subsidiary Parties and Xxxxx Fargo Bank, N.A., as Trustee (the
“Trustee”)
and
(ii) the Purchase Agreement dated as of September 15, 2006 (as amended,
restated, supplemented, waived or otherwise modified from time to time, the
“Purchase
Agreement”),
among
BPC Acquisition Corp., the several parties named in Schedule I thereto (the
“Initial
Purchasers”)
and,
upon the consummation of the merger on the date of the Collateral Agreement,
BPC
Holding Corporation and the Subsidiary Parties thereto.
B. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Indenture and the Collateral Agreement referred
to
therein.
C. The
Pledgors have entered into the Collateral Agreement in order to induce the
Trustee to enter into the Indenture and the Initial Purchasers to purchase
the
Notes. Section 7.16 of the Collateral Agreement provides that additional
Subsidiaries may become Subsidiary Parties under the Collateral Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the “New
Subsidiary”)
is
executing this Supplement in accordance with the requirements of the Indenture
to become a Subsidiary Party under the Collateral Agreement as consideration
for
credit previously extended to the Issuer.
Accordingly,
the Collateral Agent and the New Subsidiary agree as follows:
SECTION
1. In
accordance with Section 7.16 of the Collateral Agreement, the New Subsidiary
by
its signature below becomes a Subsidiary Party and a Pledgor under the
Collateral Agreement with the same force and effect as if originally named
therein as a Subsidiary Party and a Pledgor, and the New Subsidiary hereby
(a)
agrees to all the terms and provisions of the Collateral Agreement applicable
to
it as a Subsidiary Party and a Pledgor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Pledgor
thereunder are true and correct, in all material respects, on and as of the
date
hereof. In furtherance of the foregoing, the New Subsidiary, as security for
the
payment and performance in full of the Obligations (as defined in the Collateral
Agreement), does hereby create and grant to the Collateral Agent, for the
benefit of the Secured Parties, a security interest in and Lien on all the
New
Subsidiary’s right, title and interest in and to the Collateral (as defined in
the Collateral Agreement) of the New Subsidiary. Each reference to a “Subsidiary
Party” or a “Pledgor” in the Collateral Agreement shall be deemed to include the
New Subsidiary. The Collateral Agreement is hereby incorporated herein by
reference.
Exhibit
I-1
SECTION
2. The
New
Subsidiary represents and warrants to the Collateral Agent and the other Secured
Parties that this Supplement has been duly authorized, executed and delivered
by
it and constitutes its legal, valid and binding obligation, enforceable against
it in accordance with its terms, subject to (i) the effects of bankruptcy,
insolvency, moratorium, reorganization, fraudulent conveyance or other similar
laws affecting creditors’ rights generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (iii) implied covenants of good faith and fair
dealing.
SECTION
3. This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute
but
one contract. This Supplement shall become effective when (a) the Collateral
Agent shall have received a counterpart of this Supplement that bears the
signature of the New Subsidiary and (b) the Collateral Agent has executed a
counterpart hereof.
SECTION
4. The
New
Subsidiary hereby represents and warrants that (a) set forth on Schedule
I
attached
hereto is a true and correct schedule of the location of any and all Article
9
Collateral of the New Subsidiary as of the date hereof, (b) set forth on
Schedule
II
attached
hereto is a true and correct schedule of all the Pledged Securities of the
New
Subsidiary and (c) set forth under its signature hereto, is the true and correct
legal name of the New Subsidiary, its jurisdiction of formation and the location
of its chief executive office.
SECTION
5. Except
as
expressly supplemented hereby, the Collateral Agreement shall remain in full
force and effect.
SECTION
6. THIS
SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS SUPPLEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF
NEW YORK.
SECTION
7. In
the
event any one or more of the provisions contained in this Supplement should
be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and in the
Collateral Agreement shall not in any way be affected or impaired thereby.
The
parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect
of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION
8. All
communications and notices hereunder shall be in writing and given as provided
in Section 7.01 of the Collateral Agreement.
SECTION
9. The
New
Subsidiary agrees to reimburse the Collateral Agent for its reasonable
out-of-pocket expenses in connection with this Supplement, including the
reasonable fees, disbursements and other charges of counsel for the Collateral
Agent.
Exhibit
I-2
IN
WITNESS WHEREOF, the New Subsidiary and the Collateral Agent have duly executed
this Supplement to the Collateral Agreement as of the day and year first above
written.
[Name
of
New Subsidiary]
By:_____________________________
Name:
Title:
Legal
Name:
Jurisdiction
of Formation:
Location
of Chief Executive Office:
XXXXX
FARGO BANK, N.A., as Collateral Agent
By:______________________________
Name:
Title:
Exhibit
I-3
Exhibit
II
to
Collateral Agreement
[Form
of]
PERFECTION
CERTIFICATE
Exhibit
III
to
Collateral Agreement
[Form
of]
ADDITIONAL
SECURED CREDITOR CONSENT
[Name
of
Additional Secured Creditor]
[Address
of Additional Secured Creditor]
[Date]
The
undersigned is the agent or trustee (the “Authorized Representative”) for
persons wishing to become “Secured Parties”
(the
“New
Secured Parties”)
under
the Collateral Agreement dated as of September 20, 2006 (as heretofore amended
and/or supplemented, the “Collateral
Agreement”
(terms
used without definition herein have the meanings assigned to such term by the
Collateral Agreement)) among BPC HOLDING CORPORATION (as the surviving entity
of
the merger on Closing Date between BPC Acquisition Corp. and BPC Holding
Corporation), a Delaware corporation, (the “Issuer”),
each
subsidiary of the Issuer identified herein as a party (each, a “Subsidiary
Party”)
and
XXXXX FARGO BANK, N.A., as collateral agent (in such capacity, the “Collateral
Agent”)
for
the Secured Parties (as defined therein).
In
consideration of the foregoing, the undersigned hereby:
(i) represents
that the Authorized Representative has been authorized by the New Secured
Parties to become a party to the Collateral Agreement on behalf of the New
Secured Parties under that [DESCRIBE OPERATIVE AGREEMENT] (the “New
Secured Obligation”)
and to
act as the Authorized Representative for the New Secured Parties;
(ii) acknowledges
that the New Secured Parties has received a copy of the Collateral
Agreement;
(iii) appoints
and authorizes the Collateral Agent to take such action as agent on its behalf
and on behalf of all other Secured Parties and to exercise such powers under
the
Collateral Agreement as are delegated to the Collateral Agent by the terms
thereof, together with all such powers as are reasonably incidental thereto;
and
Ex
III-1
(iv) accepts
and acknowledges the terms of the Collateral Agreement applicable to it and
the
New Secured Parties and agrees to serve as Authorized Representative for the
New
Secured Parties with respect to the New Secured Obligations and agrees on its
own behalf and on behalf of the New Secured Parties to be bound by the terms
hereof applicable to holders of Other Second-Lien Obligations, with all the
rights and obligations of a Secured Party thereunder and bound by all the
provisions thereof as fully as if it had been a Secured Party on the effective
date of the Collateral Agreement.
The
Collateral Agent, by acknowledging and agreeing to this Additional Secured
Creditor Consent, accepts the appointment set forth in clause (ii)
above.
The
name
and address of the Authorized Representative for purposes of Section 6.01 of
the
Collateral Agreement are as follows:
[name
and address of Authorized Representative]
THIS
ADDITIONAL SECURED PARTY CONSENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Exhibit
III-
Ex
III-2
IN
WITNESS WHEREOF, the undersigned has caused this Additional Secured Party
Consent to be duly executed by its authorized officer as of the ___ day of
20__.
[NAME
OF
AUTHORIZED REPRESENTATIVE]
By:_____________________________________
Name:
Title:
Acknowledged
and Agreed
XXXXX
FARGO BANK, N.A.,
as
Collateral Agent
By:_________________________________
Name:
Title:
BPC
ACQUISITION CORP.
By:
________________________________
Name:
Title:
Upon
consummation of the Merger:
BPC
HOLDING CORPORATION
AEROCON,
INC.
XXXXX
IOWA CORPORATION
XXXXX
PLASTICS DESIGN CORPORATION
XXXXX
XXXXXXXX CORPORATION
XXXXX
PLASTICS TECHNICAL SERVICES, INC.
CARDINAL
PACKAGING, INC.
CPI
HOLDING CORPORATION
KNIGHT
PLASTICS, INC.
XXXXXX
PLASTICS, INC.
PACKERWARE
CORPORATION
PESCOR,
INC.
POLY-SEAL
CORPORATION
VENTURE
PACKAGING, INC.
Ex
III-3
VENTURE
PACKAGING MIDWEST, INC.
XXXXX
PLASTICS ACQUISITION CORPORATION III
XXXXX
PLASTICS ACQUISITION CORPORATION V
XXXXX
PLASTICS ACQUISITION CORPORATION VII
XXXXX
PLASTICS ACQUISITION CORPORATION VIII
XXXXX
PLASTICS ACQUISITION CORPORATION IX
XXXXX
PLASTICS ACQUISITION CORPORATION X
XXXXX
PLASTICS ACQUISITION CORPORATION XI
XXXXX
PLASTICS ACQUISITION CORPORATION XII
XXXXX
PLASTICS ACQUISITION CORPORATION XIII
XXXX
GROUP, INC.
SAFFRON
ACQUISITION CORP.
SUN
COAST
INDUSTRIES, INC.
XXXXX
PLASTICS ACQUISITION CORPORATION XV, LLC
SETCO,
LLC
TUBED
PRODUCTS, LLC,
each
as
Pledgor
By:_________________________________
Name:
Title:
Ex
III-4
Schedule
IV
to
Collateral Agreement
Filings
Offices
[TO
BE
ATTACHED]
